Heredia v. State
| Decision Date | 01 May 1974 |
| Docket Number | No. 48272,48272 |
| Parties | Roberto HEREDIA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Thomas Rocha, Jr., San Antonio (On appeal only), for appellant.
James A. Mashburn, Dist. Atty., Jerry Buckner, Asst. Dist. Atty., Midland, and Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for the offense of possession of heroin. Appellant having been previously convicted of a felony violation of the Texas Uniform Narcotic Drug Act (see Art. 725b, Section 23(a), Vernon's Ann.P.C.), and having been found to have been twice previously convicted of a felony less than capital (see Art. 63, V.A.P.C.), punishment was assessed at life imprisonment.
Appellant in his first ground of error contends reversible error was committed when the trial court permitted the reading to the jury, at the commencement of the guilt stage of the trial, of that portion of the indictment alleging the prior conviction of a felony violation of the Texas Uniform Narcotic Drug Act over his timely objection, and relies upon Article 36.01, Subd. 1, Vernon's Ann.C.C.P., which provides:
The State relies upon Parasco v. State, 165 Tex.Cr.R. 547, 309 S.W.2d 465, and Gamez v. State, Tex.Cr.App., 403 S.W.2d 418, for the proposition that the allegation under Article 725b, Sec. 23(a), supra, of a prior felony conviction for violation of the Texas Uniform Narcotic Drug Act 'is an element of the . . . offense itself and not an allegation such as would merely enhance the punishment . . .' That holding however, was expressly overruled in Bell v. State, Tex.Cr.App., 504 S.W.2d 498, wherein this Court held that such an allegation under Article 725b, Sec. 23(a), supra, is within the meaning of Article 36.01, supra, 'for purposes of enhancement only and . . . not jurisdictional.' Error was therefore committed.
In Bell, supra, no reversible error was found because the objection was raised for the first time on appeal. Cf. Cox v. State, Tex.Cr.App., 422 S.W.2d 929. Here, however, objection was made prior to the reading of the indictment. Reversal is...
To continue reading
Request your trial
-
Smith v. State
...nor did he object to its submission. See generally, Frausto v. State, 642 S.W.2d 506, 507 (Tex.Crim.App.1982); Heredia v. State, 508 S.W.2d 629, 630 (Tex.Crim.App.1974); Cox v. State, 422 S.W.2d 929, 930 (Tex.Crim.App.1968). In fact, appellant stipulated that he was the same person who comm......
-
Lombard v. Lynaugh
...Lombard's prior convictions (see note 7, supra ); and (2) the improper admission of the extraneous armed robbery. In Heredia v. State, 508 S.W.2d 629 (Tex.Crim.App.1974), the Texas Court of Criminal Appeals found that reversal of a conviction is required where the trial court permits the ju......
-
McGee v. State
...that the defendant is a convicted felon. Violation of the mandatory provisions of art. 36.01 is reversible error. Heredia v. State, 508 S.W.2d 629 (Tex.Crim.App.1974). Justice Teague of the Texas Court of Criminal Appeals in Frausto v. State, 642 S.W.2d 506 (Tex.Crim.App.1982), made some in......
-
Marks v. Estelle, 81-1323
...under the Texas contemporaneous objection rule. See, e.g., Thomas v. Estelle, 587 F.2d 695, 698 (5th Cir. 1979); Heredia v. State, 508 S.W.2d 629, 630 (Tex.Cr.App.1974). And this waiver makes Marks's claim unreviewable in a habeas proceeding unless he demonstrates "good cause" for the failu......
-
DWI Defense
...(rather than enhancement of the offense for jurisdictional purposes) are not presented during the guilt phase. [ Heredia v. State , 508 S.W.2d 629 (Tex. Crim. App. 1974) (reversal of drug possession conviction was required where prosecutor had read to the jury a portion of the indictment al......