Clark v. State, 24826

• Decision Date: 17 May 1950
• Docket Number: No. 24826,24826
• Citation: 154 Tex.Crim. 581,230 S.W.2d 234
• Parties: CLARK v. STATE.
• Court: Texas Court of Criminal Appeals

Page 234

230 S.W.2d 234

154 Tex.Crim. 581

CLARK v. STATE.

No. 24826.

Court of Criminal Appeals of Texas.

May 17, 1950.

Wallace B. Moore, Dallas, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

WOODLEY, Judge.

Appellant was convicted under an indictment which charged the primary offense of burglary, and in which it was alleged that he had been previously convicted in the same court of burglary, and in a United States District Court for the offense of conspiracy to possess explosives illegally. The jury finding him guilty, a life sentence was imposed by the court, from which he appeals.

Each of the prior offenses were alleged to be felonies less than capital, and it was properly alleged that each subsequent conviction was for an offense committed by appellant subsequent to the previously alleged conviction.

The sole question raised upon this appeal is the sufficiency of the prior conviction in the Federal Court of the offense of conspiracy to possess explosives illegally, a felony under the laws of the United States at the time of its commission and at the time of the trial, but not an offense under the laws of Texas.

Appellant contends that such a conviction is not available to the State for the purpose of enhancing the punishment and is insufficient to support the judgment assessing against appellant a life sentence as an habitual criminal under Art. 63, P.C.

Appellant relies upon the decision of this court in Garcia v. State, 140 Tex.Cr.R. 340, 145 S.W.2d 180, and the State's Attorney concedes that such decision supports appellant's contention.

It is contended however that the Garcia case is erroneous, and should be overruled, and our attention is directed to the decisions wherein similar convictions in the Federal Courts, for offenses of the grade of a felony under the laws of the United States, but not a crime denounced as a felony under the laws of this State, have been held sufficient as a basis for revocation of a suspended sentence under the provisions of Art. 779, C.C.P., Vernon's Ann.C.C.P., another reformatory statute. See Brown v. State, 105 Tex.Cr.R. 586, 289 S.W. 682; Floyd v. State, 132 Tex.Cr.R. 541, 106 S.W.2d 301; Edwards v. State, 134 Tex.Cr.R. 512, 116 S.W.2d 711.

In Brown v. State, supra, it is made clear that the basis for the holding is the wording of the suspended sentence statutes, Arts. 776 and 779, C.C.P.

Construing the provision 'convicted of a felony in this or any other State' as used in Art. 776, C.C.P., in connection with the requirement of Art. 779, C.C.P., requiring revocation of the suspension of sentence 'upon the final conviction of the defendant of any other felony' the conclusion was reached that a felony conviction in any other state would affect...