Hill v. State

• Decision Date: 04 March 1953
• Docket Number: No. 26140,26140
• Parties: HILL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 93

256 S.W.2d 93

158 Tex.Crim. 313

HILL v. STATE.

No. 26140.

Court of Criminal Appeals of Texas.

March 4, 1953.

Jones, Herring & Jones, Austin, for appellant.

Bob Long, Dist. Atty., Fred B. Werkenthin, Asst. Dist. Atty., George P. Blackburn, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is driving while intoxicated, as a second offender; the punishment, two years.

In view of our disposition of this case, a recitation of the facts is not deemed necessary.

Bill of exception No. 1 complains of the overruling of appellant's motion to quash the indictment. A brief recitation of the chronology of events is necessary in order to understand the contention raised in the motion.

1. Appellant was convicted in the County Court of Travis County in 1947 for the misdemeanor offense of driving while intoxicated.

2. Appellant was convicted in the District Court of Travis County in 1949 for the felony offense of driving while intoxicated, the 1947 misdemeanor conviction being plead to make the offense a felony and to confer jurisdiction on the District Court.

3. After having served this term in the penitentiary, the appellant was again indicted in 1952 for the felony offense of driving while intoxicated; and again the same 1947 misdemeanor conviction was alleged in order to make the offense a felony and to confer jurisdiction on the District Court.

Appellant's contention is that the rule in Kinney v. State, Tex.Crim.App., 79 S.W. 570, would prevent the re-use of the 1947 misdemeanor, since it had successfully been used in the 1949 felony conviction.

This Court has not held the rule in the Kinney case applies to Article 802b, Vernon's Ann.P.C., and we do not now feel inclined to so hold. To the contrary, we have held in Broughton v. State, 148 Tex.Cr.R. 445, 188 S.W.2d 393, and Clifton v. State, Tex.Cr.App., 246 S.W.2d 201, that said article is not an enhancement of punishment statute but creates a new and independent crime of the grade of felony, an essential element of which is that the person charged has previously been convicted of a misdemeanor offense of driving while intoxicated. The additional allegation of the prior misdemeanor conviction thus vests the District Court with jurisdiction. It is only in cases arising under Articles 61-64, Vernon's Ann.P.C., that the rule in the Kinney case, and those which follow it, apply. We hold that the prior use of the misdemeanor conviction does not prevent its subsequent re-use for the same purpose and that such subsequent re-use does not violate the constitutional prohibition against placing an accused twice in jeopardy. This Court, as now constituted, is not inclined to extend the rule in the Kinney case, supra.

Appellant's bill of exception No. 2 relates to another motion to quash, predicated upon the assumption that, prior to the amendment of Article 802b, P.C., in 1951, a prior misdemeanor conviction might be successfully used only once in charging the felony offense of driving while intoxicated. This Court has not so held, and, therefore, appellant's contention as to the ex post facto effect of the 1951 amendment passes out of consideration.

Bill of exception No. 3 asserts that the 1951 amendment changes the punishment prescribed by the 1941 act and contends that, since the punishment was different when appellant committed the 1947 offense, a conviction under the 1951 amendment, in which a 1947 offense was alleged in order to give the court jurisdiction, would be giving ex post facto effect to the 1951 amendment.

Appellant cites from Thacker v. Commonwealth, 228 Ky. 819, 16 S.W.2d 448, 449:

'Our opinions so holding, and which are in complete accord with those from other jurisdictions upon the subject, are based upon the proposition that it is incompetent for the Legislature to provide for an increased punishment for a second conviction, when the first offense of which defendant was convicted was committed before the enactment of the statute so prescribing.'

We now analyze the two acts:

That portion of the 1941 act which prescribes the punishment reads as follows:

'* * * shall be guilty of a felony and upon conviction be punished by confinement in the penitentiary for any term of years not less than one (1) nor more than five (5).'

That portion of the 1951 amendment which prescribes the punishment reads as follows:

'* * * be guilty of a felony; and upon conviction shall be punished by a fine of not less than One Hundred ($100.00) Dollars nor more than Five Thousand ($5,000.00) Dollars or confinement in the county jail not less than ten (10) days nor more than two (2) years, or by both such fine and imprisonment, or by confinement in the state penitentiary not to exceed five (5) years.'

If the punishment provided by the 1951 amendment had been materially increased, we would be inclined to agree with appellant's contention. But we do not so construe the change. Between 1941 and 1951, all citizens were charged with the knowledge that if they violated the driving while intoxicated statute, they would receive certain misdemeanor punishment on their first conviction, and on the second they might be assured of a stay in the penitentiary if convicted.

Since 1951, no such warning or assurance exists. All citizens are now charged with the knowledge that on a second conviction they may go to the penitenitary or they may be treated more leniently and receive only a fine or jail sentence.

This we feel to be the only logical interpretation to be given to the rule expressed in the Thacker case and, accordingly, overrule appellant's contention in this respect.

Bill of exception No. 7 registers appellant's objection to the introduction into evidence of the results of the Harger breath test for alcohol on the grounds that such called for expert testimony and that the witness was not an expert.

Appellant's counsel admitted that the witness Barnett was competent to give the test, but stoutly questioned his ability to calculate and translate for the jury the reading from the machine into terms of the alcohol content of the blood. He points out that, in order to do this, the witness had to rely upon a chart sent with the machine, and which he did not understand. His contention was that the use of such a chart by the witness, who could not explain the same, constituted hearsay evidence. He further objected on the grounds that the machine was not shown to have been under the supervision...