Howard v. State, 42391

• Decision Date: 21 January 1970
• Docket Number: No. 42391,42391
• Citation: 453 S.W.2d 150
• Parties: Gary Lee HOWARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 150

453 S.W.2d 150

Gary Lee HOWARD, Appellant, v. The STATE of Texas, Appellee.

No. 42391.

Court of Criminal Appeals of Texas.

Jan. 21, 1970.

Rehearing Denied March 11, 1970.

Pat McDowell, Dallas (on appeal only), for appellant.

Henry Wade, Dist. Atty., John B. Tolle, Camille Elliott and James P. Finstrom, Asst. Dist. Attys., Dallas and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is robbery by assault with a prior non-capital conviction alleged for enhancement under Article 62, Vernon's Ann.P.C.; the punishment, life.

Appellant's first ground of error is that the evidence is insufficient to support the second paragraph in the indictment which alleged a 1963 conviction for burglary. When the indictment, judgment, and sentence were introduced, no objection was interposed. No issue was made in the trial court as to appellant being the same Gary Lee Howard who had been convicted in said cause.

His first ground of error is overruled.

As in Denham v. State, Tex.Cr.App., 428 S.W.2d 814, we again overrule appellant's contention that copies of such instruments should have been served upon him in advance of trial by virtue of the terms of Article 3731a, Section 3, Vernon's Ann.Civ.St.

Two witnesses positively identified appellant as the perpetrator of the robbery, and we overrule his contention that the evidence is insufficient to support the conviction.

We further overrule his contention that his constitutional rights were violated when he was taken to the sheriff's office and his fingerprints were taken following a lawful arrest.

His next ground of error is that the court committed fundamental error in permitting the state to prove at the punishment hearing that appellant had been convicted in cases other than those alleged for enhancement. We adhere to our holding in Smith v. State, Tex.Cr.App., 439 S.W.2d 834, which is contrary to appellant's contention.

He next contends that the pistol, which was in open view on a table twelve to eighteen inches from appellant's head, where he was asleep as the officers entered the room in response to a male voice which said 'come in' when they knocked, was inadmissible. This did not constitute a search and even if it had been, the pistol would have been admissible under the holding in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

The arresting officers had seen a warrant for appellant's arrest on their superior's desk prior to the arrest though they did not have the warrant with them. They informed appellant that they were arresting him for robbery. This is a substantial compliance with the terms of Article 15.26, Vernon's Ann.C.C.P.

Finding no reversible error, the judgment is affirmed.

WOODLEY, P.J., and ONION, J., concur in the result.

ONION, Judge (concurring).

I concur in the result reached by Judge Morrison's opinion, but feel compelled to clarify my position.

Initially, appellant claims the State failed to prove he was previously convicted as alleged in the indictment. The State offered the authenticated prison records of the appellant from the Texas Department of Corrections including certified copies of the judgment and sentence, as well as a photograph and a set of fingerprints. A certified copy of the indictment was also introduced and a fingerprint expert testified the fingerprints included in the prison records were the same as ones recently taken from appellant. This method of proof has been consistently upheld by this Court. Graham v. State, Tex.Cr.App., 422 S.W.2d 922; Broussard v. State, Tex.Cr.App., 363 S.W.2d 143; 1 Branch's Ann.P.C., 2nd ed., p. 684, Sec. 699.

I am fearful that the majority opinion leaves the impression that where no objection is interposed the State has sustained its burden of proof as to the prior conviction alleged by merely offering the indictment, judgment and sentence. This is not the law. Proof must be offered to show the accused is the same person so previously convicted.

In his second ground of error, appellant complains of the use of certified copies of prison records concerning a number of prior convictions...