Fennell v. State, 42906
| Decision Date | 27 May 1970 |
| Docket Number | No. 42906,42906 |
| Parties | Robert Lee FENNELL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
James D. Durham, Jr., Amarillo, for appellant.
Tom Reese, Dist. Atty., John B. Reese, Asst. Dist. Atty., Amarillo, and Jim D. Vollers State's Atty., Austin, for the State.
The conviction is for the felony offense of possession of a pistol by an ex-convict away from the premises upon which he lives as denounced by Article 489c, Vernon's Ann.P.C.; the punishment was assessed at two years.
Appellant's sole contention is that he was denied due process, because the jury was made aware of his prior felony conviction when the entire indictment was read before the finding of guilt.
The allegation of the felony conviction in the indictment was an essential element of the offense charged in the indictment and not for enhancement of an offense that would otherwise be a misdemeanor.
Article 36.01, Sec. 1, Vernon's Ann.C.C.P., provides:
The same contention was made in a subsequent offender shoplifting case and was overruled. Leal v. State, Tex.Cr.App., 445 S.W.2d 750. 1
No error has been shown; the judgment is affirmed.
1 Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, held that the reading of prior convictions to the jury before a finding of guilt did not violate Spencer's constitutional rights.
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Oliva v. State
...reference to the assault statute makes it an even simpler example.27 See Tex. Penal Code § 46.04(a). See also Fennell v. State , 455 S.W.2d 248, 249 (Tex. Crim. App. 1970) (prior felony conviction "was an essential element of the offense charged in the indictment and not for an enhancement ......
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Matew v. State
...proved Applicant was a felon by introducing proof of Applicant's prior felony conviction for rape of a child"); Fennell v. State , 455 S.W.2d 248, 249 (Tex. Crim. App. 1970) (concluding prior felony conviction for former unlawful possession of a weapon statute "was an essential element of t......
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Gant v. State
...v. State, 603 S.W.2d 879 (Tex.Cr.App.1980); Diamond v. State, 530 S.W.2d 586 (Tex.Cr.App.1975); see also and compare Fennell v. State, 455 S.W.2d 248 (Tex.Cr.App.1970); Leal v. State, 445 S.W.2d 750 (Tex.Cr.App.1969); and Ex parte Gutierrez, 600 S.W.2d 933 (Tex.Cr.App.1980). (All emphasis i......
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Matew v. State
... ... proof of Applicant's prior felony conviction for rape of ... a child"); Fennell v. State , 455 S.W.2d 248, ... 249 (Tex. Crim. App. 1970) (concluding prior felony ... conviction for former unlawful possession of a ... ...