Hollins v. State

Decision Date11 October 1978
Docket NumberNo. 55433,55433
PartiesJohnny HOLLINS, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Ralph E. Hutchmacher, Craig M. Shivers, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Keno M. Henderson, Jr., Asst. Dist. Attys., Houston, for the State.

Before ONION, P. J., and DALLY and VOLLERS, JJ.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for burglary of a building. After the jury found the enhancement paragraphs of the indictment alleging two prior felony convictions were true, the court assessed appellant's punishment at life imprisonment. See V.T.C.A., Penal Code, § 12.42(d). On appeal we are confronted with a claim as to the invalidity of the enhancement portion of the indictment and a contention that jury note-taking was improperly permitted.

I.

Initially, appellant urges the trial court "erred in failing to grant defendant's motion to quash the enhancement paragraphs of the indictment because the enhancement paragraphs were at a fatal variance with the proof."

Appellant directs our attention to two oral motions to quash urged during the trial on the merits, but neither is based on the foregoing contention. Thus, the matter urged on appeal was never presented to the trial court. Nothing is presented for review.

Further, and more importantly, we observe that if the proof failed to support the enhancement allegations the punishment could not be legally enhanced, but this would not be grounds to quash that portion of the indictment. The office of a motion to quash an indictment is normally addressed to the sufficiency of the allegations therein, and not to whether there may be or is a variance between the allegata and the probata.

II.

After reviewing and construing the argument submitted in support of the foregoing ground of error, we conclude that the stated ground of error is not the real thrust of appellant's argument. In Article 40.09, § 9, V.A.C.C.P., it is stated in part:

". . . If the defendant includes in his brief arguments supporting a particular ground of error, they shall be construed with it in determining what point of objection is sought to be presented by such ground of error; and if the court, upon consideration of such ground of error in the light of arguments made in support thereof in the brief, can identify and understand such point of objection, the same shall be reviewed notwithstanding any generality, vagueness or any other technical defect that may exist in the language employed to set forth such ground of error."

The arguments advanced in appellant's brief under this ground of error are confusing and somewhat multifarious, but the real thrust of appellant's contention is that the allegations as to the prior convictions used for enhancement did not allege the particular courts in which said convictions occurred so as to enable him to take issue thereon, and to show, if possible, there was a mistake in identity or that there was no final formal conviction or the like. We do observe that the appellant did make an oral motion to quash the enhancement portion of the indictment on this basis late in the trial on the merits. We shall therefore consider, under the mandate of Article 40.09, § 9, Supra, appellant's contention.

The enhancement paragraphs (so designated in indictment) alleged:

"Before the commission of the offenses alleged in Counts One and Two on July 23, 1951, in Cause Nos. 64148 and 64601, in Harris County, Texas, the Defendant was convicted of the felony offenses of Attempted Burglary and Theft, respectively.

"Before the commission of the offenses alleged in Counts One and Two, and after the convictions in Cause Nos. 64148 and 64601 were final, the Defendant committed the felony of Unlawfully Breaking and Entering a Motor Vehicle and was convicted on April 14, 1959, in Cause No. 86566, in Harris County, Texas."

Count No. 2 was waived and abandoned by the State, and the jury found the appellant guilty of burglary as charged in Count No. 1. At the beginning of the penalty stage of the trial, upon the motion to quash being made, the State asked to delete from the allegations of the prior convictions those concerning the attempted burglary conviction. Thereafter, the court submitted to the jury the question of whether the appellant had been previously convicted of theft and breaking and entering a motor vehicle.

It is well settled that it is not necessary to allege prior convictions for the purpose of the enhancement of punishment with the same particularity as must be used in charging the original offense. Broughton v. State, 148 Tex.Cr.R. 445, 188 S.W.2d 393 (1945); Farris v. State, 155 Tex.Cr. 261, 233 S.W.2d 856 (1950); Tucker v. State, 155 Tex.Cr.R. 304, 234 S.W.2d 877 (1950); Bailey v. State, 163 Tex.Cr.R. 459, 293 S.W.2d 649 (1956); Jones v. State, 164 Tex.Cr.R. 253, 298 S.W.2d 569 (1957); Warden v. State, 366 S.W.2d 786 (Tex.Cr.App.1963); Cooper v. State, 500 S.W.2d 837 (Tex.Cr.App.1973). See also 1 Branch's Ann.P.C., 2nd ed., § 697, p. 679.

Nevertheless, it has been held that in alleging prior convictions for enhancement definiteness and certainty are required in the State's pleadings. Papageorge v. State, 157 Tex.Cr.R. 119, 246 S.W.2d 880 (1952). This is so because an accused is entitled to proper notice of any prior conviction alleged for enhancement of punishment. Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697 (1959). In Morman v. State, 127 Tex.Cr.R. 264, 75 S.W.2d 886 (1934), this court wrote:

"The accused is entitled to a description of the judgment of former conviction that will enable him to find the record and make preparation for a trial of the question whether he is the convict named therein."

In Childress v. State, 134 Tex.Cr.R. 504, 116 S.W.2d 396 (1938), it was stated:

". . . It is true that the appellant has the right to be advised by averments in the indictment as to the records of the former convictions, and also the right to be guarded against the hazard of the use by the state on a subsequent occasion of a conviction that has theretofore been used to enhance the penalty. Childress v. State, 131 Tex.Cr.R. 487, 100 S.W.2d 102 . . . ."

In Palmer v. State, 128 Tex.Cr.R. 293, 81 S.W.2d 76, 79 (1934), this court quoted from 12 Tex.Jur.2d 795 and stated:

"This averment is necessary in order to give the accused notice that a greater penalty is to be sought than for a first offense, and to enable him to take issue thereon, and if possible show there is a mistake in identity, or that there was no final former conviction or the like."

It has been frequently held that in alleging a prior conviction for enhancement of punishment the allegations should include the court in which the conviction was obtained, the time of the conviction and the nature of the offense. Neece v. State, 62 Tex.Cr.R. 378, 137 S.W. 919 (1911); Morman v. State, supra ; Palmer v. State, supra ; Childress v. State, 131 Tex.Cr.R. 487, 100 S.W.2d 102 (1936); Walker v. State, 138 Tex.Cr.R. 230, 135 S.W.2d 498 (1940). 1

In Arce v. State, 552 S.W.2d 163 (Tex.Cr.App.1977); Prodon v. State, 555 S.W.2d 451 (Tex.Cr.App.1977); and Teamer v. State, 557 S.W.2d 110 (Tex.Cr.App.1977), the indictments, like the one in the instant case, fail to allege the district courts in which the prior convictions occurred. 2 In Arce, Prodon and Teamer there were no motions to quash and in each case it was held that the failure to so allege could not be raised for the first time on appeal as fundamental error.

In the instant case there was a motion to quash the enhancement portion of the indictment since the district courts in which the prior felony convictions occurred were not named or designated.

The enhancement allegations do describe the prior convictions as being for felony offenses, giving the nature of the offense, the case numbers of the causes in Harris County in which the convictions were obtained and the dates of such convictions. The allegations, in their own way, also state that each offense was committed after a final conviction in the preceding case. The allegations do not, however, mention the name or designation of any court. The State argues that since only the district court has jurisdiction of felonies, Article V, § 8, Texas Constitution, and all the prior convictions were alleged to have occurred in Harris County the appellant would have no difficulty in ascertaining the records of the prior convictions, particularly in light of the cause numbers given. The State calls attention to Article 199(11), V.A.C.S., as amended in 1963 which provides in part:

"In all suits, actions, or proceedings in said Courts, it shall be sufficient for the address or designation to be merely 'District Court of Harris County.' "

It appears to be the State's argument that while the above designation was not even alleged the same was clearly inferable from the allegations made.

The State notes that although appellant's counsel claimed at the time of the motion to quash he had been unable to locate the records of the prior convictions, he offered no proof of the same, and that the colloquy at the bench on an earlier motion to quash on another basis clearly indicated appellant personally was familiar with the records.

The State points out that such colloquy reveals appellant, acting as co-counsel with permission of the court, argued to the court that the prior convictions alleged had been previously used for enhancement of punishment in another case, giving the date of such trial, etc. The prosecutor responded that only one of the prior convictions alleged (Cause No. 86,566 breaking and entering a motor vehicle) had been previously used in another cause, but the conviction there obtained had to be set aside and that prior conviction thus had not been successfully used for enhancement and was available in the instant case. No proof or further argument was offered, and the court overruled...

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