*1 361 940, 934, jury con- fornia, could 89 S.Ct. U.S. severity “prior of his range and statement sider that (1969), because such L.Ed.2d phrase that does guilt. criminal conduct”—a did not affect his prior of his necessarily embrace “details” stage penalty at the It was admissible was that principle enunciated offenses—the trial, but was not offered. it by the exercised “quality of discretion” Next, trial court he contends that applied” in which is jury and “the manner four admitting the details of my controlled.” are what “must be punishment into evidence at the convictions view, we enhance neither Specifically, the after admit- phase. today. the Court rendered judgments of the convic- ting four I Accordingly, respectfully tions, witnesses to stand to the details of the events who testified PHILLIPS, J., joins. bases the convictions. which formed the 37.071, V.A.C.C.P., expressly Article evidence
permits introduction punishment the court deems relevant at the In Jurek v. phase. (1976), Unit Supreme ed States Court held must have relevant information deliberating fate of them when on the SWABADO, Appellant, One of the factors listed defendant. as relevant in Robinson v. range and (Tex.Cr.App.1973), was the Texas, Appellee. The STATE severity of a criminal con 59,434. No.
duct. Evidence of conduct held admissible in the absence of evidence Appeals of Court of Criminal of a final conviction. Felder En Banc. (Tex.Cr.App.1978). This Court March 1980. the details of a has also held admissible crime committed one month after crime Rehearing April Denied at bar. Green v. (Tex.Cr.App.1979). There admitting error in the evidence. no
There is no reversible error. ment is affirmed.
CLINTON, Judge, dissenting. my opinion heading the Court is tendency to con- constitutional trouble its 37.071, V.A.C.C.P., as carte strue every receiving any bit of blanche against an accused. derogatory evidence This, believe, purpose I turns the interpretative gloss as well as the
provision, given by Supreme of intent Jurek v. the United States Indeed, while this (1976), head. on its say opinion, in its Jurek Court did
(c) An under this section is a A misdemeanor unless actor’s Class another, intent is to defraud or harm in felony which event the offense is a degree. third in this case appellant 12, 1976, January . on or about unlawfully and and did then there know- ingly entry government make a in a false record, namely Nursing Facility a Month- Staffing recording ly Report by the em- ployment of a licensed vocational nurse employed, who was not in fact with in- tent to harm another. defraud and SECOND COUNT Texas, County, Jury The Grand of Harris present in the District Court Harris County, County, in Harris Swabado, styled hereafter Defendant, on or heretofore about 11, 1976, February did then and there unlawfully knowingly make false and a record, government namely in a a entry Lawrence, Houston, Paul R. Nursing Facility Monthly Staffing Re- lant. employment port by recording the Vance, Atty., Dist. and Robert A. Carol S. licensed who was in vocational nurse Houston, Shults, Dist. Robert Atty., Asst. employed, fact with intent defraud and Huttash, Austin, for Atty., State’s harm another. State.
THIRD COUNT County, Texas, Harris Jury Grand OPINION in Harris present the District PHILLIPS, Judge. County, County, in Harris conviction for This is an from a Swabado, Texas, Betty styled hereafter tampering government with a record. V.T. Defendant, heretofore Code, Punish- Penal Section 37.10. C.A. there unlawful- did then imprisonment years, probat- ment is entry make a false ly knowingly
ed.
record, namely a Nursing
Staffing Report
Facility
by re-
Monthly
the trial court
Appellant contends that
cording
of a licensed vo-
employment
overruling
in
her motion
not in fact em-
cational nurse who was
agree, and reverse.
indictment. We
with
to defraud and harm
ployed,
37.10, supra,
part:
provides
Section
another.
if he:
(a)
person
A
commits an offense
filed a motion to
Prior to trial
in,
entry
(1) knowingly
a false
makes
indictment,
part
urging quash the
of,
governmental
alteration
or false
indictment, charging
récord;
Defend-
“the instant
Further,
is that
the rule
tampering
with a
ant with the offense
record,
ambigu-
intelligible
vague
plain
should be
hearing,
over-
ous.” The court held
to enable
with
words
quash.
At trial
ruled
will be
the accused to know
elected to dismiss
second
to en-
against and
to defend
third counts of the indictment.
*3
judgment
to
the
that
able him
first
appellant guilty under
the
found
on
in bar of
further
Appellant urges on
count.
.
same offense.
prosecution for the
ambiguous,
to
vague,
is
and fails
indictment
adequate
of
offense
give
notice
the
appellant, the indict
urged by
As
charged.
to meet these basic
in this case fails
long
This Court has
held that to be suffi-
requirements.
notice
cient an indictment
First,
to
fails
the indictment
. should set out
particular
the
records.
identify
the
offense charged with
as
alleges only
the record
In each count it
that
that a presumptively innocent
seek-
man
Monthly Staffing Re-
“Nursing Facility
is a
ing to know what he
must meet
port.” The
reflects that
record
ascertain fully therefrom the matters
for
Lewis
as administrator
the
worked
charged against him.
.
return
Nursing
years
Home
to the
for
State,
Hardin v.
211 S.W.
indictment, and,
required by
rules
the
of
(1919).
State,
See also Earl v.
33 Tex.
Welfare, filed
Public
Department
of
Cr.R.
(1894);
S.W.
Brown v.
during this
staffing report each month
State,
26 Tex.App.
that the was proof subsequent prosecution upon bar a that viction be had offense, (3) give same the defend- at was committed time precisely charged ant notice of what he is within which is the return the indictment with. Hill v. period limitation. Terry v. (Tex. v. (Tex.Cr.App.1976); Nees
Cr.App.1971). See Articles 21.02(7), 21.03, State,
(Tex.Cr.App.1966).
21.04, and 21.11 of the Code of Criminal
was
returned
The instant
Procedure;
Corp.
American Plant
v.
encompassed
Food
State, 508
(Tex.Cr.App.1974).
three-year
S.W.2d 598
reports filed within
11, 1974.
period beginning May
limitation
v.
Moore
(Tex.