Therrell v. State

163 Tex. Crim. 67 | Tex. Crim. App. | 1956

MORRISON, Presiding Judge.

The offense is aggravated assault, with a prior conviction of an offense of like character alleged for the purpose of enhancement; the punishment, 2 years in jail and a fine of $200.00.

A prior appeal is reported as Therrell v. State, 161 Tex. Cr. Rep. 617, 279 S.W. 2d 879.

The count charging the prior conviction was defective because it merely stated that the offense was one of like character as the primary offense without stating the nature of such offense. Waltrip v. State, 134 Tex. Cr. Rep. 202, 114 S.W. 2d 555; Walker v. State, 138 Tex. Cr. Rep. 230, 135 S.W. 2d 498; McClain v. State, 220 S.W. 2d 896.

Appellant objected to that portion of the court’s charge in which the prior offense was submitted for their consideration.

The verdict specifically found that the appellant had been convicted in the prior case.

This identical situation was presented in Stover v. State, 145 Tex. Cr. Rep. 426, 168 S.W. 2d 871, and such holding requires a reversal of this conviction.

The judgment is reversed and the cause remanded.