Aaron v. State, 51044

• Decision Date: 16 June 1976
• Docket Number: No. 51044,51044
• Citation: 546 S.W.2d 277
• Parties: Leon AARON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 277

546 S.W.2d 277

Leon AARON, Appellant, v. The STATE of Texas, Appellee.

No. 51044.

Court of Criminal Appeals of Texas.

June 16, 1976.

Dissenting Opinion On State's Motion for Rehearing Feb. 16, 1977.

Ramie H. Griffin, Jr. (on appeal only), Beaumont, for appellant.

Tom Hanna, Dist. Atty. and Lawrence E. Thorne, III, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for the offense of burglary (habitual). Trial was before a jury and the jury, having found appellant guilty of burglary and of having been twice previously convicted of felonies less than capital, assessed his punishment at life in prison. The primary offense took place on February 17, 1973 and trial commenced on July 8, 1974.

All of appellant's grounds of error are directed toward the Louisiana penitentiary packet introduced to prove the first enhancement count of the indictment.

Appellant first complains that the 'pen packet' is not properly certified under Art. 3731a, Sec. 4, V.A.C.S., since it is attested to by the Secretary of State of Louisiana and not by a 'judge of a court of record of the district or political subdivision in which the record is kept.' Section 4 of Art. 3731a makes it clear that certification of such papers by a judge is Permitted, but is by no means mandatory. It also provides, 'Such writings . . . may be evidenced . . . by a copy . . . attested by the officer having the legal custody of the record . . ..' In this case, the Louisiana Secretary of State certified to the identity of the warden and the records clerk of the Louisiana State Penitentiary. The records clerk certified that he was the legal custodian of the records and that the copies admitted at trial were true and exact copies. We find that the pen packet was properly certified for admission as evidence. Cf. Morgan v. State, Tex.Cr.App., 532 S.W.2d 85 (1976).

Appellant makes a more serious attack on the admission of three letters in the pen packet which alluded to convictions other than that for which the packet was offered. One such letter, dated May 21, 1961, recited that appellant had been convicted and sentenced on three separate thefts or burglaries, none of which was the conviction alleged in the indictment for enhancement. The other two letters, dated January 23, 1962, relate to the prior conviction alleged, but add that appellant's three-year sentence thereon was to run consecutively with the remainder of the sentence from which he was paroled. This is an obvious reference to the concurrent sentences for burglary or theft that appellant had received the year before.

These extraneous convictions were not alleged for enhancement in the indictment. Yet they are proper subjects for proof at the punishment stage of the trial under Art. 37.07, V.A.C.C.P. Burton v. State, 493 S.W.2d 837 (Tex.Cr.App.1973). However, proof of such convictions cannot be satisfied by mere references thereto contained in letters in appellant's pen packet. A conviction in Mullins v. State, 492 S.W.2d 277 (Tex.Cr.App.1973) was reversed because the defendant's pen packet, which was introduced at his trial to prove his prior record under Art. 37.07, included an instrument containing the details of the Arkansas convictions for which the packet was offered, an extraneous offense, and two California offenses, only one of which appeared to have resulted in a conviction. Since Art. 37.07 limits the proof at the punishment stage to prior final convictions, admission of evidence of the details of the offenses and of other, non-final convictions was reversible error. See also Lege v. State, 501 S.W.2d 880 (Tex.Cr.App.1973); Sherman v. State, 537 S.W.2d 262 (1976). Likewise, the record in the instant case does not support the conclusion that the offenses to which the letters referred were final convictions.

The pen packet also contained certified copies of the informations and the sentences for the three extraneous offenses. Although these documents were all attested to on the same date, the informations show no cause numbers to correspond to those on the sentences. Moreover, the bills of information charge three separate burglary offenses, but the minutes of the court show the three sentences to be for theft offenses. A variance such as this would render a Texas conviction void. Thomas v. State, 525 S.W.2d 172 (Tex.Cr.App.1975); Gooden v. State, 140 Tex.Cr.R. 351, 145 S.W.2d 179 (1941); Litchfield v. State, 159 Tex.Cr.R. 5, 259 S.W.2d 228 (1953); Ex parte Dies, 160 Tex.Cr.R. 468, 272 S.W.2d 373 (1954). Finally, the pen packet contains no judgments upon which sentences for the three offenses can be based. 'The absence of a judgment invalidates a sentence, and without a sentence no final conviction has resulted from the trial.' Morgan v. State, 515 S.W.2d 278 (Tex.Cr.App.1974). A conviction that is not final cannot be used at the punishment stage of a trial under Art. 37.07, Sec. 3(a), V.A.C.C.P. Morgan v. State, supra.

The pen packet introduced to establish the convictions used for enhancement also contained evidence of extraneous offenses not shown to be valid final convictions. The error cannot be characterized as harmless. Sherman v. State, supra. The judgment of the trial court will be reversed and the cause remanded.

In the event of a retrial, we call attention to another fatal variance. The indictment charged appellant with having previously been convicted of 'attempted burglary' in Cause No. 17686 on January 22, 1962 in the Tenth Judicial District Court of Natchitoches Parish, Louisiana. The sentence shown for the prior conviction was for 'simple burglary.' In addition to the need for a judgment of conviction for the offense, discussed above, the allegations and proof would appear to reflect a fatal variance.

For the foregoing reasons, the judgment is reversed and the cause remanded.

DOUGLAS, Judge, dissenting on Motion for Rehearing.

A majority of the Court overrules the State's motion for rehearing without written opinion even though the proof shows that appellant was properly assessed punishment at life as an habitual criminal and no reversible error is shown. The majority does not give full faith and credit to a Louisiana conviction.

The opinion on original submission holds that a prior Louisiana conviction could not be used for enhancement because appellant was charged with 'attempted burglary' and was convicted for simple burglary. This is done even though the sentence shows he was convicted for the offense as charged which was attempted burglary. It also holds that it was reversible error at the penalty stage of the trial to admit into evidence parts of the Louisiana prison records.

Two prior convictions for felonies less than capital were alleged and proved. The Texas prior conviction was admitted without objection.

The information alleging the prior Louisiana conviction in question is as follows:

'The said Leon Aaron on the 22nd day of January, A.D., 1962, was duly and legally convicted of the offense of Attempted Burglary, a felony, in the Tenth Judicial District Court of the Parish of Natchitoches, State of Louisiana, in Cause No. 17686 on the docket of said court, styled The State of Louisiana vs. Leon Aaron, and which said court had jurisdiction of said offense of Attempted Burglary, a felony.'

From the records from the Louisiana State Penitentiary, a certified copy of the sentence is as follows:

'17686 State of Louisiana -vs- Leon Aaron (CM; Age 18) (Simple Burglary). Now comes the State through the District Attorney and comes the defendant in custody of the Sheriff and accompanied by counsel, Mr. W. Peyton Cunningham, Jr. The defendant through counsel announced to the Court that he withdraws his former plea of Not Guilty and now Enters a plea of Guilty as charged; whereupon the Court ordered that the plea be changed and entered. It was thereupon ordered by the Court and it is the judgment and sentence of the Court that the defendant be remanded to the custody of the Sheriff and by him safely kept until such time as he can be transported to the State Penitentiary at Angola, Louisiana and there delivered to the Warden or Superintendent of said Penitentiary and by him confined therein at hard labor for a period of Three (3) years and let this sentence run consecutively with the sentence he is now on parole from.

'Whereupon District Court adjourned until January 23rd, 1962 at 10:00 o'clock A.M.

Approved January 25, 1962

/s/ L. P. Stephens

L. P. Stephens

Judge, 10th D.C.La.'

(emphasis added)

The sentence recites that he entered a plea of guilty as charged. Apparently the statement '(Simple Burglary)' is a clerical error. See Ex parte Strey, 28 S.W. 811, (Tex.Cr.App., 1894). It is at least such an error that could be reformed on appeal in Texas under Article 44.24, V.A.C.C.P. When a judgment could have been reformed on appeal or by nunc pro tunc proceedings it cannot be attacked collaterally on a subsequent appeal if it has been used for enhancement purposes. See Hughes v. State, 493 S.W.2d 166 (Tex.Cr.App.1973).

It is presumed that the law of Louisiana is the same as Texas. Almand v. State, 536 S.W.2d 377 (Tex.Cr.App.1976); Watts v. State, 430 S.W.2d 200 (Tex.Cr.App.1968); Melancon v. State, 367 S.W.2d 690 (Tex.Cr.App.1963). Absent proof that the law is otherwise, the judgment could have been reformed in Louisiana. See McCormick and Ray, Evidence, Section 99, page 131, and pocket parts therein. ¹

The majority should follow the time honored rule and hold that the Louisiana law is presumed to be the same as Texas law concerning reformations of sentences where the record definitely shows that he was convicted as charged which was done in this case.

In Skaggs v. State, 167 Tex.Cr.R. 254, 319 S.W.2d 310 (1958), the conviction was for the subsequent offense of driving a motor vehicle upon a public road while...