Haines v. State, 61079

• Decision Date: 21 October 1981
• Docket Number: No. 61079,61079
• Parties: Nolan Joseph HAINES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 367

623 S.W.2d 367

Nolan Joseph HAINES, Appellant, v. The STATE of Texas, Appellee.

No. 61079.

Court of Criminal Appeals of Texas, En Banc.

Oct. 21, 1981.

Rehearing Denied Nov. 25, 1981.

Joe Cannon, Houston, for appellant.

Carol S. Vance, Dist. Atty., Calvin A. Hartmann, and J. Gordon Dees, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TEAGUE, Judge.

Appellant, no stranger to this Court for reasons later expressed in this opinion, was charged and convicted for committing the offense of burglary of a building, see V.T.C.A. Penal Code, Sec. 30.02. After a jury found him guilty of the primary offense and also found that he had previously been convicted of two prior felony offenses, the trial court assessed his punishment at life imprisonment in the penitentiary. See V.T.C.A. Penal Code, Sec. 12.42(d).

In several grounds of error, appellant contends reversible error was committed by the trial court when it, over objection, permitted the State to use a prior conviction, bearing cause number 75,895, which, with the other alleged prior conviction, caused appellant's punishment to be assessed at life imprisonment. In short, he claims that the State should not have been permitted to use the numbered alleged prior conviction as he claims it had previously been "successfully" used to enhance his punishment to life imprisonment in a cause formerly decided by this Court. It is, therefore, readily apparent that appellant's cornerstone to his claim lies in what this Court said or did not say in his former conviction, which cause we will now discuss.

In Haines v. State, 391 S.W.2d 58 (Tex.Cr.App.1965), appellant was charged by indictment with the offense of burglary, with three prior noncapital felony convictions alleged for enhancement of punishment; his punishment, assessed by a jury pursuant to Art. 63, V.A.P.C., was life imprisonment. The alleged prior convictions were numbered 62,191, 65,729, and 75,895. After review, this Court ordered appellant's conviction reformed from life imprisonment to 12 years in the penitentiary. See Art. 62, V.A.P.C (1925). ¹ It was determined that the record failed to disclose any evidence to sustain the allegation of the indictment that the offense for which the defendant was convicted in cause number 75,895 was committed after the judgment of conviction in cause number 65,729, on January 25, 1952, or the judgment of conviction in cause number 62,191, on December 19, 1945, became final. Because there was ample evidence that appellant had been convicted of the offense of burglary in at least one of the enhanced causes, this Court ordered the judgment of conviction reformed, pursuant to Art. 62, supra, to 12 years' confinement in the penitentiary.

Appellant complains in this cause that the State should not have been permitted to use the prior conviction, bearing cause number 75,895, because it had previously been successfully used for purposes of enhancement of punishment in his former cause; thus, he argues, the State was foreclosed from again using the same prior felony conviction. He claims this action violated the general rule that the same prior felony conviction may not be used twice to enhance punishment. See Rollins v. State, 542 S.W.2d 163 (Tex.Cr.App.1976); Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975). We overrule his contention.

We first observe that as a result of what this Court has enunciated in the past, regarding the use of a prior conviction for enhancement of punishment purposes more than one time, see, for example, Ex parte Montgomery, 571 S.W.2d 182 (Tex.Cr.App.1978), the Legislature enacted V.T.C.A. Penal Code, Sec. 12.46, which provides:

The use of a conviction for enhancement purposes shall not preclude the subsequent use of such conviction for enhancement purposes.

This statutory provision became effective June 7, 1979. See Ex parte McAtee, 586 S.W.2d 548, 550 (Tex.Cr.App.1979). By its wording, the new statutory provision has effectively changed the former general rule and overruled such cases as Ex parte Montgomery, supra, and Shivers v. State, 574 S.W.2d 147 (Tex.Cr.App.1978). However, we need not discuss the applicability of Sec. 12.46 to this cause, for appellant's trial and conviction occurred prior to its passage. See Ex parte Alegria, 464 S.W.2d 868 (Tex.Cr.App.1971).

The question in this cause is whether the State has successfully used appellant's above underscored numbered prior conviction twice for enhancement purposes in any two cases.

What is often overlooked by the bench and bar, although well established in law, is the fact that a prior felony conviction may first be used to elevate the punishment for the primary offense to "second offender" status and then if this "second offender" conviction becomes final, the prior conviction may again be used in a subsequent conviction to enhance the punishment from that of a "second offender" to that of a "third offender." Thus, the prior conviction may be used twice, but not to twice enhance the punishment to achieve the same automatic punishment. See Arts. 62 and 63, supra; cf. Sec. 12.42, supra.

In Ex parte Montgomery, supra, 183-84 (1978), the rules governing the use of prior convictions were succinctly set out by then Judge Phillips of this Court, when he wrote the Court's opinion and stated:

The law is clear that in prosecutions under Sec. 12.42 the same prior conviction cannot be used to enhance a defendant's punishment to life as an habitual criminal in two separate cases. See Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975); Ex parte Friday, 545 S.W.2d 182 (Tex.Cr.App.1977); Gooden v. State, 140 Tex.Cr.R. 351, 145 S.W.2d 179 (1940). It is the general rule that a prior conviction cannot be used twice for enhancement purposes in any two cases. See Shaw v. State, 530 S.W.2d 838 (Tex.Cr.App.1976); Ex parte White, 538 S.W.2d 417 (Tex.Cr.App.1976); Rollins v. State, 542 S.W.2d 163 (Tex.Cr.App.1976); Miller v. State, 139 Tex.Cr.R. 406, 140 S.W.2d 859 (1940); Cothren v. State, 139 Tex.Cr.R. 339, 140 S.W.2d 860 (1940); Kinney v. State, 45 Tex.Cr.R. 500, 79 S.W. 570 (1904). This general rule is subject to the exception that the use of a prior conviction to enhance the punishment as a second offender does not preclude the State from again using that conviction to affix the status of a habitual criminal. See Ex parte White, supra; Ex parte Calloway, 151 Tex.Cr.R. 90, 205 S.W.2d 583 (1947); Mayo v. State, 166 Tex.Cr.R. 470, 314 S.W.2d 834 (1957); Head v. State, 419 S.W.2d 375 (Tex.Cr.App.1967); Cleveland v. State, 493 S.W.2d 145 (Tex.Cr.App.1973).

A review of all the above-mentioned cases indicates that if a prior conviction is used successfully, it cannot be used for enhancement again, unless the State uses it for the purposes of showing appellant to be a habitual criminal for the first time. If, on the other hand, the prior prosecution was not successfully enhanced, then the prior conviction may be used in a new prosecution. See Florez v. State, 479 S.W.2d 683 (Tex.Cr.App.1972); Benedict v. State, 172 Tex.Cr.R. 570, 361 S.W.2d 373 (1962); Brown v. State, 150 Tex.Cr.R. 386, 196 S.W.2d 819 (1946); Cleveland v. State, supra, and cases cited therein.

The key to answering the question posed is whether the use of the underscored numbered prior conviction for enhancement purposes was "successful," as alleged in the indictment in which it was originally pled. Webster's New Collegiate Dictionary, 1154, 1980 Edition, defines the word "successful" as meaning "resulting or terminating in success." Thus, for a prior felony conviction to have been used "successfully," it necessarily follows that its use resulted or terminated in success; i. e., it was successful in what it was intended to accomplish.

It therefore appears that the word "successfully," as used in our past interpretations of the recidivist statutes, means exactly that: Before the State is precluded or foreclosed from using the same prior felony conviction to enhance a defendant's punishment to life as an habitual criminal, the prior conviction must have been used "successfully," i. e., it resulted in the defendant receiving the maximum possible punishment that is automatically provided by law, to-wit: life imprisonment. If a prior conviction has not been used successfully in a "third offender" cause, it may be used for enhancement purposes until life imprisonment is finally achieved, Ex parte Montgomery, supra. In sum, to prohibit the State from using the prior conviction in a habitual cause, even where used in the same or a different prior "habitual" cause, it must have been used "successfully." E. g., Johnson v. State, 158 Tex.Cr.R. 154, 253 S.W.2d 1006, 1007-8 (1953); ² Ex parte Shivers, 501 S.W.2d 898, 902 (Tex.Cr.App.1973). Of course, what we say today applies only to those causes where the offense occurred prior to the effective date of Sec. 12.46, supra, June 7, 1979, for that statute has overruled the "successful v. unsuccessful" rule of law we hereinafter discuss. For those "third offenders" who commit a felony offense after June 7, 1979, the State is now free to use a prior conviction for "third offender" purposes, regardless of whether the prior conviction was previously used successfully or unsuccessfully against a defendant. Cf. Ex parte Alegria, supra; Ex parte Montgomery, supra.

The "successful v. unsuccessful" theory has long been a part of our law. Sigler v. State, 143 Tex.Cr.R. 220, 157 S.W.2d 903 (1942), appears to be the first case to discuss this theory. There, the defendant, charged as an habitual criminal, was tried and acquitted of committing the offense of burglary. The State subsequently re-indicted him for the primary offense of felony theft and alleged the same two prior felony convictions it had alleged when the primary offense was burglary. He was convicted of the theft offense but his punishment was assessed at only ten...