Hathorne v. State, 42871

Citation459 S.W.2d 826
Decision Date21 October 1970
Docket NumberNo. 42871,42871
PartiesHenry Glenn HATHORNE, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Moulton A. Goodrum, Houston (court-appointed on appeal), Stanley Beyer, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brought and William Darling, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION ON STATE'S MOTION FOR REHEARING

ONION, Judge.

Our opinions on original submission are withdrawn and the following is substituted in lieu thereof.

This is an appeal from a conviction for burglary with intent to commit theft with the punishment, enhanced by two prior noncapital felony convictions under the provisions of Article 63, Vernon's Ann.P.C., being assessed at life.

The State's motion for rehearing presents for reconsideration in depth the question of whether a trial judge is disqualified because he was the district attorney at the time of a prior conviction alleged for enhancement. Stated another way, the question is whether the inclusion of a prior conviction (at which time the trial judge was district attorney) in the State's pleading (the indictment) disqualifies the judge on the ground he was counsel in the case.

Although the issue was not raised during the trial, it was assigned as a ground of error in the appellate brief filed in the trial court under the provisions of Article 40.09, Sec. 9, Vernon's Ann.C.C.P. And appellant points out that this court may take judicial notice that the trial judge was the District Attorney for Harris County on the date of the second prior conviction (for burglary) alleged for enhancement in the indictment and shown to have occurred in Cause No. 75211 in the then Criminal District Court of Harris County on October 14, 1955. 1 See 23 Tex.Jur.2d, Evidence, Sec. 19, p. 39.

'Although there is some authority to the contrary, the general rule at common law was that a judge was not disqualified by prior representation or activity as attorney or counsel in a case coming before him.' 72 A.L.R.2d 450, Sec. 3. See also 56 Yale L.J. 605, 609, 611, 612. 'Under the common law from the earliest times a judge was disqualified (only) by an interest in the cause.' 2 Va.L.Rev. 147. In more recent times the States have deemed it advisable to enlarge the disqualifications of judges by constitution and statutes setting up other grounds. Texas was no exception. See Interpretative Commentary, Article V, Sec. 11, Texas Constitution, Vernon's Ann.St.

Article V, Sec. 11 of the State Constitution reads in part as follows: 'No judge shall sit in any case wherein * * * he shall have been counsel in the case.'

Article 30.01, V.A.C.C.P., also provides in part: 'No judge * * * shall sit in any case * * * where he has been of counsel for the State or the accused * * *.'

These provisions have been construed as being mandatory and must be observed. Pennington v. State, 169 Tex.Cr.R. 183, 332 S.W.2d 569, 570, and authorities there cited. See also Ex parte Washington, Tex.Cr.App., 442 S.W.2d 391.

It has been held, however, that to come within the meaning of 'counsel in the case' in the statute prescribing qualification of judges, it must appear that the judge acted as counsel In the very case before him. Ex parte Largent, 144 Tex.Cr.R. 592, 162 S.W.2d 419, cert. den. Largent v. Reeves, 317 U.S. 668, 63 S.Ct. 72, 87 L.Ed. 536, reh. den. 317 U.S. 713, 63 S.Ct. 443, 87 L.Ed. 568.

It is, of course, well settled that the mere fact that the trial judge personally prosecuted the appellant in past cases does not disqualify him from presiding over a trial where a new offense is charged. Koening v. State, 33 Tex.Cr.R. 367, 26 S.W. 835; Trinkle v. State, 59 Tex.Cr.R. 257, 127 S.W. 1060; Goodspeed v. Beto, 5th Cir., 341 F.2d 908; 2 33 Tex.Jur.2d, Judges, Sec. 57, pp. 426, 427; Carr v. Fife, 156 U.S. 494, 15 S.Ct. 427, 39 L.Ed. 508.

And it would logically follow that the same rule would have application where the trial judge had defendanted the accused at the time of the prior conviction. Ex parte Stubblefield, Tex.Cr.App., 412 S.W.2d 63. 3

Therefore, if only the instant offense is charged in the indictment absent any allegations of prior convictions for the purpose of enhancement only then the trial judge is not disqualified because of his role as counsel in such previous conviction. If during such a trial the defendant takes the stand and the State seeks to impeach him by virtue of a previous felony conviction prosecuted by the judge as a district attorney, does such action or proof of such conviction ipso facto disqualify the judge? We think not, even though the judge must of necessity pass upon the admissibility of evidence relating to such prior conviction, properly instruct the jury as to the law concerning the impeachment evidence and most likely pass subsequently upon the motion for new trial, all of which involve judicial discretion. One can well imagine the consequences of a holding to the contrary. The problem can possibly arise in other contexts, such as the admission of extraneous offenses. 4

Under our present bifurcated trial system (Article 37.07, V.A.C.C.P.), the State or defense may offer testimony at the penalty stage of the trial as to the accused's 'prior criminal record,' and the right to do so is not dependent upon or restricted by allegations of prior convictions in the indictment or information.

If the State or defense offers prior convictions as part of that 'record' where the trial judge served as prosecutor or defense counsel, does this result in an automatic disqualification of the judge and cause a mistrial? Certainly not, even though evidence of such conviction may, in the discretion of the judge or jury, result in an increased or enhanced penalty. And this is true even if the prior convictions introduced court have been (but were not) alleged in the indictment or information for the purpose of enhancement. 5

Also under our present bifurcated trial system, when a prior conviction or convictions are alleged for enhancement of punishment only and are not jurisdictional, that portion of the indictment or information is not read until the second or penalty state of the trial and the proof thereof is not properly offered until then. Article 36.01, V.A.C.C.P.; Holcombe v. State, Tex.Cr.App., 424 S.W.2d 635.

The purpose of the enhanced penalty statutes (Articles 61, 62, 63 and 64, V.A.P.C.) is reformatory in nature and does not create additional offenses. The historical fact of a prior conviction is merely used as evidence to increase the punishment. See 1 Branch's Ann.P.C., 2d ed., Sec. 698, p. 681; Ex parte Davis, Tex.Cr.App., 412 S.W.2d 46. 'Enhancement allegations are not a part of the substantive offense but are merely a guide for the court or jury in fixing the final punishment in the event of a conviction of the presently charged offense.' 16 Tex.Jur.2d, Sec. 411, p. 638. (Emphasis Supplied) Therefore, it is clear that '(a)n allegation of prior convictions is no part of the present charge and is no proof of another or different offense. * * *' 16 Tex.Jur.2d, Sec. 404, p. 625. See also 5 Wharton's Criminal Law and Procedure, Sec. 2218, p. 435; 24B C.J.S. Criminal Law § 1958.

It is further noted that the allegations as to prior convictions do not constitute 'counts' in the indictments. Square v. State, 167 S.W.2d 192, 145 Tex.Cr.R. 219; Beck v. State, Tex.Cr.App., 420 S.W.2d 725; Steward v. State, Tex.Cr.App., 422 S.W.2d 733; Baker v. State, Tex.Cr.App., 437 S.W.2d 825 (concurring opinion). It is also observed that the more appropriate plea (as to such prior convictions) to be entered at the penalty stage only in the event of a finding of guilt as to the instant offense is 'true' or 'not true.' See Davis v. State, Tex.Cr.App., 429 S.W.2d 895; Baker v. State, supra (concurring opinion). Articles 36.01 and 37.07, V.A.C.C.P.

Under such recidivist statutes, the State may also waive and abandon such allegations of prior convictions with the approval and consent of the court and the failure of the State to offer proof as to the alleged prior convictions or to prove affirmatively such allegations will not prevent a successful prosecution and conviction for the instant offense.

Thus in view of all of the foregoing, we must return to the question before us: Does the mere inclusion of allegations as to a prior conviction in the indictment for the purpose of enhancement only thereby disqualify the trial judge absolutely and automatically if he has been the prosecutor or defense counsel at the time of the prior conviction so alleged?

The question is neither new or novel in this state, and therein lies our difficulty.

When first presented in a misdemeanor prosecution under the provisions of Article 61, V.A.P.C., at a time when the unitary trial practice still prevailed, this court in Adcock v. State, 146 Tex.Cr.R. 84, 172 S.W.2d 103 (1943), acknowledged the question was 'not free from difficulty' and stated 'We know of no case and have not been able to find one, wherein the exact question here under consideration has been discussed by this or any other court.' In holding the trial judge disqualified because he had been of counsel in one of prior convictions alleged, the court noted the former convictions charged in the complaint and information were 'a part of the case which the State is required to prove affirmatively as any other fact' and that judicial discretion was involved in passing upon the admissibility of such evidence as well as on the motion for new trial.

In this case of first impression occurring many, many years after disqualification for being counsel in the case becoming a part of our law, it appears that the court did not carefully consider the true nature of the office of the alleged prior convictions nor the fact that proof of the same was not essential to a conviction for the instant offense nor many of the other...

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