Haines v. State

• Decision Date: 07 April 1965
• Docket Number: No. 37170,37170
• Citation: 391 S.W.2d 58
• Parties: Nolan Joseph HAINES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 58

391 S.W.2d 58

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

No. 37170.

Court of Criminal Appeals of Texas.

April 7, 1965.

Rehearing Denied May 19, 1965.

Second Motion for Rehearing Denied June 16, 1965.

S. F. Mafrige, Bill Hilford, Houston, for appellant.

Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Allen Stilley, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for burglary with three prior convictions for non-capital offenses life imprisonment.

Officer Lewis testified that at approximately 7 P.M., in response to a call resulting from a flash on a burglar alarm sulting from a flash on a burglar alarm system, he took his 'canine partner,' a German Shepherd dog, to the indicated furniture store, which they entered after an employee of the alarm system arrived and unlocked a door to the building; that after the dog--trained to use his sense of hearing and seeing--jumped in that direction, Officer Lewis saw a man in the cashier's booth. He further testified that after the appellant had been apprehended in the building, the appellant told him he had taken several transistor radios and electric mixers from the shelves and piled them on a bedspread on the floor; that the appellant next showed him how he had entered the building, pointing to the transom window, about ten feet high, through which he had entered and then dropped to the floor.

The manager of the furniture store testified that the store was closed at the time the alarm flashed, and that he did not give anyone his consent to break and enter the store and take property.

Jimmy B. Northrup, agent for the burglary alarm system, testified that he met Officer Lewis at the furniture store; that after entering the building he saw the appellant, who said he had been taking the merchandise and piling it upon the floor.

Proof was offered, in the instant case, of the prior convictions as alleged and the identity of the appellant as the same person who was convicted in each case. See Broussard v. State, Tex.Cr.App., 363 S.W.2d 143. Moreover, no objections were made to the introduction in evidence of the authenticated copies of the alleged prior convictions.

The appellant did not testify, but recalled Officer Lewis, who testified that he did not examine the transom window or the merchandise on the floor of the store for fingerprints but that fingerprints were a positive manner of identification.

The court charged the jury upon the law as applicable to circumstantial evidence.

Appellant contends that the trial court erred in permitting the state to read the enhancement allegations and make proof thereof before the jury on the ground that such procedure deprived him of due process and was unconstitutional. This contention was rejected in Crocker v. State, Tex.Cr.App., 385 S.W.2d 392. In the absence of a stipulation resolving the issues of the prior convicltions, proof of them as alleged in the indictment was proper. Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864; Ex Parte Reyes, Tex.Cr.App., 383 S.W.2d 804.

The evidence is sufficient to support the conviction, and no error appearing, the judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT'S MOTION FOR REHEARING

WOODLEY, Judge.

It is well settled that Art. 63, P.C. is reformatory in nature and to invoke its provisions it is necessary that each succeeding conviction be subsequent to previous convictions both in time of commission of the offense and the conviction therefor. The indictment must so allege and the averments of the indictment must be supported by proof. 1 Branch's Ann.P.C.2d, Sec. 698; Arbuckle v. State, 132 Tex. Cr.R. 41, 105 S.W.2d 219; Armendariz v. State, 163 Tex.Cr.R. 515, 294 S.W.2d 98; Rogers v....