Frausto v. State
| Decision Date | 15 December 1982 |
| Docket Number | No. 3,No. 61985,61985,3 |
| Parties | Manuel Duran FRAUSTO, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Mike Thompson, Michael C. Crowley, El Paso, for appellant.
Steve W. Simmons, Dist. Atty., and Lane C. Reedman, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before DALLY, W.C. DAVIS and TEAGUE, JJ.
This is an appeal from a conviction for the offense of burglary of a habitation. Appellant's guilt was determined by a jury, which also assessed his punishment at imprisonment for 23 years.
Appellant complains in two related grounds of error that the prosecutor was permitted to inform the jury panel, during voir dire proceedings, of the substance of the enhancement paragraph contained in the indictment. 1 Appellant made a timely and adequate objection to the prosecutor's remarks. We hold that his objection should have been sustained, rather than overruled, by the trial court. We will reverse.
During the voir dire examination of the jury panel, the prosecutor first qualified the prospective jurors on their ability to consider the entire range of punishment for a first degree felony, i.e., imprisonment for five to ninety-nine years of life. 2 He then made the following remarks, which were interrupted by appellant's objection:
Okay. Now, ladies and gentlemen, in this case the defendant is, like I have told you, charged with the offense of burglary of a habitation. But the State of Texas has further charged in its indictment that on or about the 6th day of February, of 1974, in the 34th Judicial District Court of El Paso County, Texas, in cause number 27445-205, the said Manuel Frausto was legally convicted of a felony--
After the trial court somewhat reluctantly overruled appellant's objection to the above, the prosecutor continued as follows:
Now, ladies and gentlemen, as I was saying, the State further alleges in this same indictment where we allege that this man, Frausto, burglariezed (sic) the home of Mrs. Winfree, we further allege in that indictment that in 1974 in the 34th Judicial District Court in cause number 27445, that the said Manuel Duran Frausto, under the name of Manuel Frausto, was duly and legally convicted in said last named Court of a felony, to-wit: burglary.
The prosecutor then explained that the range of punishment would be imprisonment for fifteen to ninety-nine years or life, if the State succeeded in proving the allegations contained in the enhancement paragraph. 3 He also qualified several individual jurors on their ability to consider this entire range of punishment, before moving on to other matters.
As it turned out, the jury actually had no occasion to consider the accuracy of the enhancement paragraph allegations. Appellant argued a motion to quash that paragraph in the trial court, immediately after receipt of the jury's verdict of guilt. Appellant contended in that motion that although the indictment alleged that he had previously been convicted upon an indictment, 4 he had actually been convicted upon a complaint and information. Furthermore, it was shown that the complaint was unsworn. The trial court granted appellant's motion to quash, as well as the prosecutor's motion to dismiss the enhancement paragraph. The jury was charged on the range of punishment for an unenhanced first degree felony.
In one of his two pertinent grounds of error, appellant particularly emphasizes the fact that the enhancement paragraph was dismissed, after its contents were communicated to the jury. We do not consider this fact essential to our decision, as the ruling on appellant's objection was either correct or erroneous at the time it was made, notwithstanding subsequent developments. But the fact of the dismissal of the enhancement paragraph does serve to highlight the danger of permitting the prosecution to inform the jury panel of alleged prior convictions before the guilt stage of trial has even commenced.
The first section of Art. 36.01, V.A.C.C.P., entitled "Order of Proceeding in Trial," reads as follows:
1. The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.
As was stated in Cox v. State, 422 S.W.2d 929 (Tex.Cr.App.1967), "There can be no doubt that the provisions of Art. 36.01(1), supra, were designed to serve a salutary purpose and should be strictly complied with by all prosecutors." The purpose is prevention of the extreme prejudice which would almost inevitably result from an announcement at the outset of the proceedings that the State believes that the defendant was previously convicted of a particular offense at a particular time and in a particular court. Violation of this mandatory provision will result in reversal. Heredia v. State, 508 S.W.2d 629 (Tex.Cr.App.1974).
In the instant case, the prosecutor recounted virtually all of the allegations contained in the enhancement paragraph of the indictment, including the offense, cause number, date and court of conviction. We conclude that the prosecutor's statement to the jury panel was the functional equivalent of reading to the jury panel the enhancement paragraph to the jury, a violation within the meaning and scope of Art. 36.01(1), V.A.C.C.P. This constituted reversible error.
The State predictably argues that under prior decisions of this Court, it may inform the jury panel of the range of punishment applicable to a felony offense enhanced by a prior felony conviction. It particularly relies on Bevill v. State, 573 S.W.2d 781 (Tex.Cr.App.1978). The Court in Bevill, however, did not place its stamp of approval on the practice of informing the jury panel of the existence of the prior conviction itself. This distinction was clarified in Martinez v. State, 588 S.W.2d 954 (Tex.Cr.App.1979), where the Court stated:
Statements of the rule in, e.g., Castillo v. State, 494 S.W.2d 844, 845 (Tex.Cr.App.1973) and Heredia v. State, 508 S.W.2d 629 (Tex.Cr.App.1974), that enhancement allegations must not be read to the jury at the outset of trial are not contradicted by the holding in Bevill that both the State and the accused have the right "to inform" the jury of the range of...
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...the probative value of the evidence of the prior offense, nor did he object to its submission. See generally, Frausto v. State, 642 S.W.2d 506, 507 (Tex.Crim.App.1982); Heredia v. State, 508 S.W.2d 629, 630 (Tex.Crim.App.1974); Cox v. State, 422 S.W.2d 929, 930 (Tex.Crim.App.1968). In fact,......
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