Gamez v. State, 39457
| Citation | 403 S.W.2d 418 |
| Decision Date | 18 May 1966 |
| Docket Number | No. 39457,39457 |
| Parties | Joe Y. GAMEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Richard T. Brady, Jack A. Efron, San Antonio, for appellant.
James E. Barlow, Dist. Atty., Charles T. Conaway, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is possession of a narcotic drug, heroin. The jury found appellant guilty of this offense and also determined that he had previously been convicted for a violation of the Uniform Narcotic Drug Act, Article 725b, Vernon's Ann.P.C., as charged in the indictment, and punishment was assessed at 10 years confinement in the Texas Department of Corrections.
In response to a telephone call from an informer, Officer Dave Flores of the San Antonio Police Department proceeded to a designated address near which he observed appellant walking along the street. As the officer's vehicle approached, he saw appellant throw an object into the street and under the police car. Flores apprehended appellant and recovered from the ground under the police car a number five gelatin capsule, the contents of which were subsequently analyzed and found to be heroin.
A prior conviction for possession of marijuana was proved by the state.
The evidence is sufficient to support appellant's conviction.
Appellant, in his Amended Motion for New Trial, complained that the trial court erred in permitting the second paragraph of the indictment, alleging the prior conviction for violation of Article 725b, to be read to the jury after appellant had stipulated that he had been so previously convicted. He re-urges this point on appeal, and also contends that his stipulation precluded the state's presentation of evidence of the prior conviction before the jury, and further that error was committed when reference was made to the prior conviction in the court's charge.
This Court has approved the practice of permitting the accused to stipulate as to prior convictions alleged for enhancement under the provisions of Article 62 and 63, Vernon's Ann.P.C. Crocker v. State, Tex.Cr.App., 385 S.W.2d 392; McDonald v. State, Tex.Cr.App., 385 S.W.2d 253; Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864; Salinas v. State, Tex.Cr.App., 365 S.W.2d 362. The rationale is that the prior convictions are not an element of the primary offense with which the accused is charged, and that the penalty in such cases is fixed by law, thereby rendering it unnecessary for the jury to reach a verdict on any issue other than that of guilt or...
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Sylvester v. State
...method of proving prior convictions alleged for enhancement employed in the case at bar has been approved by this Court in Gamez v. State, Tex.Cr.App., 403 S.W.2d 418, Cert. Den. 386 U.S. 929, 87 S.Ct. 877, 17 L.Ed.2d Ground of error number five of appellant's pro se brief is overruled. In ......
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...and the evidence is admissible. See Robinson v. State, Tex.Cr.R., 458 S.W.2d 812; King v. State, Tex.Cr.R., 416 S.W.2d 823; Gamez v. State, Tex.Cr.R., 403 S.W.2d 418; McKenzie v. State Tex.Cr.R., 390 S.W.2d 281; Spriggins v. State, Tex.Cr.R., 372 S.W.2d 676; Allen v. State, 159 Tex.Cr.R. 46......
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