Boss v. State, 45599

• Decision Date: 13 December 1972
• Docket Number: No. 45599,45599
• Citation: 489 S.W.2d 580
• Parties: Samuel Wayne BOSS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 580

489 S.W.2d 580

Samuel Wayne BOSS, Appellant, v. The STATE of Texas, Appellee.

No. 45599.

Court of Criminal Appeals of Texas.

Dec. 13, 1972.

Rehearing Denied Feb. 7, 1973.

James W. Lee, III, Dallas, for appellant.

Henry Wade, Dist. Atty., Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of robbery. The jury assessed the punishment at forty-eight years.

In his first ground of error, appellant contends that the trial court erred in admitting into evidence, at the punishment stage of his trial, records of two prior convictions. He contends that the sentences are void on their face because they do not recite that appellant was represented by counsel when he was sentenced.

Appellant apparently contends that the burden is on the State to show that he had counsel. He argues that it is immaterial that the counsel did not object to their admission because they are void and as such cannot be used in setting punishment.

First, there must be an objection by appellant at the time such prior convictions are entered into evidence. In Palmer v. State, Tex.Cr.App., 475 S.W.2d 797, where similar contention was made, this Court said:

'In Taylor v. State, Tex.Cr.App., 470 S.W.2d 663, this court held that the trial court did not err in admitting into evidence at the penalty stage of trial certified copies of judgment and sentence which were silent as to whether defendant had been represented by counsel where no objection was urged at time documents were introduced and no claim was advanced that defendant was in fact, deprived of counsel. See also Vera v. State, Tex.Cr.App., 473 S.W.2d 22 (1971).'

The appellant does not claim that he was without counsel or that he did not voluntarily waive counsel. He instead claims that the burden is on the State to prove that he was with counsel and was not indigent. We do not agree. Appellant has the burden to show that he was without counsel or that he was indigent and did not voluntarily waive his right to counsel. Taylor v. State, Tex.Cr.App., 470 S.W.2d 663; Walling v. State, Tex.Cr.App., 437 S.W.2d 563. Counsel for the State are again reminded that care should be taken to see that an accused has been represented by counsel before introducing evidence of prior convictions. Better yet, this should be shown in the record to prevent habeas corpus hearings at a later date.

Complaint is made that the State failed to prove one of the essential elements of the case in accordance with Article 1408, Vernon's Ann.P.C. Appellant contends that the State failed to introduce affirmative evidence to show that the victim, Roy Aldridge, was in fear of his life or serious bodily harm. Aldridge testified that the appellant pointed a cocked gun at him from a distance of three feet and when asked '. . . whether or not you were in fear for your life or of serious bodily injury?', he answered: 'I feel like I was.' He also testified that he thought the appellant might shoot him, and that he gave appellant some $96.00 and narcotics from the pharmacy where the robbery took place.

We hold that the evidence was sufficient for the jury to conclude that the complainant was in fear of his life or serious bodily injury.

Finally, appellant contends the trial court erred in failing to afford him with a separate preliminary hearing on his present competency to stand trial. Appellant argues that because he filed a motion in writing, styled 'Application for Trial of the Issues of Insanity of the Defendant (Then and Now)--In Advance of Trial of the Merits,' that the trial court was on notice and was required to conduct such a hearing.

There is no...