Alodio BARRAZA, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 234-88
Court of Criminal Appeals of Texas, En Banc.
June 20, 1990.
790 S.W.2d 654
Carlos Valdez, County Atty., Robert J. Gonzalez, Jay M. Wright, Asst. County Attys., Corpus Christi, and Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
PER CURIAM.
A jury found appellant, Alodio Barraza, Jr., guilty of driving while intoxicated. The trial court placed him on probation for two years and assessed a fine of $360.00. He appealed to the Corpus Christi Court of Appeals asserting the trial court had erred in refusing to grant his motion to quash the information because it failed to allege the manner of intoxication. The Court of Appeals upheld the trial court‘s denial of appellant‘s motion to quash, Barraza v. State, 733 S.W.2d 379, 382 (Tex.App.-Corpus Christi 1987), and we granted appellant‘s petition for discretionary review to examine the lower appellate court‘s opinion. We affirm.
Appellant was charged by information with driving while intoxicated, conduct proscribed by
“(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body; or
“(B) having an alcohol concentration of 0.10 or more.”
Recently in Solis v. State, 787 S.W.2d 388 (Tex.Cr.App.1990), this Court held that a charging instrument need not allege which of the two ways a рerson is deemed to be intoxicated when charging an offense for driving while intoxicated. This Court determined:
“Because the methods of proving intoxication by alcohol are set out statutorily and do not depend on any conduct committed by a defendant, other than introduction of alcohol into the body—which was already alleged—the State need not specify in the charging instrument whether it will use loss of faculties or alcohol content to prove the offense.” 787 S.W.2d at 391.
Accord State v. Winskey, 790 S.W.2d 641 (Tex.Cr.App.1990). But see Garcia v. State, 747 S.W.2d 379, 381 (Tex.Cr.App.1988) (charging instrument alleging offense under
As such, the Court of Appeals correctly decided the trial court in this case did not err in refusing to quash the information for its failure to allege only one of the two ways in which appellant was intoxicated. The Court of Appeals’ opinion is affirmed.
TEAGUE, J., dissents.
Allen Scott RUSSELL, Appellant, v. The STATE of Texas, Appellee.
No. 234-88
Court of Criminal Appeals of Texas, En Banc.
June 20, 1990.
David J. Adkins, Abilene, for appellant.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
WHITE, Judge.
On April 23, 1987, appellant was adjudged guilty of aggravated robbery and sentenced to a ninety-nine year term in the state penitentiary after the sentencing jury had found an enhancement allegation to be “true.”
On direct appeal, the Court of Appeals held, inter alia, that the Statе had failed to prove the finality of the conviction used to enhance appellant‘s punishment. Russell v. State, 744 S.W.2d 699 (Tex.App.-Eastland 1988). The court then proceeded to apply a harmless error analysis to this failure of proof, and decided that the insufficiency of the State‘s evidence concerning the enhancement was harmless error. The enhancement finding was deleted, but the judgment of the trial court, as reformed, was then affirmed. We granted review of this holding and will now reverse the judgment of the Court of Appeals and remand to the trial court.
A harmless error analysis should not be undertaken when the State fails to meet its burden of proof. This general principle was applied in the context of convictions used for enhancement in Jones v. State, 711 S.W.2d 634 (Tex.Cr.App.1986). In that case, the indictment charged the prior commission of an offense which the State sought to use for enhancement purposеs. The evidence, however, failed to prove that the conviction was final, as required by the terms of the indictment. Judge Teague, writing for a unanimous Court, stated
The averment in an indictment that an accused person has been convicted is sufficient to charge the finality of the prior felony conviction. However, this does not mean that such an averment is self-proving. Scott v. State, 553 S.W.2d 361
(Tex.Cr.App.1977). It is a mere pleading and it is now axiomatic that a pleаding is never self-proving. To hold otherwise would render the State‘s burden of proof meaningless. Id. at 635.
It is well settled that a conviction from which an appeal has been taken is not considered to be final until the conviction is affirmed and the court‘s mandate of affirmance becomes final. Jones at 636; Carter v. State, 510 S.W.2d 323 (Tex.Cr.App.1974). In the instant case, the judgment for the prior conviction relied on for enhancement recited on its face that “Defendant gave Oral Notice of Appeal this Date in Open Court, November 30, 1982.” The only other evidence concerning the judgment‘s finality consisted of testimony from a probation officer who stated that she had no knowledge whether appellant‘s prior conviction had become final prior to the date of the instant offense. This evidence is insufficient to satisfy the predicate necessary for the conviction‘s use to enhance. Jones at 636.
The burden is on the State to make a prima facie showing that any prior conviction used for enhancement became final before the commission of the primary offense. Id. at 635; Diremiggio v. State, 637 S.W.2d 926, 928 (Tex. Cr. App.1982). Since the State failed to meet its burden to prove the enhancing conviction‘s finality, the proper remedy is a reversal and remand. Jones at 636. See also McGinnis v. State, 746 S.W.2d 479 (Tex.Cr.App.1988); Glorioso v. State, 753 S.W.2d 454, 455-456 (Tex.App.-Houston [14th Dist.] 1988); Sherman v. State, 750 S.W.2d 855, 856-857 (Tex.App.-Houston [14th Dist.] 1988); Foster v. State, 727 S.W.2d 45 (Tex.App.-Beaumont 1987). The State is prohibited from future use of the insufficiently proved prior conviction for the purpose of attempting to enhance the appellant‘s punishment for the primary offense. Jones at 636 and the cases cited therein.
The judgment of the Court of Appeals is reversed and this cause is remanded to the trial court.
McCORMICK, P.J., concurs in the result.
TEAGUE, Judge, concurring on appellant‘s petition for discretionary review.
The record reflects that the jury convicted Allen Scott Russell, henceforth appellant, of aggravated robbery, a first degree felony. Punishmеnt, enhanced with one prior conviction for the offense of felony escape,1 was assessed by the jury at 99 years’ confinement in the Department of Corrections.2
On direct appeal to the Eastland Court of Appeals, appellant asserted, inter alia, that the State failed to prove that the alleged prior felony conviction of escape had become final. The State agreed with appellant‘s contention, which is understandable given the fact that the sentence that pertains to the escape conviction clearly reflects thereon the following: “Defendant gave Oral Notice of Appeal this Date in Open Court, November 30, 1982.” At that time, giving oral notice of appeal was permitted to invoke the jurisdiction of the intermediate appellate court over the appeal.
Given the state of the law at this time that governs the permissible use of a valid final prior felony conviction for enhancement of punishment purposes, I agree with the State‘s concession of error and the decision by the court of appeals to sustain appellant‘s ground of error that the alleged prior felоny conviction of escape that appellant previously sustained should not have been admitted into evidence because the State did not show that it had become a final conviction prior to the commission of the alleged primary offense. In Jones v. State, 711 S.W.2d 634 (Tex.Cr.App.1986), this Court held in an almost identical factual situation as here that where the State introduces into evidence the judgment of conviction or sentence that pertains to an alleged prior felony conviction, and the judgment or sentence reflects that notice of appeal had been given in that cause, “It then becomes the State‘s further duty to show the final disposition of such appeal.” (636). Of course, when the State itself introduces into evidence, as occurred in Jones and in this cause, a judgment of conviction or sentence that reflects a lack of finality in the prior conviction, the State then has the burden to establish the finality of the alleged prior conviction. In that instance, “the State itself raised the question as to what disposition was made of the appeal. It thus had the burden of proof to establish what disposition was made of the appeal.” Id., at page 636. Also see McGinnis v. State, 746 S.W.2d 479 (Tex.Cr.App.1988); Glorioso v. State, 753 S.W.2d 454, 455-456 (Tex.App.-Houston [14th Dist.] 1988); Sherman v. State, 750 S.W.2d 855, 856-857 (Tex.App.-Houston [14th Dist.] 1988); Foster v. State, 727 S.W.2d 45 (Tex.App.-Beaumont 1987).
The court of appeals, after finding that error existed, because of the admission into evidence of the non-final felony conviction, nevertheless found that the error did not make any contribution to one of the maximum possible punishments, 99 years’ confinement in the penitentiary, which the jury assessed appellant. Thereafter, the court of appeals, after reforming the judgment by deleting the enhancement finding, affirmed the trial court‘s judgment. We granted the appellant‘s petition for discretionary review in order to make the determination whether the court of appeals’ decision that the error was harmless beyond a reasonable doubt was correct.
To better understand the court of appeals’ rationale why it concluded that the error was harmless beyond a reasonable doubt to appellant, I believe that it is necessary to set out some additional facts of the case.
The record reflects that appellant was placed on probation on March 23, 1982, for committing the offense of burglary of a motor vehicle. It also reflects that on September 24, 1982, his probation was revoked for committing the offense of escape from his probation officer‘s office. Appellant received a five year prison sentence on the burglary conviction and a three year prison sentence on the escaрe conviction, to be served consecutively. Although the record is clear that appellant appealed his prior
In reaching its holding that the error was harmless under
The court of appeals next considered the fact that the jury was instructed that the minimum possible punishment that the jury could assess, both with and without enhancing the punishment through the use of the prior esсape conviction, was either five (5) years’ confinement in the penitentiary or 15 years’ confinement in the penitentiary. Without explanation, the court of appeals concluded: “The record is clear that the jury was not considering the minimum sentence [neither the 5 year nor the 15 year minimum].” It appears that the court reached this conclusion because (1) there was in evidence the fact that appеllant had previously sustained two prior felony convictions, or (2) because appellant‘s counsel argued to the jury for it not to assess appellant‘s punishment at anything greater than 25 years’ confinement in the penitentiary. The issue, however, is whether the erroneous admission into evidence of the prior non-final felony conviction for escape made any contribution to the jury‘s assessment of 99 years’ confinement in the penitentiary as appellant‘s punishment, and not whether the jury was or was not considering anything from 5 years to 99 years or anything from 15 years to 99 years, nor whether the jury was treated to a showing that appellant had previously sustained two prior felony convictions, nor whether appellant‘s trial attorney argued for a sentence that exceeded either minimum sentence.
Lastly, the court of appeals appears to have placed some reliance upon this Court‘s decision of Swoape v. State, 658 S.W.2d 600 (Tex.Cr.App.1983). “See also Swoape v. State, 658 S.W.2d 600 (Tex.Cr.App.1983), where the Court of Criminal Appeals came to the same conclusion even before the adoption of
I first point out that when Swoape was decided by this Court, “It ha[d] long been a general rule that a prior conviction cannot be used more than once to enhance punishment ... And this rule has been held to apply when two cases are tried together....” Swoape, at 601. However, by the time the defendant Swoape‘s appeal was decided, the law had changed to permit the use of a prior conviction any number of times for the purpose of enhancing punishment. See
The facts in Swoape reflect that the defendant was convicted on two counts in the same indictment of aggravated robbery. One prior felony conviction was alleged to enhance the punishment. Punishment on the first count was assessed at fifty (50) years’ confinement in the penitentiary; on the second count, ninety-nine (99) years‘, with the same prior conviction being used to enhance punishment on both convictions. This Court held that given the state of the law when the defendant was convicted and punished, the prior conviction was available to enhance punishment under the first count of the indictment, but not available to enhance punishment under the second
I find that the court of appeals in this cause used thе same rationale that this Court used in deciding the issue in Swoape. I also now find that the rationale that was used in Swoape is extremely flawed. To the extent that Swoape conflicts with what we hold in this cause, it is expressly overruled.
As previously pointed out, the defendant in Swoape received two punishments; one, enhanced, for 99 years; the other, unenhanced, for 50 years. In reforming the 99 year sentence in Swoape to “not less than five years nor more than 99 years,” this amounted to this Court assessing the defendant‘s punishment to not less than 5 years nor more than 99 years. However, our law is clear that this Court at that time did not have the lawful authority to assess punishment. See Ocker v. State, 477 S.W.2d 288, 290 (Tex.Cr.App.1972). Cf.
In Uribe v. State, 688 S.W.2d 534 (Tex.Cr.App.1985), this Court held that “an appellate court will not presume that the jury would have assessed the same punishment if the jury had been correctly instructed that the law holds the offense to deserve a lesser maximum punishment.” (538). This Court in Uribe also held that “The submission to the jury of a penalty range more severe than that authorized by law deprived appellants of a fair and impartial trial, even though the jury аssessed punishment within the lawful range.
Here, there is no question that the trial court erred in submitting to the jury the enhancement allegation in the 99 year case, i.e., the jury should have been instructed that the range of punishment was not less than 5 years nor more than 99 years or life imprisonment and a possible fine up to $10,000. I am unable to state beyond a reasonable doubt that had the jury not been instructed on enhancement of punishment it would have still assessed appellant‘s punishment at 99 years’ confinement in the penitentiary. Furthermore, the error became aggravated when the district attorney argued to the jury that the prior conviction was a final conviction, when he knew or should have known under our law that it was not a final conviction, and also argued to the jury that the burden of proof was on appellant to prove that the prior conviction was not final, when it was the
Therefore, I concur.
Travis CARTER, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 979-89
Court of Criminal Appeals of Texas, En Banc.
June 20, 1990.
in Carter v. State, 770 S.W.2d 604 (Tex.App.-Fort Worth 1989).
The Fort Worth Court of Appeals concluded that “the factors in this case indicate beyond a reasonable doubt the unconstitutiоnal jury charge made no contribution to the punishment assessed.” Id., at 606. Certain particulars of its rationale are at odds with the findings and holdings of this Court in Arnold v. State, 784 S.W.2d 372 (Tex.Cr.App.1990), and the term of sixty years is suspect under the “one-third rule,” id., at 383-394. But we are satisfied that a rational appellate court could determine and declare that the error did not influence the jury adversely to appellant in assessing punishment, Arnold, supra, at 377, that it made no contribution to punishment assessed against аppellant, id., at 390.
Therefore, while its reasons for decision are incorrect, the judgment of Fort Worth Court of Appeals is ultimately correct. Thus I would also refuse the PDR.
Steven H. Swander (court appointed on appeal only), Fort Worth, for appellant.
Tim Curry, Dist. Atty. and C. Chris Marshall and Helen T. Dhooghe, Asst. Dist. Attys., Fort Worth, Robert Huttash, State‘s Atty., Austin, for the State.
TEAGUE, J., would grant the petition.
CLINTON, Judge, concurring Opinion On Appellant‘s Petition For Discretionary Review.
This is a “Rose harm” case. Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987). The facts of the case and circumstances of the aggravated sexual assault with a deadly weapon are set out in the opinion below
Steven Anthony BUTLER, Appellant, v. The STATE of Texas, Appellee.
No. 70745
Court of Criminal Appeals of Texas, En Banc.
June 20, 1990.
Andrew L. Jefferson, Jr., Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr., George Lambright, Belinda Hill and Maria Hayes, Asst. Dist. Attys., Houston, Robert Huttash, State‘s Atty., Austin, for the State.