Carter v. State, 48544
| Decision Date | 05 June 1974 |
| Docket Number | No. 48544,48544 |
| Citation | 510 S.W.2d 323 |
| Court | Texas Court of Criminal Appeals |
| Parties | Albert H. CARTER, Appellant, v. The STATE of Texas, Appellee. |
John Mustachio, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough, Sam Robertson, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
REYNOLDS, Commissioner.
The appealed conviction is for embezzlement committed on or about May 5, 1971. The punishment, following a jury finding that appellant had been convicted of two prior non-capital felony offenses, was fixed at life imprisonment under Article 63, Vernon's Ann.P.C.
In the enhancement portion of the indictment, it was alleged that appellant had two prior final felony convictions, one on April 20, 1962, and the other on December 4, 1969. Declaring his right to appeal pro se without renouncing the contention asserted by his appointed appellate counsel, whom appellant declares he has discharged, appellant complains that his 1969 conviction was not a final conviction at the time of the May 5, 1971 embezzlement offense for which he was convicted.
The State introduced documents respecting the 1969 conviction, together with the mandate issued by this court certifying that such conviction was affirmed on April 7, 1971. This evidence was not objected to on the ground that the conviction had not become final on May 5, 1971, the date of the primary offense alleged. Appellant offered no evidence to refute the proof of the finality of his 1969 conviction prior to May 5, 1971.
By his supplemental pro se brief filed in this court, appellant submits for the first time that his 1969 conviction was not final on May 5, 1971. He states that, following the affirmance of his 1969 conviction by this court, he timely filed in the United States Supreme Court a petition for writ of certiorari which was not denied until December 20, 1971, at 404 U.S. 1001, 92 S.Ct. 567, 30 L.Ed.2d 554, and his motion for rehearing thereon was not denied until January 17, 1972, at 404 U.S. 1054, 92 S.Ct. 718, 30 L.Ed.2d 743. Relying on Webb v. Beto, 457 F.2d 346 (5th Cir. 1972), appellant argues that since this 1969 conviction was on appeal to the United States Supreme Court until January 17, 1972, it was not a final conviction prior to May 5, 1971, the date of the primary offense charged against him.
It is, of course, axiomatic that if an appeal has been taken from a judgment of guilty in the trial court, that conviction does not become final until the trial court judgment has been affirmed by the appellate court; and, before a prior conviction may be relied on for enhancement in a subsequent case, the prior conviction must have become final prior to the commission of the offense in the subsequent case. Arbuckle v. State, 132 Tex.Cr.R. 371, 105 S.W.2d 219 (1937). Nevertheless, under the facts shown in this record, the ground of error set forth in appellant's pro se brief does not present reversible error.
When the State offered its proof of the appellate affirmance on April 7, 1971, of appellant's 1969 trial court conviction, a prima facie showing was made of the finality of that conviction prior to the alleged primary offense on May 5, 1971. At that point, appellant had the burden of proof to refute the finality of such conviction. Malone v. State, 466 S.W.2d 310 (Tex.Cr.App.1971). Appellant did not discharge his burden. He neither objected to the State's proof of his prior final 1969 conviction on the ground that it was not final prior to May 5, 1971, nor offered any evidence that such conviction was on appeal at the time of the commission of the primary offense for which he was convicted. Furthermore, the appellate record is devoid of any evidence either that a timely petition for writ of certiorari was filed to review the affirmance of the 1969 conviction or that the record of denial of writ of certiorari was in connection with such conviction. Under these circumstances, appellant may not wait until the appeal to complain that all procedural requirements were not satisfied, Lewis v. State, 501 S.W.2d 88 (Tex.Cr.App.1973), particularly by merely alleging, without more, a timely petition for and the denial of a writ of certiorari. The ground of error contained in appellant's pro se brief is overruled.
The gist of the unrenounced contention advanced by appellant's appointed appellate counsel, who insists he still is attorney...
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