Casey v. State

• Decision Date: 10 April 1986
• Docket Number: No. 01-84-811-CR,01-84-811-CR
• Citation: Casey v. State, 708 S.W.2d 914 (Tex. App. 1986)
• Parties: Julius Johnny CASEY, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 914

708 S.W.2d 914

Julius Johnny CASEY, Appellant, v.The STATE of Texas, Appellee.

No. 01-84-811-CR.

Court of Appeals of Texas Houston (1st Dist.).

April 10, 1986.

Walter C. Prentice, Austin, Janet C. Morrow, Morrow & Burnett, Houston, for appellant.

John B. Holmes, Jr., Harris County Dist. Atty., Eleanor M. McCarthy, Harris County Asst. Dist. Atty., Houston, for appellee.

Before SAM BASS, COHEN and HOYT, JJ.

OPINION

HOYT, Justice.

Appellant appeals from a jury trial in which he was convicted of aggravated robbery.Tex.Pen.Code Ann. sec. 29.03(Vernon 1974).The jury assessed punishment, enhanced by two prior felony convictions pursuant to Tex.Pen.Code Ann. sec. 12.42(d)(Vernon Supp.1986), at 55 years confinement.We reverse and remand.

An armed group of at least four males robbed the Southwestern Drug Corporation warehouse in Houston of significant wholesale quantities of narcotics on January 11, 1983.One of the robbers was wearing a bandana-type cloth across his face as a mask.During the course of the robbery, the face of one of the robbers was revealed, and he was later identified as the appellant.

An indictment alleging aggravated robbery and containing enhancement allegations was returned on February 17, 1985, and an arrest warrant was issued.Appellant was arrested on January 18, 1984, nearly a year later.

Appellant now brings five grounds of error, none of which challenges the sufficiency of the evidence.

In the first ground of error, appellant contends that the evidence is insufficient to prove that the second previous felony conviction was for an offense committed after the first previous felony conviction became final.

Tex.Pen.Code Ann. sec. 12.42(d) provides as follows:

(d) If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than 99 years or less than 25 years.

The enhancement paragraph of the indictment reads as follows:

Before the commission of the offense alleged above (hereafter styled the primary offense), on December 2, 1965, in CauseNo. 117995 in the Criminal District CourtNo. 3 of Harris County, Texas, the Defendant was convicted of the felony of Burglary.Before the commission of the primary offense, and after the conviction in CauseNo. 117995 was final, the Defendant committed the felony of Burglary with intent to commit theft, subsequent offender and was convicted on June 4, 1973, in CauseNo. 11,154 in the 75th JUDICIAL DISTRICT court of Liberty County, Texas.

At the punishment phase of the trial, the State introduced into evidence the judgment and sentence for each of the two prior felony convictions alleged in the indictment.The judgment in the first packet was entered in April 1973.However, the second packet containing a Liberty County conviction was admitted, but no evidence was admitted proving when that offense was committed.

Because there is no proof that the second previous offense was committed after the first previous offense became final, the appellant contends that the judgment should be reversed and the cause remanded for a new trial without the use of the second prior conviction alleged for enhancement.The State urges this Court to reform the sentence if we find the evidence of the second enhancement paragraph to be insufficient.The State contends that the verdict should be reformed to reflect a sentence of 15 years, the minimum punishment that could be given to a repeat offender upon retrial in compliance with Tex.Code Crim.P.Ann. art. 37.10(Vernon Supp.1986).That statute has been amended as follows:

(b) If the jury assesses punishment in a case and in the verdict assesses both punishment that is authorized by law for the offense and punishment that is not authorized by law for the offense, the court shall reform the verdict to show the punishment authorized by law and to omit the punishment not authorized by law.If the trial court is required to reform a verdict under this subsection and fails to do so, the appellate court shall reform the verdict as provided by this subsection.

This statute controls litigation from its effective date (June 11, 1985) and applies to both pending and future actions.Ex parte Johnson, 697 S.W.2d 605(Tex.Crim.App.1985).The cases decided since art. 37.10 was amended have involved questions of assessed punishment that included unauthorized fines in addition to imprisonment.SeeEx parte Youngblood, 698 S.W.2d 671(Tex.Crim.App.1985);Ex parte Johnson, 697 S.W.2d 605.The issue before us is not whether a portion of the punishment is unauthorized by law, but whether, after admitting two previous judgments for punishment enhancement purposes, the trial court's instructions on the range of punishment are fatal because the State failed to prove the proper time sequence of the second previous convictions.We hold that it is.Although it is abundantly clear that the jury's assessed punishment was within the proper range whether one or two previous convictions were used, it is equally clear that the evidence is insufficient to prove that the second previous offense occurred after a conviction on the first previous offense.Williams v. State, 596 S.W.2d 903(Tex.Crim.App.1980), is dispositive of this issue.

Ground of error one is sustained.

In ground of error two, the appellant complains that the trial court erred in refusing to set aside the indictment for a violation of the Speedy Trial Act.The indictment against the appellant was returned on February 17, 1983.He was not arrested until January 18, 1984.Appellant filed a motion for dismissal for lack of prosecution on July 23, 1984.

A written motion asserting the right to a speedy trial may seek relief under either the Sixth Amendment to the United States Constitution,Tex.Code Crim.P.Ann. art. 32A.02(Vernon Supp.1986), or both.If art. 32A.02 is not expressly invoked, however, the appellant waives his statutory right to a speedy trial.Turner v. State, 662 S.W.2d 357, 358(Tex.Crim.App.1984).

Appellant's motion sought relief only pursuant to his Sixth Amendment rights although all testimony was pursuant to his statutory right.On appeal, the Sixth Amendment right is not raised, and no motion is contained in the record alleging statutory violations.Because appellant's motion sought relief only under the Sixth Amendment, it did not comply with the state statutory requirements, and his rights under art. 32A.02 were waived.On appeal the Sixth Amendment claim for a speedy trial was not urged; it is also waived.

Ground of error two is overruled.

Grounds of error three and four center on an eyewitness identification of appellant.The appellant first alleges that his right to counsel was violated because no counsel was present at the lineup.The record fails to show whether counsel had been appointed at the time of the lineup.

Our state courts have adopted the United States Supreme Court's holding that a post-indictment pretrial identification process in the absence of counsel violates the Sixth Amendment.Martinez v. State, 437 S.W.2d 842(Tex.Crim.App.1969).The record does not reflect whether the appellant had counsel present during the lineup or not.Appellant's motion to suppress the identification did not speak to this fact, and the evidence adduced at the hearing is insufficient and inconclusive.Because the evidence is inconclusive as to whether counsel was present, the ruling of the trial court is sustained.

Appellant further contends that Robert Reed's identification of him should have been suppressed because it was based on an impermissibly suggestive pretrial identification.Appellant contends that the evidence is insufficient to show both that the photographic display was not impermissibly suggestive and that it would not give rise to a substantial likelihood of misidentification.Appellant has misstated the burden.The evidence must be sufficient to show that the in-court identification was not tainted by improper pretrial identification procedures.Although not clearly so stating, appellant appears to be contending that the origin of the in-court identification is in a photo spread and a lineup.

A pretrial photographic identification does not automatically taint an in-court identification.Ward v. State, 474 S.W.2d 471, 475(Tex.Crim.App.1971).If the in-court identification is not of independent origin, then it must be determined if the photographic display was impermissibly suggestive and if it would give rise to a very substantial likelihood of irreparable misidentification.SeeSimmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247(1968).The following factors are to be considered when determining the origin of an in-court identification:

(1) the prior opportunity to observe the alleged criminal act (2) the existence of any discrepancy between any pre-lineup identification and the defendant's actual description;

(3) any identification of another person prior to the lineup;

(4) the identification by picture of the defendant prior to the lineup;

(5) failure to identify the defendant on prior occasions; and

(6) the lapse of time between the alleged act and the lineup identification.

Garcia v. State, 563 S.W.2d 925, 928(Tex.Crim.App.1978).

Appellant was the only person Reed identified prior to trial.Reed identified appellant in a photo spread in January 1984, and again on the following day at the lineup; he never identified anyone else.Reed positively identified appellant each time he had the opportunity.There was no evidence at trial concerning the existence of any discrepancy between the pre-lineup description and appellant's actual description.There was a...