Isbell v. State

Decision Date15 January 1969
Docket NumberNo. 41798,41798
Citation437 S.W.2d 270
PartiesBilly James ISBELL, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Dalton Gandy, Fort Worth (Court Appointed Attorney), for appellant.

Frank Coffey, Dist. Atty., R. J. Adcock, Ben H. Tompkins and William A. Knapp, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is felony theft enhanced by two prior non-capital convictions; the punishment, Life.

Appellant's first ground of error is that the evidence is insufficient to show that the 1961 conviction of appellant in Midland County, in cause No. 2724, was a final conviction prior to the commission by appellant in 1965 in Taylor County, in cause No. 3331--B, of the offense of Passing a Forged Instrument for which he was convicted in said year. Reliance is had upon our recent opinion in Jones v. State, Tex.Cr.App., 422 S.W.2d 183. Appellant overlooks the following quotation from his testimony on cross-examination:

'Q. (By the prosecuting attorney): Now, sir, I take it that you went to the penitentiary from Midland on the robbery case and then you got out of the penitentiary and then you committed the forgery and passing in Taylor County in Cause No. 3331--B, in which you were convicted in 1965, is that correct?

A. Yes, sir.'

Our holding in Jones v. State, supra, is not applicable and the first ground of error is overruled.

His second ground of error is that the court erred in permitting the State at the punishment hearing to read that portion of the indictment alleging the prior convictions before the court had held a hearing in the absence of the jury to determine the validity or the admissibility of such convictions. In support of his contention that such a hearing should have been conducted he relies upon a certain portion of our opinion in Holcombe v. State, Tex.Cr.App., 424 S.W.2d 635:

'We observe that upon another trial, under the provisions of Art. 36.01, C.C.P., that portion of the indictment alleging prior convictions for enhancement should not be read to the jury until the hearing on punishment provided in Art. 37.07, C.C.P. Further, at the hearing on punishment, in the event appellant elects to have the jury assess punishment such portions of the indictment should not be read or proof offered in support thereof unless and until it is first determined by the court that the prior convictions are valid and admissible in evidence. See: Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319.'

It is apparent from the opinion that the prior convictions were, as we later in Ex parte Romines, 436 S.W.2d 342, described them to be, presumptively void. The prior convictions in the case at bar are from Texas and are not presumptively void and such...

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3 cases
  • Ballinger v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 14, 1972
    ...387 S.W.2d 662; Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47; Perales v. State, 165 Tex.Cr.R. 638, 310 S.W.2d 335; Isbell v. State, Tex.Cr.App., 437 S.W.2d 270, and Barnes v. State, Tex.Cr.App., 467 S.W.2d The proof in this case shows the aggregate value of the shirts, coat and sweater ......
  • Tomlin v. State
    • United States
    • Texas Court of Criminal Appeals
    • January 14, 1987
    ...in the instant case, the defendant testified about his prior convictions in the guilt-innocence stage of the trial. In Isbell v. State, 437 S.W.2d 270 (Tex.Cr.App.1969) the defendant's testimony was held to be sufficient to establish that the offense which led to the second prior conviction......
  • Tomlin v. State, 09
    • United States
    • Texas Court of Appeals
    • August 28, 1985
    ...upon an offense committed after he was convicted in Cause No. 60216 and following his release from prison thereunder. Isbell v. State, 437 S.W.2d 270 (Tex.Crim.App.1969). The evidence further shows that the conviction under Cause No. 63783 was final prior to the commission of the offense fo......

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