Mayo v. State
| Decision Date | 15 December 1982 |
| Docket Number | No. 321-82,321-82 |
| Citation | 677 S.W.2d 30 |
| Parties | Randy Dale MAYO, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Bill Pemberton, Joe Weis, Greenville, for appellant.
F. Duncan Thomas, Dist. Atty. and Steven Watkins, Asst. Dist. Atty., Greenville, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of kidnapping and assessed punishment by the jury at 10 years. The Court of Appeals affirmed. We granted petition for review to consider whether the Court of Appeals improperly found harmless error in the admission of evidence of a void conviction.
Appellant asserts that since the prior conviction was based upon a void information, 1 it was reversible error to allow the prior conviction in evidence before the jury at the punishment stage of the trial. The verdict reflects that the allegation of the prior conviction, as set out in the enhancement paragraph of the indictment, was found by the jury as "Not True." The Court of Appeals determined from the finding of the jury that it could not presume that the jury considered the void prior conviction further for any purpose even though the prosecutor's argument at the punishment stage strongly emphasized the appellant's void prior conviction.
To determine whether the admission of the void prior conviction was harmless error, the court must look to the facts and circumstances of each case. Ex parte Flores, 537 S.W.2d 458 (Tex.Cr.App.1976) and cases cited therein. In the present case the record reflects on several occasions that the prosecutor at the punishment stage referred to the void prior conviction by the following:
The emphasis by the prosecutor on the void prior conviction only could have enhanced the prejudicial effect of the already permissible void prior conviction. 2 The jury assessed punishment at 10 years. This is a maximum penalty for a third degree felony. V.T.C.A., Penal Code Sec. 12.34. The punishment taken with the prosecutor's closing argument as well as the void prior conviction, even in light of a jury answer of "Not True" to the enhancement paragraph, we hold was harmful to the defendant. See Ex parte Flores, supra, and cases cited therein.
Accordingly, the judgments of the Court of Appeals and the District Court are reversed and the cause is remanded to the District Court.
Appellant was charged with kidnapping with one prior felony conviction alleged for enhancement of punishment. The jury found the appellant guilty of kidnapping, but found the allegations as to the prior felony conviction "not true." Punishment was assessed by the jury at ten (10) years' imprisonment.
On appeal the Dallas Court of Appeals affirmed. This court granted the petition for discretionary review to consider whether the Court of Appeals improperly found harmless error in the admission into evidence of a void conviction being the prior conviction alleged for enhancement of punishment.
Prior to trial appellant filed a motion to quash the enhancement portion of the indictment alleging that the prior felony conviction for forgery was void being based upon a felony information which failed to charge that the action allegedly purported to be the act of another who did not authorize such act. Such motion was overruled.
At the penalty stage of the trial the appellant again objected to the introduction of evidence of the prior conviction on the same basis, and also on the ground that the indictment alleged the prior conviction was on the basis of the indictment when in fact the conviction was obtained by virtue of a felony information. In support of this last contention, the appellant introduced the testimony of the district clerk. The State argued that the indictment could have been lost or misplaced, calling attention to several documents in the record referring to an indictment rather than an information. It did not explain why an information was in the file or the district clerk's testimony that there had been no indictment in the forgery cause. Appellant's objection was overruled.
Record evidence of the prior conviction was introduced before the jury. Appellant offered evidence there was no indictment alleging forgery but rather an information had been utilized.
The court charged the jurors on the burden of proof and instructed them that if they found the allegations in the enhancement paragraph of the indictment "true" they would assess the appellant's punishment "for any term of not more than twenty (20) years or less than two (2) years, and, in your discretion, a fine in any amount not to exceed $10,000.00. 1
The court further instructed the jurors that if they found the allegations of the enhancement paragraph of the indictment to be "not true," they were to assess appellant's punishment "for a term of years not less than two (2) nor more than ten (10) years, and in your discretion, a fine in any amount not over $5,000.00." 2
During jury argument at the penalty stage of the trial, the appellant argued that there was no evidence to show that the prior felony forgery conviction had been obtained upon the basis of an indictment as alleged, but rather upon an information. The State's position in argument was that there was enough evidence to show the forgery prosecution had been upon an indictment.
The jury returned a verdict finding the allegations as to the prior conviction "not true" and assessed punishment as a third-degree felony at 10 years' confinement in the Department of Corrections.
The mere fact that a non-capital felony conviction is obtained upon the basis of a felony information rather than an indictment, see Article 1.141, V.A.C.C.P., would not render evidence of the conviction inadmissible as a part of a defendant's prior criminal record under Article 37.07, V.A.C.C.P. Thus, the prior conviction for forgery was not inadmissible for the reason it was based upon an information.
This leaves the question of whether the forgery information was fundamentally defective because it failed to allege that the purported maker of the allegedly forged instrument did not authorize the act, which is a necessary element of the offense of forgery. Minix v. State, 579 S.W.2d 466 (Tex.Cr.App.1979) (); Landry v. State, 583 S.W.2d 620 (Tex.Cr.App.1979); Ex parte Huff, 583 S.W.2d 774 (Tex.Cr.App.1979). There can be no question that the forgery information was fundamentally defective. Further, a fundamentally defective indictment or information is subject to collateral attack. Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1976); Ex parte Valdez, 550 S.W.2d 88 (Tex.Cr.App.1977); Ex parte Charles, 582 S.W.2d 836 (Tex.Cr.App.1979).
The void conviction should not have been admitted. To determine whether the admission of this improper evidence constitutes harmful error, this court must look to the facts and circumstances of each case. Madeley v. State, 488...
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