Alvarez v. State, 51177

• Decision Date: 24 March 1976
• Docket Number: No. 51177,51177
• Citation: 536 S.W.2d 357
• Parties: Epifanio ALVAREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 357

536 S.W.2d 357

Epifanio ALVAREZ, Appellant, v. The STATE of Texas, Appellee.

No. 51177.

Court of Criminal Appeals of Texas.

March 24, 1976.

On Rehearing May 19, 1976.

Michael Putman, San Antonio, for appellant; William Brown, San Antonio, of counsel.

Ted Butler, Dist. Atty., Charles T. Conaway, Lucien B. Campbell, and Susan Spruce, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of possession of heroin. See Art. 725b, V.A.P.C. Punishment, enhanced under Art. 63, V.A.P.C., was assessed by the court at life.

In his first ground of error, appellant contends that the trial court assessed punishment at life in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution and in violation of the doctrine of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

This was the second trial of appellant for this offense. The indictment on which he was first tried charged him with this same unlawful possession of heroin, and also charged that he had been twice convicted of felony offenses less than capital for enhancement purposes. The record reflects that when the case was called for trial on October 10, 1973, the State 'waived and abandoned 2nd and 3rd paragraphs of indictment (Habitual enhancement of punishment) and agreed to proceed to trial on 1st paragraph.' On a plea of guilty before the court, appellant, after evidence, was convicted and punishment was assessed at ten years. On appeal, the judgment was reversed and the cause was remanded for failure of the trial court to properly admonish appellant. See Alvarez v. State, 511 S.W.2d 521.

After remand a new indictment was presented again charging appellant with possession of heroin, and containing the same provisions of prior felony convictions for enhancement purposes. When the case was called for trial on December 11, 1974, appellant changed his former plea to one of not guilty, and chose to be tried by jury. Thereupon, the court, on the State's motion, dismissed the prior case, and the trial proceeded before a jury on the instant indictment which included the enhancement allegations. Appellant filed his request that in the event of a guilty verdict punishment be assessed by the court. After conviction, the court conducted the punishment hearing, and assessed punishment at life in accordance with Article 63, V.A.P.C.

In Martinez v. State, Tex.Cr.App., 471 S.W.2d 399, we passed on the same contention now raised by appellant and, in overruling the defendant's complaint, said:

'Appellant's fourth ground of error is that the Court erred in not granting his motion to limit the penalty to fifteen years. He bases this contention upon the fact that this appellant was indicted as a habitual criminal and brought to trial before Judge Blackwell, where the State waived or abandoned the allegations as to the prior convictions and Judge Blackwell sentenced the appellant to fifteen years for the primary offense. Subsequently, Judge Blackwell granted appellant's motion for new trial. The prior indictment was dismissed and the appellant was again indicted as a habitual criminal, with the same two prior convictions alleged for enhancement, and brought to trial before Judge Thurman where the prior convictions were proven and his punishment was assessed by Judge Thurman at life as required by law.

'The proof before Judge Thurman that the appellant was the same person who had been convicted in the two prior convictions alleged for enhancement distinguishes this case from North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, upon which appellant relies. See Branch v. State, Tex.Cr.App., 445 S.W.2d 756.'

Following this decision, Martinez sought habeas corpus relief in the United States District Court for the Western District of Texas. He asserted that upon retrial he received a longer sentence than had been imposed on the first trial, in violation of the holdings in North Carolina v. Pearce, supra, and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628. The district court sustained Martinez' contention and granted the writ. On appeal, in Martinez v. Estelle, 527 F.2d 1330, the 5th Circuit reversed, and in a per curiam opinion rendered March 5, 1976, in part said:

'The district court relying on Blackedge held that the imposition of the life sentence after retrial 'unconstitutionally deter(red the) defendant in the exercise of his right to attack his first conviction.' We disagree. In Blackledge, the defendant who had appealed his misdemeanor conviction was subsequently indicted for a felony offense for the same transaction. This elevation in the severity of the charge in response to the appeal was condemned by the Supreme Court for its potential in discouraging defendants from the pursuit of their appellate remedies.

'By contract, in this case there has been no such retaliatory state response to the defense appeal. Here, the indictment against the defendant after appeal was identical to the first indictment against him. Both indictments contained the statutory habitual count. There was no escalation of the government's charge. The disparity in sentences imposed upon defendant after his first and second trials was the necessary result of his own choice of trial strategy rather than prosecutorial response to his appeal. Unlike Blackledge, we are not presented with facts suggesting a likelihood of potential prosecutorial vindictiveness. Quite the contrary appears.'

See also Arechiga v. Texas, 469 F.2d 646 (5th Cir. 1972); Williams v. McMann, 436 F.2d 103 (2d Cir. 1970).

We hold, as we did in Martinez, supra, and in Branch, supra, that the trial court exercised no discretion but was required by statute to impose a life sentence upon appellant's conviction as a habitual criminal. Also, as stated by the 5th Circuit in Martinez v. Estelle, supra, the disparity in the sentences was the result of appellant's choice of trial strategy on the instant trial rather than prosecutorial vindictiveness.

The ground of error is overruled.

In his second ground, appellant complains of the introduction in evidence at the punishment stage, over objection, of State's Exhibit No. 9 (hereafter called SX9). He argues that said exhibit did not conform to Art. 3731a, V.A.T.Civ.Stats. as to notice and other requirements, that it was not relevant to any issue, failed to identify sufficiently the appellant, and was hearsay.

The indictment alleged for enhancement purposes a prior conviction of appellant in Cause No. 65,179 in the 175th District Court of Bexar County in 1965 for assault with intent to murder and a conviction in Cause No. 58,382 in the Criminal District Court of Bexar County for forgery in 1960.

SX9 consists of certified copies of the indictment, sheriff's returns on subpoenaes, affidavits of witnesses, police reports, waiver of jury, and a written voluntary statement of appellant, all taken from the record in Cause No. 65,179, supra. Each of the first eighteen documents in this exhibit bears the certification of the district clerk that it is a true and correct copy of the original record in his lawful custody and possession as appears in the records of his office filed November 2, 1965, and the date of the certificates is December 9, 1974, nine days prior to the instant trial. The remaining 28 pages of SX9, being also from the records of the trial of Cause No. 65,179, were stapled together as one unit, and the same certificate of the clerk as just mentioned is on the back of the last page. The certification sufficiently conformed to the requirements of Art. 3731a, V.A.Tex.Civ.Stats. Speights v. State, Tex.Cr.App., 499 S.W.2d 119.

Although many of these instruments were not relevant, others, such as the indictment, appellant's confession to show date of the offense as it applies to enhancement, etc., were, and appellant's objection was addressed to the exhibit as a whole and not to individual documents. A general objection to evidence, part of which is admissible, does not preserve error. See Ellard v. State, Tex.Cr.App., 509 S.W.2d 622; Morrison v. State, Tex.Cr.App., 508 S.W.2d 827. The hearing was before the court, and it will be assumed that the court did not consider evidence improperly in the record.

In addition to SX9, the State placed in evidence SX10 and SX11. SX10 consisted of known fingerprints of appellant taken in court. SX11 consisted of the penitentiary packets of the convictions in the cases alleged in the indictment for enhancement, being Causes 65,179 and 58,382 supra. This exhibit included the judgment and sentence in each case, and fingerprints of defendant in each case. Each bore the required certificates of the Record Clerk of the Texas Department of Corrections, and of the county judge and county clerk of Walker County. A fingerprint expert compared the known prints of appellant with the prints in each packet, and identified appellant as being the defendant convicted in each case. This sufficiently complied with the requirements of identification. Jones v. State, Tex.Cr.App., 500 S.W.2d 661.

Appellant also claims error because the State failed to deliver to him a copy of SX9 as required by Art. 3731a(3), V.A.T.Civ.Stats. His claim of surprise is without merit. Hutchinson v. State, Tex.Cr.App., 481 S.W.2d 881.

The second ground of error is overruled.

Appellant, in his third ground, contends that the evidence fails to show that the offense of assault with intent to murder for which appellant was convicted in 1965 in Cause No. 65,179, supra, was committed after the final conviction of appellant for forgery in 1960 in Cause No. 58,382 supra.

A certified copy of the indictment in Cause No. 65,179 in the 175th District Court of Bexar County presented in court on September 22, 1965 is included in SX9, s...