Johnson v. State, 25965
| Decision Date | 19 November 1952 |
| Docket Number | No. 25965,25965 |
| Citation | 253 S.W.2d 1006,158 Tex.Crim. 154 |
| Parties | JOHNSON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Russell Dunn and Dean Martin, Sherman, Harry E. Kain, Denison, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
The offense is burglary, with three prior convictions alleged to enhance the punishment; the punishment, life.
Appellant's primary grounds for reversal lie in his contention that two of the three prior convictions alleged in the instant indictment had already been used by the State for the purpose of enhancing the punishment in another habitual criminal case and, therefore, might not again be used in the case at bar.
An excellent brief raises this interesting question, and we must review the history of this appellant's criminal record and analyze our former holdings in order to solve the question here presented.
The grand jury of the District Court of Grayson County, at its January term, 1950, returned an habitual criminal indictment against this appellant, alleging as the primary offense a burglary charged to have been committed on the 3rd of February, 1950. Three prior convictions in the District Courts of Grayson County were alleged therein in order to enhance the punishment. The conviction on this indictment was appealed to this Court, and on December 20, 1950, the same was reversed because of the failure of the State to corroborate the testimony of the accomplice. Johnson v. State, Tex.Cr.App., 235 S.W.2d 180.
The grand jury of Grayson County, at its July term, 1951, returned another habitual criminal indictment against this appellant, which is the case now before us. The primary offense therein charged was a burglary alleged to have occurred on July 14, 1951. Two of the prior offenses alleged were the same as those alleged in the foregoing case. Johnson v. State, supra.
At the time the proof of these prior offenses was offered, appellant objected on the grounds that there was then pending on the docket of said court the indictment in the previous case against him. Such objection was overruled, and the proof was made.
Appellant contends that the case at bar is controlled by our holding in two cases. Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177, and Id., 140 Tex.Cr.R. 351, 145 S.W.2d 179.
In order to understand the Gooden cases, it is necessary to keep in mind the sequence of events therein shown.
Both cases came from the District Court of Montgomery County. Both were habitual criminal indictments. Each alleged a different primary offense, and each alleged the same prior convictions. The first case was tried in April, and the second case was tried in May, of 1940. Gooden was sentenced to life imprisonment in each case.
Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177, was reversed, because the trial court erred in his charge to the jury.
Gooden v. State, 140 Tex.Cr.R. 351, 145 S.W.2d 179, was reversed, because the prior convictions alleged therein had been employed to enhance the punishment in Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177. It is obvious from this statement of chronology that we had there a case where the appellant had been successfully prosecuted in the first case; and while that case was on appeal, the trial court proceeded to try him again as an habitual criminal, using the same prior convictions to enhance the punishment.
We held that the prior convictions could not be used twice to enhance the punishment.
The word 'successfully' was not used in the opinion, but when this question was again discussed in Sigler v. State, 143 Tex.Cr.R. 220, 157 S.W.2d 903, we had occasion to draw this distinction. In the Sigler case, supra, the contention was raised that the prior convictions could not again be used in a Gregg County trial held in 1941, because they had unsuccessfully been used in a trial in Bexar County in 1939.
The Bexar County case was tried in September, 1939, and was reversed by this Court on April 24, 1940. Sigler v. State, 139 Tex.Cr.R. 167, 139 S.W.2d 277. Under the indictment and the trial court's charge in that case, had the jury accepted the proof of the prior convictions, they would have assessed his punishment at confinement for life. This, they did not do, but assessed his punishment of ten years upon a finding of guilt of the primary offense only. The Bexar County case was reversed by this Court because of the receipt in evidence of an involuntary...
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Shivers v. State
...Hence, the prior conviction used here had not previously been used successfully to secure a life sentence. Johnson v. State, 158 Tex.Cr.R. 154, 253 S.W.2d 1006. Thus, the proposal to abandon the long-standing rule upon which appellant attempts to rely is not even necessary for the affirmanc......
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Haines v. State, 61079
...where used in the same or a different prior "habitual" cause, it must have been used "successfully." E. g., Johnson v. State, 158 Tex.Cr.R. 154, 253 S.W.2d 1006, 1007-8 (1953); 2 Ex parte Shivers, 501 S.W.2d 898, 902 (Tex.Cr.App.1973). Of course, what we say today applies only to those caus......
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