729 S.W.2d 365 | Tex. App. | 1987
Appellant was convicted by a jury of possession of a controlled substance with intent to deliver. After finding two prior convictions, they assessed his punishment at confinement in the Texas Department of Corrections for life. Appellant’s counsel originally filed a “frivolous” brief which complied with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and High v. State, 573 S.W.2d 807 (Tex.Crim.App.1978). Attached to the brief was a copy of a letter informing appellant of his right to review the record and prepare a pro se brief. Relying on this representation and, after allowing appellant a reasonable time to file such a brief, this court affirmed the conviction in an unpublished opinion. Thereafter, appellant filed a post-conviction writ of habeas corpus and the trial court recommended the Court of Criminal Appeals deny the relief. The Court of Criminal Appeals, however, ordered that appellant be granted an “out-of-time appeal” and that appellant be returned to the point at which he requested the record. This court subsequently recalled the original mandate and issued an order allowing appellant sufficient time to review the record and file a pro se brief. Appellant brings forth two points of error. Each point of error complains of the use of one of the prior convictions and the introduction of the “pen packets” before the jury because the conviction was void and the judgment is neither definite nor certain as to the punishment assessed.
The State urges that the point has not been preserved for review since appellant’s trial counsel only objected to the introduction of the “pen packets” based upon hearsay and thus, under Hill v. State, 633 S.W.2d 520 (Tex.Crim.App.1982), the failure to object to the introduction of proof of an allegedly void prior conviction precluded a defendant from attacking a conviction that utilized that prior conviction. We agree with the State and this alone is reason enough to overrule appellant’s points of error.
However, had there been a proper objection, we would still overrule the points. Appellant’s prior convictions were in 1966 and 1972, respectively. At that time the indeterminate sentence law was in effect, TEX. CODE CRIM.PROC.ANN. art. 42.09, sec. 1 (Vernon 1979), which required the judge to fix the sentence at the minimum term as the lowest term and as the maximum as the term stated in the verdict.
In each instance, the prior conviction shows the verdict was a certain number of years and then the judgment applies the indeterminate sentence law by assessing the minimum punishment as that minimum required by law and by assessing the maximum as that set by the verdict. This was correct and proper under the then existing statute. Both points of error are overruled. The judgment of the trial court is affirmed.
AFFIRMED.
. The article has been amended and the indeterminate sentence law abolished by Acts 1981, 67th Leg., pg. 810, ch. 291, sec. 117, effective September 1, 1981.