McClain v. State

• Decision Date: 20 February 1974
• Docket Number: No. 47527,47527
• Citation: 505 S.W.2d 825
• Parties: James Melvin McCLAIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 825

505 S.W.2d 825

James Melvin McCLAIN, Appellant, v. The STATE of Texas, Appellee.

No. 47527.

Court of Criminal Appeals of Texas.

Feb. 20, 1974.

Rehearing Denied March 13, 1974.

Curtis Marvin Loveless, George Hopkins (on appeal only), Denton, for appellant.

John Lawhon, Dist. Atty. and michael W. George, Asst. Dist. Atty., Denton, Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The conviction is for the felony offense of shoplifting; the punishment, enhanced under the provisions of Article 63, Vernon's Ann.P.C., life imprisonment.

The appellant presents three grounds of error. The first two are related and challenge the sufficiency of the enhancement allegations of the indictment.

The primary offense of shoplifting alleged in the first paragraph of the indictment is alleged to have been committed in Denton County on March 10, 1972. The second paragraph alleges a conviction for the offense of burglary of a coin-operated machine on October 15, 1964, in Wichita County in Cause No. 12,573A. The fifth paragraph alleges a conviction for the offense of burglary on May 1, 1953, in Tarrant County in Cause No. 52,833. Paragraphs three, four and six allege other non-capital felony offenses but the State relied upon the allegations in paragraph two and five and they were the only two paragraphs alleging prior convictions which were read to the jury at the punishment stage of the trial. The allegations in each paragraph allege that the commission of and final conviction for that offense were prior to the commission of the offense alleged in the preceding paragraphs. Stated in another way, each succeeding conviction is alleged to be subsequent in point of time both to the commission of the previous offense and the conviction therefor. See Guilliams v. State, 261 S.W.2d 598 (Tex.Cr.App.1953).

The appellant's complaint is that 'the indictment did not affirmatively allege the prior convictions were to be used for purposes of enhancing the punishment against the defendant and therefore fail to allege an essential element necessary to enhance the punishment rendered against him,' and that because of this alleged deficiency in the pleadings the trial court erred in permitting the State to read these paragraphs to the jury.

The appellant relies upon and cites Rogers v. State, 325 S.W.2d 697 (Tex.Cr.App.1959) and Parasco v. State, 309 S.W.2d 465 (Tex.Cr.App.1958) as authority for his argument that an indictment must directly state that the prior convictions are alleged for enhancement purposes. These authorities do not support the appellant's argument.

The indictment in Rogers v. State, supra, had two counts. One count alleged forgery and contained paragraphs alleging two prior convictions. The other count alleged the passing of a forged instrument but did not contain paragraphs alleging prior convictions. The forgery count was not submitted to the jury. The passing count was submitted to the jury and a life sentence was assessed. The judgment of conviction was reversed because the passing count did not contain allegations that the prior offenses were committed and final convictions obtained before the commission of the primary offense of passing the forged instruments. Rogers is clearly distinguishable from this case which has only one count properly alleging five prior convictions.

Parasco v. State, supra, is also distinguishable. There the prosecution was under the provisions of the Uniform Drug Act, Article 725b, V.A.P.C., not Article 63, V.A.P.C. The indictment alleged in the first count that the appellant possessed isonipeciane and there was no allegation that the appellant had been previously convicted for violating the Uniform Drug Act that was tied to that count. The second count of the indictment in Parasco charged a different offense than possession of isonipeciane and alleged a prior conviction for possession of heroin. The latter...