Ex parte Murchison, 55142
| Decision Date | 18 January 1978 |
| Docket Number | No. 55142,55142 |
| Citation | 560 S.W.2d 654 |
| Parties | Ex parte Joseph Edward MURCHISON. . En Banc |
| Court | Texas Court of Criminal Appeals |
This is a post conviction application for a writ of habeas corpus under Article 11.07, Vernon's Ann.C.C.P. The petitioner was convicted of assault with intent to commit rape. 1 The jury found the allegations of two felony convictions to be true, 2 and the appellant's punishment was imposed at life imprisonment. Upon appeal, this Court dismissed the appeal by per curiam opinion delivered April 24, 1974. 3
The petitioner's contentions are numerous. However, we need only consider the petitioner's contentions that his punishment was enhanced by a prior conviction in which the sentence had been probated, the probation had not been revoked, and that therefore his punishment could not be enhanced under Vernon's Ann.P.C., Articles 62 or 63. We grant the relief requested.
The petitioner was charged by indictment with assault with intent to commit rape. The indictment also alleged two prior non-capital felony convictions. The first felony conviction alleged was possession of marihuana, Cause No. 12,671, from Henderson County. The second felony conviction alleged was theft of property over $50, Cause No. 8658, from Nacogdoches county.
The petitioner contends that the State's proof of the first prior felony conviction showed on its face that the imposition of his sentence was suspended and that he was placed on probation. Furthermore, he contends that the State did not offer proof that his probation in the first felony conviction had been revoked and the execution of sentence imposed. Thus, according to the petitioner, there was no evidence that the first felony conviction was final and therefore it could not be used for enhancement purposes.
Since the petitioner does not contend that the first felony conviction was void, the threshold question is whether this Court will consider the petitioner's contentions. In Ex Parte Moffett, 542 S.W.2d 184 (Tex.Cr.App. 1976), we permitted a collateral attack of an order revoking the defendant's probation where the revocation order was based on no evidence. We there held that since there was no evidence, not merely insufficient evidence, to support the order revoking probation, a violation of due process had been shown which justified collateral attack by habeas corpus. We hold in this case that the petitioner's no evidence contention is likewise grounded on an allegation that he was denied due process of law and that the finality of the first prior felony used for enhancement is subject to collateral attack by habeas corpus.
The allegations contained in the petitioner's application for habeas corpus are supported by the record from the appeal of the conviction for assault with intent to commit rape. The State's proof of the first prior felony conviction consisted of certified copies of the indictment, the judgment, and the order suspending the sentence and placing the petitioner on probation. The order suspending the imposition of sentence and placing the petitioner on probation affirmatively shows that the petitioner was placed on probation on January 15, 1971. None of these certified copies, or any other evidence introduced by the State, proved that the probation had been revoked.
It is well established that under our former Penal Code only final convictions could be used for enhancement purposes. Carter v. State, 510 S.W.2d 323 (Tex.Cr.App. 1974; Nealy v. State, 500 S.W.2d 122 (Tex.Cr.App.1973)). Moreover, it is equally well established that a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted. White v. State, 171 Tex.Cr.R. 683, 353 S.W.2d 229 (1962); Ellis v. State, 134 Tex.Cr.R. 346, 115 S.W.2d 660 (1938); Arbuckle v. State, 132 Tex.Cr.R. 371, 105 S.W.2d 219 (1937); Fetters v. State, 108 Tex.Cr.R. 282, 1 S.W.2d 312 (1927); Brittian v. State, 85 Tex.Cr.R. 491, 214 S.W. 351 (1919). However, a conviction is final for enhancement purposes where the imposition of sentence has been suspended, probation granted, but a revocation of the probation is alleged and proved by the State. Arbuckle v. State, supra; Fetters v. State, supra. Thus, in the absence of proof of an order revoking the petitioner's probation, there was no evidence that the first prior felony conviction was a final conviction. We therefore hold that the...
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Ex parte Renier
...See e.g., Ex parte Twyman, 716 S.W.2d 951 (Tex.Cr.App.1986); Ex parte Payne, 618 S.W.2d 380 (Tex.Cr.App.1981); Ex parte Murchison, 560 S.W.2d 654 (Tex.Cr.App.1978); Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977) . 18 At best such talk is peculiar. The evident purpose of the adult prob......
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