Culbert v. State, 39932
| Decision Date | 07 December 1966 |
| Docket Number | No. 39932,39932 |
| Citation | 415 S.W.2d 646 |
| Court | Texas Court of Criminal Appeals |
| Parties | Harold Lloyd CULBERT, Appellant, v. The STATE of Texas, Appellee. |
Will Gray (on appeal only), Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough, Richard M. DeGuerin and Joe Shaffer, Asst. Dist. Attys., Houston, Leon B. Douglas, State's Atty., Austin, for the State.
The offense is felony theft; the punishment, enhanced by two prior convictions for a like offense (Art. 63 Vernon's Ann.P.C.), life.
Trial was had and notice of appeal given prior to January 1, 1966.
The indictment alleged theft of two automobile tires and wheels of the value of over $50.00 from J. R. Gage; and for the purpose of enhancing the punishment, alleged that prior to the commission of said theft appellant was convicted of felony theft in Criminal District Court of Harris County on March 10, 1961, in Cause No. 92171, and that after such conviction had become final he committed the offense of theft, a felony, and on April 26, 1963, was convicted of said offense in Cause No. 105178 in Criminal District Court of Harris County, Texas.
The sufficiency of the evidence to sustain the conviction is conceded by appellant's brief and need not be set out. Suffice it to say that appellant was seen driving away from the car lot where two tires and wheels of the value of $50.00 had been removed without the consent of and unknown to the owner; appellant's fingerprints were found on the jack used to raise the car from which the tires and wheels had been removed, and two tires and wheels which fit the description of those stolen were found in the car which appellant drove away from the car lot.
The prior convictions alleged for enhancement of punishment were proved by records of the Texas Department of Corrections, including certified copies of the judgments and sentences, photographs and fingerprints, and testimony identifying such fingerprints and photographs as those of the appellant.
The sole question raised on this appeal is the sufficiency of the evidence to support the allegation of the indictment that the conviction in 1963 was for an offense committed after the judgment of conviction in 1961 had become final.
An examination of the Statement of Facts, agreed and certified as full, true and correct, reveals no evidence as to when the offense of theft for which appellant was convicted on April 26, 1963 was committed.
Criminal Investigator J. T. Stevenson, of the Harris County Sheriff's Office, was called as a witness and testified that he was employed in that capacity in 1963. He was told that appellant was convicted in the cause alleged and that the location was 1621 Milam. He was then asked and answered:
'
It is apparent that the question as to when the offense was committed was not answered.
We agree with appellant's contention that the evidence is insufficient to invoke the provision of Art. 63 P.C., but is sufficient to sustain his conviction for felony theft enhanced by a prior conviction for felony theft under Article 62 P.C.
The judgment and sentence are reformed to provide for appellant's confinement in the penitentiary for a term of ten years. Haines v. State, Tex.Cr.App., 391 S.W.2d 58.
As reformed, the judgment is affirmed.
OPINION ON STATE'S MOTION FOR REHEARING
The state now moves this court to set aside its opinion of December 7, 1966, which affirmed appellant's conviction for felony theft and reformed the judgment and sentence to provide for confinement in the penitentiary for a term of ten years (enhanced under Art. 62, V.P.C.) and to now affirm the original judgment of conviction with punishment--enhanced under Art. 63, supra--at life imprisonment.
It is insisted that evidence was adduced upon the trial, showing the date of commission of the offense of theft for which appellant was convicted on April 26, 1963, which evidence was inadvertently omitted from the original statement of facts.
In support of its contention, the state relies upon an instrument filed in this court on December 21, 1966, in the cause, styled 'Certification of questions and answers inadvertently omitted from original statement of fact--.' Such instrument, certified to by the official court reporter who took the proceedings in the cause in shorthand, contains an agreement signed by appellant's trial counsel and counsel for the state in which counsel agree
'that the above and foregoing certification of questions and answers inadvertently omitted from original Statement of Facts in said Cause is correct and should be included in the previously approved Statement of Facts in said Cause had upon the trial before the Honorable Fred M. Hooey, Judge of the Criminal District Court No. 6 of Harris County, Texas--at the time and place as shown by the Caption thereto on Page One.'
Under the authority of Angle v. State, 165 Tex.Cr.R. 305, 306 S.W.2d 718, the original statement of facts and the questions and answers, now certified to as having been inadvertently omitted therefrom, will be considered in passing upon the state's motion for rehearing.
As now presented, the record reflects that on direct examination the state's witness J. T. Stevenson, referring to the 1963 conviction, testified--among other things--as follows:
It thus appears that the witness did testify as to when the offense was committed and that it was committed on February 13, 1963, which was after appellant's conviction in 1961 became final.
The proof offered by the state authorized the enhancement of appellant's punishment under Art. 63, supra.
The state's motion for rehearing is granted, our order reforming the judgment and sentence is set aside, and the original judgment of...
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