Garcia v. State

• Decision Date: 27 November 1940
• Docket Number: No. 20676.,20676.
• Citation: 145 S.W.2d 180
• Parties: GARCIA v. STATE.
• Court: Texas Court of Criminal Appeals

Page 180

145 S.W.2d 180

GARCIA v. STATE.

No. 20676.

Court of Criminal Appeals of Texas.

November 27, 1940.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

Ramon Garcia, alias Antonio Talamentez, was convicted of assault with intent to murder, and he appeals.

Reversed and remanded for new trial.

Robert M. Sellers, of El Paso, for appellant.

Roy D. Jackson, Dist. Atty., and Harold S. Long, Asst. Dist. Atty., both of El Paso, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

Appellant was convicted in the District Court of El Paso County under a charge of assault with intent to murder.

It is alleged in the indictment charging assault to murder that he was duly and legally convicted in the District Court of the United States for the Western District of Texas on January 15, 1937, for a felony, to-wit, unlawfully entering into the United States of America after having been legally deported. It alleges another conviction on a similar charge in the United States District Court for the District of Arizona on the 4th day of May, 1935. It is further alleged that on the 19th day of November, 1926, he was convicted in the Superior Court of Marin County, California, for a felony less than capital, to-wit, escaping from the state prison. It is further alleged that on the 11th day of April, 1922, he was convicted in the Superior Court of Estanislaus County, California, for a felony less than capital, to-wit, burglary.

Upon the court's charge on these issues, the jury found appellant guilty and assessed his punishment at life imprisonment in the penitentiary.

The enhanced penalty is fixed in this case by authority of Article 63, Vernon's Annotated Penal Code, which reads as follows: "Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary."

It is contended by the appellant that in order to support the life sentence under the statute quoted, the previous felonies must have been committed within the State of Texas, and that they must have been convictions in the state courts. These contentions will not be sustained. This court has heretofore held that a conviction in the Federal Court of previous offenses will support the imposition of the life sentence. See Arnold v. State, 127 Tex.Cr.R. 89, 74 S.W.2d 997. It is well settled that convictions of a felony in other states will support the enhancement of the penalty.

The only question which we consider to be open for interpretation by this court is whether or not the prior convictions must be for offenses which are denounced by the laws of Texas as felonies. By statutory enactments, several states, among them Louisiana, California and New York, provide that the convictions, if had in other states, must be for felonies denounced as such by the laws of these states. So far as we are able to find, no state has, by statutory enactment, provided specifically that the life imprisonment or increased punishment may be imposed because of convictions in another state for a felony not so denounced by the laws of the convicting state.

The history of that section of our statute is not such as will reveal the intention of the Legislature in this regard. It first appears in the original codification known as Texas Codes, dated 1857. There is but little difference in the language, and no substantial difference in the meaning of this article, as it appeared in the various codifications of our penal statutes through the years.

Arnold v. State, dated May 30, 1934, and reported in 127 Tex.Cr.R. 89, 74 S.W.2d 997, 999, makes this pronouncement: "The offense of which the appellant was convicted in the federal court is one that is denounced as a felony punishable by imprisonment in the penitentiary by the statutes of this state and of the United States."

It is further said in the same opinion: "The exact point that appellant stresses, namely, that the conviction in the federal court cannot be used to enhance the penalty against him, as above stated, has not been passed on so far as the members of this court are aware. Considered in the light of the precedents, however, upon the general subject of the trial of habitual criminals, no sound reason is perceived for setting aside the present judgment. As stated above, one of the prior convictions against the accused was in the United States court. It was in the state of Texas, however, and was for an offense denounced by the statutes of the state."

While it may be understood that this opinion lays down no rule on the subject, it is a strong intimation that the felony conviction in another state, in order to be used to enhance the punishment in this state, should also be one that is denounced as a felony by our law. So far as this court is...