Johnson v. State
| Citation | 436 S.W.2d 906 |
| Decision Date | 18 December 1968 |
| Docket Number | No. 41590,41590 |
| Parties | Martin Aubrey JOHNSON and Billy James White, Appellants, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Chas. F. Potter, Tyler, for appellants.
Hunter B. Brush, Dist. Atty., William H. Power, Asst. Dist. Atty., Tyler, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is robbery; the punishment, life.
Appellants were jointly indicted with one Joseph Bernell Sawyer III for the offense of robbery with firearms, a capital felony.
The second paragraph of the indictment returned November 9, 1967, alleged that Billy James White had been previously convicted of felony theft, a felony less than capital, and one of like character as that alleged against him in the first paragraph of the indictment.
The third paragraph alleged that prior to the commission of each of said offenses White was convicted of burglary to commit theft, a felony less than capital, and one of like character as that alleged against him in the first paragraph of the indictment.
The fourth paragraph alleged a prior conviction of Martin Aubrey Johnson for nighttime burglary of a private residence with intent to commit theft, a felony less than capital and one of like character as alleged against him in the first paragraph.
The co-indictee Sawyer, who had no prior conviction, pleaded guilty at a separate trial and was assessed a term of ten years in the Texas Department of Corrections.
The case against appellants came on for trial on November 17, 1967, without the state having given notice that it would seek the death penalty.
The first ground of error complains that the trial court erred in permitting the state to amend the indictment by deleting the phrase 'and by then and there using and exhibiting a firearm, to-wit, a shotgun.' under all the circumstances of the case.
The general rule is that state's counsel may, with the consent of the court, when the case is called for trial or during the trial, dismiss or abandon that portion of the indictment which charges the use or exhibition of a firearm or deadly weapon. 5 Branch's Ann.P.C.2d 16, Sec. 2570, and cases cited.
The circumstances relied on by appellants are that the court overruled their motion to delete the paragraphs of the indictment alleging prior convictions for felonies less than capital, which were not available to enhance the punishment for the offense alleged in paragraph one of the indictment because robbery with firearms is a capital felony. Arts. 62 and 63 Vernon's Ann.P.C.; Urtado v. State, 167 Tex.Cr.R. 318, 319 S.W.2d 711; Couch v. State, 155 Tex.Cr.R. 585, 238 S.W.2d 198; Meador v. State, 161 Tex.Cr.R. 183, 275 S.W.2d 657.
The state's motion granted by the court makes it clear that the purpose of the motion was that the court 'allow the State to elect to stand upon all the remaining portions of the indictment, which in the first paragraph thereof would then contain allegations of robbery by assault, and by violence and by putting in fear, and which in its remaining paragraphs would then remain unchanged and would contain allegations of certain prior convictions of certain of the above named defendants.'
As a result of the granting of the state's motion and the overruling of the motion of the appellants, the prior conviction of appellant Martin Aubrey Johnson, which could not be used to enhance punishment in the capital felony alleged in the indictment, was used to enhance his punishment for the non-capital felony offense of robbery by assault to life imprisonment (Art. 62 P.C.), a punishment not applicable to the capital offense alleged in the indictment. (Art. 1408 P.C.)
As to appellant White, his prior convictions, which were not available to enhance punishment in the capital felony case, were used to enhance his punishment for the non-capital offense of robbery to life imprisonment. (Art. 63 or Art. 62 P.C.)
Also, as a result of the court's rulings the appellants were deprived of the benefit of the indeterminate sentence law.
Also, the death penalty having been waived, the applicable punishment was changed by the deletion from 'confinement in the penitentiary for any term not less than five years,' (Robbery with firearms) to 'confinement in the penitentiary for life or for a term of not less than five years.' (Robbery by assault) See Art. 1408 V.A.P.C.
Appellants had good reason to complain that they were prejudiced by the deletion from the indictment of the allegation as to the use of firearms, leaving the allegations as to prior convictions unchanged.
Another ground for reversal is the overruling of appellants' motion to submit the case to the jury for assessment of the punishment and the holding of the trial court that such request came too late, the contention being that such rulings deprived ...
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