Fain v. State

• Decision Date: 17 December 1986
• Docket Number: No. 610-85,610-85
• Citation: Fain v. State, 725 S.W.2d 200 (Tex. Crim. App. 1986)
• Parties: Clifton Eugene FAIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 200

725 S.W.2d 200

Clifton Eugene FAIN, Appellant, v. The STATE of Texas, Appellee.

No. 610-85.

Court of Criminal Appeals of Texas En Banc.

Dec. 17, 1986.

Martin Underwood, Comstock, Joseph A. Connors, III (on appeal only), McAllen, for appellant.

Phil Pollan, Dist. Atty., Fort Stockton, Douglas M. Becker and Ray Goldstein, Sp. Prosecutors, Austin, Robert Huttash, State's Atty., Austin, for the State.

Before the court in banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

The jury returned a verdict of guilty of rape, and found the enhancement allegations true. As mandated by the statute in effect at the time of appellant's trial, the trial court assessed life imprisonment. The Eighth Court of Appeals (El Paso) affirmed. Fain v. State, 688 S.W.2d 235 (1985). The Court of Appeals found that appellant's claim that the evidence was insufficient to prove an element of the enhancement allegations was actually a claim of error in the jury charge, and held that, under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984) (opinion on State's motion for rehearing), there was no actual, egregious harm, leading to a denial of a fair and impartial trial. We granted appellant's petition for discretionary review to examine this holding.

The enhancement allegations of the indictment read as follows:

"And the grand jurors aforesaid do further present that before the commission of the aforesaid offense in the First Paragraph by the said Clifton Eugene Fain, to-wit: on the 27th day of April A.D., 1977 in the 10th Judicial District Court of Galveston County, Texas in Cause Number 34,111, the said Clifton Eugene Fain was convicted of the felony offense of False Imprisonment.

"And the grand jurors aforesaid do further present that before the commission of each of the aforesaid offenses in the First and Second Paragraphs by the said Clifton Eugene Fain, to-wit: on the 26th day of September A.D., 1972 in the 54th District Court of McLennan County, Texas in Cause Number 72-201-C, the said Clifton Eugene Fain was convicted of the felony offense of Rape. Against the peace and dignity of the State."

In applying the law to the facts, the trial court instructed the jury to find the enhancement allegations true if the jury found beyond a reasonable doubt that appellant had been convicted of:

"(a) the felony o-fense [sic] of False Imprisonment in the Criminal District Court 34,111 of the 10th Judicial District Court of Galveston County, Texas, on the 27th day of April, 1977, styled, 'The State of Texas versus Clifton Eugene Fain'; and

"(b) Rape in the Criminal District Court Number 72-201-C of the 54th Judicial District Court of McLennan County, Texas, on the 26th day of September, 1972 styled, 'The State of Texas versus Clifton Eugene Fain'; and that such last named conviction of Rape, if any, occurred and the judgment thereon became final prior to the commission of the offense for which the said defendant was convicted, if he was, in Cause Number 72-201-C in the 54th Judicial District Court of McLennan County, Texas, and that said convictions, if any, in said Cause Number 72-201-C for Rape and in Cause Number 34,111 for False Imprisonment, as aforesaid, occurred, and that the judgments therein became final prior to the commission of the offense of Rape, for which you have found the defendant guilty; ...." [our emphasis.]

Paragraph (b) requires the jury to find that appellant's conviction for rape in McLennan County became final before he committed the offense. Relying on Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1982) and Ortega v. State, 668 S.W.2d 701 (Tex.Cr.App.1983), appellant claimed in the Court of Appeals that the evidence was insufficient to support the jury's finding of true, because the trial court's instruction required a finding of true to be predicated on a logical impossibility. The Court of Appeals treated appellant's insufficiency claim as a claim of jury charge error. Because appellant did not object to the error at trial, the Court of Appeals analyzed the case according to the requirements of Almanza v. State, supra, and found that the error in the charge did not require reversal.

Appellant claims in his first ground for review that the Court of Appeals erred in treating his claim of insufficient evidence as a claim of jury charge error. Appellant does not claim that the trial court's instruction requiring the jury to find that appellant's McLennan County rape conviction became final before he committed the offense constitutes a correct instruction.

In Benson v. State, supra, we stated:

"We hold that when a charge is correct for the theory of the case presented we review the sufficiency of the evidence in a light most favorable to the verdict by comparing the evidence to the indictment as incorporated into the charge."

[emphasis in original.]

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court made clear that its "rational trier of fact" standard for review of evidentiary sufficiency assumes that the trier of fact has been properly instructed:

"After [In re] Winship [397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ] the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must not be simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilty beyond a reasonable doubt."

In the instant case, no one maintains that the trial court's instruction was "correct for the theory of the case presented." Instead, in setting out his insufficient evidence claim for the Court of Appeals, appellant showed that the trial court's instruction was manifestly incorrect. Appellant's claim as presented did not constitute a valid claim of insufficient evidence. The Court of Appeals did not err in addressing instead the predicate claim of jury charge error. Appellant's first ground for review is overruled.

In his fourth ground of error in the Court of Appeals, appellant contended that this same error in the charge required reversal. Appellant did not object to this error in the charge at trial. The Court of Appeals employed the applicable Almanza standard and concluded as follows:

"In light of the actual issues at trial, as embodied in the evidence and arguments of counsel, we find that these two grounds of error present no actual, egregious harm, leading to a denial of a fair and impartial trial."

The record reflects that at the beginning of the punishment phase the prosecutor read the enhancement allegations of the indictment to the jury. Thereupon the State introduced evidence of appellant's two prior convictions. Appellant offered no evidence at punishment. The prosecutor argued that the evidence showed appellant to be the individual who had been twice before convicted, as alleged in the indictment.

Appellant set out the thesis of his argument as follows:

"... this is not an ordinary type of punishment phase in a criminal case. You get to decide something that a lot of jurors never get to decide and that's whether he has been actually convicted of two other prior offenses.

"Now, when you are asked the question, 'Is this the same man that has been convicted of two prior offenses?' you have got to ask yourselves, 'Were those convictions?' "

Appellant then argued that, because one of the judgments of conviction did not bear the signature of a judge, it was not a valid conviction. No issue was raised at trial concerning the sequence of the enhancement convictions or whether the second occurred after the first became final.

The undisputed evidence showed that appellant committed the second offense after the first had become final. The jury could not have both believed the evidence of the prior convictions and their commission and, at the same time, have found that the second offense was not committed after the first became final.

We find that the Court of Appeals was correct in holding that appellant suffered no harm leading to a denial of a fair and impartial trial.

The judgment of the Court of Appeals is affirmed.

MILLER, J., concurs in the result.

CLINTON, Judge, concurring and dissenting.

In Benson v. State, 661 S.W.2d 708, at 715 (Tex.Cr.App.1982) (Opinion on State's second motion for rehearing), we held:

"that when a charge is correct for the theory of the case presented ¹ we review the sufficiency of the evidence in a light most favorable to the verdict by comparing the evidence to the indictment as incorporated into the charge ²."

Today the Court seizes upon the first underscored language above as a means of discounting appellant's claim of insufficient evidence to establish his status as an "habitual" offender. Although I joined the opinion of the Court in Benson, now I must confess, I am not certain what is meant by the language now relied upon.

The offense in Benson was burglary "with the intent to commit the felony offense of retaliation." The jury was required to find that that retaliation intended was "for or on account of the service of another as a witness." The "theory of the case" the State apparently thought it had "presented" was, indeed, that the complainant was a "witness," under V.T.C.A. Penal Code, Sec. 36.06(a). However, in hindsight, this Court determined on original submission that complainant was no more than a "prosective witness," and therefore the State failed in its proof of the specific intent required for a burglary conviction.

It could thus be argued that for a charge to be "correct for the theory of the case presented" it must reflect what manifestly the State believed, however erroneously, was the theory of the offense it had proven, presumably as gleaned from its presentation of the evidence at trial. Undercutting this argument, however, is the analogy drawn at the very end of the opinion in Benson. There it was asserted that when a burglary indictment alleged...