Fletcher v. State, 38454

• Decision Date: 03 November 1965
• Docket Number: No. 38454,38454
• Citation: 396 S.W.2d 393
• Parties: Gerald Dixon FLETCHER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 393

396 S.W.2d 393

Gerald Dixon FLETCHER, Appellant, v. The STATE of Texas, Appellee.

No. 38454.

Court of Criminal Appeals of Texas.

Nov. 3, 1965.

Rehearing Denied Dec. 15, 1965.

Charles E. Benson, Lubbock (on appeal only), for appellant.

Alton R. Griffin, Dist. Atty., George H. Nelson, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is burglary; the punishment, enhanced by two prior convictions for felonies less than capital, life.

The indictment presented November 9, 1960 alleged the burglary of a house occupied and controlled by Boyd Smith with intent to commit theft.

The offense was alleged to have been committed on or about the 20th day of October, 1960, in Lubbock County.

A prior conviction for felony theft on December 2, 1958, in the 99th District Court of Lubbock County, and another conviction in the 140th District Court of Lubbock County for felony theft which became final on August 29, 1957, were alleged for enhancement of punishment purposes.

The case was tried on January 29, 1965. Appellant having on January 15, 1965 made affidavit that he was destitute and without means of employing counsel, the court appointed Wilson Kermickel, a practicing attorney of Lubbock County, to represent him. Attorney Kermickel conducted his defense at the trial which resulted in a jury verdict and judgment of conviction of February 15, 1965.

Appellant was sentenced and gave notice of appeal. Ten days later the trial judge, having been advised of Mr. Kermickel's intention to withdraw as attorney for appellant, appointed Hon. Walter J. Taylor to represent the appellant in his appeal to this Court.

On April 30, 1965 the firm of Benson and Benson of Lubbock was employed to represent appellant on appeal. The case has been briefed and argued by such employed counsel.

Court appointed counsel Walter J. Taylor, upon his motion, was discharged by order of the trial judge entered May 14, 1965.

Time for filing bills of exception was extended upon motion of appellant's employed counsel, but none were filed.

The evidence shows that on October 20, 1960, Lubbock police officers received information that someone was going to break into Boyd Smith Auto Supply in Lubbock that night.

A stake-out was arranged and officers equipped with walkie-talkies and armed with shot guns were watching the building between 9 and 10 o'clock P.M., or thereabout, when a black Plymouth automobile circled the block and stopped in the parking area adjacent to the rear of the Boyd Smith Auto Supply building.

Four men got out of the car and were seen to enter the back door of the building.

When Sgt. Eller and a fellow officer got to the door they found it about halfway open, the bar on the inside having been pushed off or forced to fall off.

The officers pushed their way in and called to the men inside to come out, that the building was surrounded. A few seconds later these officers heard glass breaking.

Other officers, having seen the black Plymouth and having been informed by walkie-talkie that four men had gotten out and had gone in the back door of the building, were watching the front 'when suddenly this front glass exploded and these four people--four men came out, just leaped through the window.'

Faced by the armed officers and called upon to stop, they did so and were taken into custody. Appellant was identified as one of the four men.

Boyd Smith testified that he was the owner and operator of Boyd Smith Auto Supply and lessee of the building; that the hours for conducting the business were from 8 to 6; that he did not know appellant or either of his companions and did not give either of them permission to enter the building, and that he gave no one permission to enter the building without a key or without permission from him.

The prior convictions were established by the records of the court and the State Department of Corrections and by testimony of the District Clerk and a deputy sheriff in charge of identification.

We find the evidence summarized above sufficient to sustain the conviction.

The state may allege and prove a prior conviction alleged for the purpose of enhancing the punishment under the applicable enhancement statute. (Art. 61 to 63 Vernon's Ann.P.C.) Howard v. State, Tex.Cr.App., 387 S.W.2d 387; Stephens v. State, Tex.Cr.App., 377 S.W.2d 189 (cert. denied 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274); Sims v. State, Tex.Cr.App., 388 S.W.2d 714; Redding v. State, 159 Tex.Cr.R. 535, 265 S.W.2d 811 (cert. denied 348 U.S. 838, 75 S.Ct. 38, 99 L.Ed. 661) and cases cited; Breen v. Beto, 5 Cir., 341 F.2d 96; Taylor v. Beto, 5 Cir., 346 F.2d 157.

Appellant's contention that the reading of the portion of the indictment alleging a prior conviction for burglary deprived him of a constitutional right is overruled

In view of Art. 847 Vernon's Ann.C.C.P. and the absence of any evidence to overcome the presumption therein provided, there is no support for appellant's contention that the indictment was not read to the jury and the appellant did not enter a plea. Also, the judgment...