*1 capacity proof will excuse of the ROBINSON, Appellant,
Hagedorn requirement. If the “officer James negli- attorney, court” applicant’s is the relief. gence justify equitable alone will not fraudulently, attorney if the acts suit, a bill and such is extrinsic to the fraud upon this granted proof
of review will ele- remaining fraud and two proof Antonio. review; de- ments of bill of meritorious negligence part fense and no 29, 1986. applicant. holding to the does no violence permitting some finality. While
rule re flexibility Hagedorn as to the second requirements quirement, the first and third remain, Appli and essential. invariable attorney asserting
cants fraud their diligence lack personal must show no discovery of reaction to negligence in fraud, every only during trial but process. In this stage litigation sufficiency of only cause we address pleading to assert extrinsic fraud on attorney. the Briscoes’s is re- of the trial court versed and cause is remanded.
BUTTS, J., dissents.
ESQUIVEL, J., joins dissent without opinion.
BUTTS, Justice, dissenting. respectfully
I dissent. is an unnec- This essary departure bill rules of review
enunciated in Alexander v. Hagedorn.
294
OPINION
DIAL, Justice. by jury defendant was convicted a for the of a burglary offense of habitation. alleged To one for conviction enhance- pleaded ment the defendant Pun- “true.” by jury forty- ishment was assessed the (45) years’ five confinement. appellant’s complains of of the refusal the trial permit appellant to separate to have juries pass guilt/innocence on the of issue punishment. and the issue of Before the voir jury commencement dire panel appellant orally sepa- moved juries guilt/innocence pun- rate for the and phases ishment impanelled. be After the jury guilty, appel- returned a verdict of request lant made a similar in a written appellant’s motion. The contention then by having jury now the same guilt/innocence determine punishment, deprived adequate he was of an voir dire of prospective jurors en- punishment hancement of preju- without impartial dicing rights jury to an on the guilt/innocence. issue of appellant’s right a to full jury panel fair voir dire is well ex established. But right impanell- to a necessity tend this for ing during punishment a second phase authority. the trial is In- without deed the state federal constitutional right by jury of a does not trial extend right punishment. to have a assess 13, 19-20 Bullard v. Spaziano See Florida, 447, 3154, 3163, 468 U.S. 104 S.Ct. 340, (1984) (holding 82 L.Ed.2d death required constitutionally sentence not imposed by procedural jury). laws Dean, Antonio, ap- Franklin X. San for are crafted so that the trier fact pellant. solely guilt concerned the issue Jr., Amos, particular Millsap, offense Sam Karen Daniel uninfluenced evidence may Thornberry, Attys., habitually Criminal Dist. An- the defendant tonio, appellee. engaged for in other misconduct. But applicable
rules of evidence sentenc- CADENA, C.J., Before ing process and TIJERINA are relaxed and much broader DIAL, York, JJ. in scope. v. New 337 U.S. Williams “(a) (1949). part: person A commits 69 S.Ct. L.Ed. Appellant’s only Legis- remedy is with the the own- if without lature. er, (3) building or hab- he: enters a ... attempts commit itation and commits
Ground of error one is overruled. felony or theft.” Appellant’s *3 concerning in limine relates to motion language The indictment tracks the The asks that the prior convictions. motion is unless the statute and sufficient permitted to refer in prosecution not be are quash the motion to sought facts prior the de any manner to convictions of State, give notice. Santana essential hearing had been held out fendant until presence side the to determine quash alleged: The motion to felony prior conviction was a whether the is defective in that it fails The indictment involving turpi- or a misdemeanor moral in it does not tude, allege that whether it occurred while the defend- juvenile, it was too allege entry ant was a whether that defendant’s into the bearing present on credibili- remote to ‘without the effective con- habitation was ty, prejudicial effect would whether Entry into a hab- sent of the owner.’ outweight probative relevance on credi- consent itation without effective was the bility, and whether the defendant an essential element of the the owner is person who committed the same allega- burglary. The offense of State’s obviously prior offense. This motion attempt in indictment that the tion said intended to shield the defendant of theft was to commit and commission impeachment cross-examination and as ‘without the effective consent convictions without a witness allege is not sufficient to that owner’ preliminary hearing. ground entry was without said consent. reading error is directed at the State seeking addi- quash The motion to is not begin- count to the at the enhancement complaining ning punishment phase. apparently motion It is The tional facts. sufficiently specific in limine was phrase did not insert the the State inform the trial that the defendant of the own- the effective consent “without hearing alle- desired the enhancement phrase “enter a habitation.” er” after they gations jury. before were read to the appellant was not We fail to see how the Furthermore, plea the defendant entered a charged or what he was put on notice of in paragraph of “true” to the enhancement way. The any harmed in was misled or Any the indictment. error is waived. ground of error is overruled. third (Tex. Dinn v. S.W.2d Crim.App.1978). Ground of error two com fourth overruled. fundamentally the indictment is plains that complains The third paragraph does defective because the denying the trial court motion dignity “against peace not conclude quash in that the indictment does not of the State.” allege entry that the into the hab- properly con- say that the indictment itation was without effective Suffice alleges perti- The indictment the owner. on two paragraphs of two written sists appellant: “Did then and nent language requisite concluding pages. intentionally knowingly enter a there paragraph. The indict- the second follows habitation, and therein to commit ment is sufficient. theft, committed without the is affirmed. of conviction Peeler, of Alfonso C. the owner consent CODE said habitation ...” TEX.PENAL J., (Vernon CADENA, provides concurs. Supp.1985) 30.02
ANN. § CADENA, Justice, concurring.
I agree that the indictment is sufficient. merely It goes beyond the statutory re- quirements alleges entry theft, intention to commit or the com- theft, mission of were without the owner’s consent. *4 LOPEZ, Appellant,
Pascual San Antonio. 1986.