Miracle v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: ONION; ROBERTS
• Citation: Miracle v. State, 604 S.W.2d 120 (Tex. Crim. App. 1980)
• Decision Date: 04 June 1980
• Docket Number: No. 63931,No. 1,63931,1
• Parties: Billy Wayne MIRACLE, Appellant, v. The STATE of Texas, Appellee

Page 120

604 S.W.2d 120

Billy Wayne MIRACLE, Appellant, v. The STATE of Texas, Appellee.

No. 63931.

Court of Criminal Appeals of Texas, Panel No. 1.

June 4, 1980.

Rehearing Denied Sept. 10, 1980.

Doyle Mallett, Amarillo, on appeal only, for appellant.

Thomas A. Curtis, Dist. Atty., Steve Schiwetz and Thomas S. Hughes, Asst. Dist. Attys., Amarillo, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and DALLY, JJ.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for robbery by assault under the former Penal Code (Article 1408, V.A.P.C., 1925). One prior felony conviction was alleged for enhancement of punishment. Appellant entered a guilty plea to the robbery and a plea of "true" to the enhancement portion of the indictment before a jury. He elected to be punished under the 1974 Penal Code (Acts 1973, 63rd Leg., p. 883, ch. 399, § 6(c)). The jury assessed punishment at fifty (50) years' imprisonment.

On appeal appellant contends the trial court erred in failing to grant his motion to quash the indictment because he was "placed . . . in jeopardy of an indictment carrying a potentially greater punishment than 5 years to 99 years imprisonment, that the court erred in limiting the jury's consideration to a range of punishment of not less than 5 nor more than 99 years confinement, that the court erred in refusing to permit testimony before the jury concerning a stroke he suffered, and that the prosecutor engaged in improper jury argument."

Appellant filed a pre-trial motion to set aside the instant indictment because of a federal district court order that if the appellant be re-tried such retrial be "under an indictment which does not carry a potentially greater punishment than 5 years to 99 years imprisonment . . . ." Appellant moved to dismiss the instant indictment because the penalty under Article 1408, V.A.P.C., 1925, was greater than that. The federal court order was not attached. At the hearing on the motion, no evidence was offered in support thereof. The motion was overruled with the judge stating he would submit the range of punishment to the jury as being from 5 to 99 years' imprisonment.

In his brief, appellant asserts that the instant indictment carried the possibility of a greater penalty than 99 years when only the primary offense is considered under Article 1408, V.A.P.C., 1925, and that when the allegation of a prior conviction for felony theft is considered there was even a possibility for an automatic life sentence under Article 62, V.A.P.C., 1925; Thompson v. State, 170 Tex.Cr.R. 258, 339 S.W.2d 209 (1960). He argues by citing Miracle v. Estelle, 592 F.2d 1269 (5th Cir. 1979), and mentioning a later federal district court order that he was entitled to a retrial under an indictment which did not carry a potentially greater punishment than 5 to 99 years' imprisonment. This is all we are offered in appellant's brief.

From the oral argument before this court, statements in the State's brief, etc., we piece together this background of appellant's contention.

From these pieces it appears appellant was indicted on May 23, 1974 for robbery by assault under former Article 1408, V.A.P.C., 1925, for an offense committed in 1972 with one prior felony conviction alleged for enhancement of punishment. See Article 62, V.A.P.C., 1925. While this indictment was pending, a second indictment was returned in another district court of Potter County charging appellant with robbery by assault with a firearm with two prior non-capital felony convictions alleged for enhancement. Supposedly the primary offenses in both indictments were the same. The appellant was placed on trial on the first indictment. Having chosen to be punished under the 1974 Penal Code then in effect although convicted of a former Code offense, the appellant was assessed a penalty of 99 years' confinement by the jury. A new trial, however, was granted because of jury misconduct. The appellant was then put to trial on the second indictment mentioned above. Appellant again elected to be punished under the provisions of the 1974 Penal Code. Appellant was convicted and assessed life imprisonment. He appealed and his conviction was affirmed in a per curiam opinion by this court. After exhausting his state's remedies, appellant sought federal habeas corpus relief on the ground that he had been assessed a greater penalty after he had successfully sought a new trial after his first conviction. The federal district court denied relief, but on appeal the Fifth Circuit Court of Appeals granted relief holding there was prosecutorial vindictiveness in trying the appellant on the second indictment and securing a greater punishment after he successfully obtained a new trial following conviction on the first indictment. Another federal district court order followed after the decision of the federal appellate court became final. Appellant was indicted for the third time for supposedly the same primary offense, the indictment alleging the non-capital offense of robbery by assault with one prior non-capital offense alleged for enhancement. It was to this indictment the appellant directed his motion to quash.

Not much of the above is substantiated by this record. Allegations in a motion to quash or set aside an indictment do not prove themselves. Assertions in briefs and oral argument not supported by the record cannot be considered as evidence before this court. As noted earlier, the motion to set aside the instant indictment mentioned the last federal district court order, but it was not attached thereto or introduced at the hearing on the motion. In fact, no evidence was introduced. At such hearing there was no indictment or judgment of the first conviction introduced, no evidence of the second conviction offered. There is no way to tell from this appellate record whether the primary offense charged in the first and second indictments is the primary offense charged in the instant indictment, and without the federal district court order we cannot conclude that the trial court erred in overruling the motion to set aside the instant indictment on the basis urged.

If we were to look to the appellate record on appeal from the conviction on the second indictment which is not proper, ¹ to the facts stated in Miracle v. Estelle, supra, and consider the assertions in the briefs as evidence, we still do not conclude the court erred in overruling the motion to set aside the indictment.

Taking the assertions in the briefs, etc., at face value, we make the following observations. The robbery offense occurred in 1972 and was governed by the former Penal Code even though appellant was first indicted in 1974. That indictment charged him with robbery by assault, a non-capital felony under Article 1408, V.A.P.C., ² which carried a possible penalty range of life, or for a term of not less than five years. The indictment also alleged a prior felony conviction under Article 62, V.A.P.C., ³ for the enhancement of punishment, which allegation raised the possibility of punishment to automatic life when the provisions of said Articles 1408 and 62 are considered together. At the trial on the first indictment, the appellant chose to be punished under the 1974 Penal Code, which he had a right to do (Acts 1973, 63rd Leg., p. 883, ch. 399, § 6(c)). Thus, V.T.C.A., Penal Code, § 12.42(b), and § 12.32 (as enacted in 1973) and § 29.02 came into play. ⁴ Under such statutes, the punishment actually assessed by the jury was 99 years' imprisonment.

After a new trial was granted, the appellant was tried on the second indictment which had been returned subsequent to the first indictment but prior to the first trial. Such indictment charged the ordinarily capital felony offense of robbery by assault with a firearm, which under the statute (Article 1408, supra) carried a penalty of death or any term of years not less than five years. The indictment alleged two prior non-capital felony convictions apparently for enhancement of punishment. Ordinarily under the former Penal Code it was not possible to enhance punishment for a capital felony offense with allegation and proof of prior non-capital felony convictions, Bradley v. State, 456 S.W.2d 923 (Tex.Cr.App.1970), or vice versa. Meador v. State, 161 Tex.Cr.R. 183, 275 S.W.2d 657 (1955). However, at the time of the return of the second indictment and at the time of appellant's second trial, the death penalty in Texas had been declared unconstitutional by Furman v. Georgia, Jackson v. Georgia and Branch v. Texas, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and therefore robbery by assault with a firearm had become a non-capital offense. Thus the allegation of the two prior non-capital felony convictions invoked Article 63, V.A.P.C., 1925, ⁵ and raised the possibility of an automatic life sentence. At the second trial, appellant elected to be punished under the 1974 Penal Code, thus raising the possible punishment for the primary count of robbery by assault with a firearm from any term of years not less than five years under Article 1408, supra, and Furman v. Georgia, supra, to the penalty of life or any term of years not less than five nor more than 99 years, which is the penalty for aggravated robbery, a first degree felony. See V.T.C.A., Penal Code, § 12.32 and § 29.03. The possible penalty in light of the two prior convictions alleged did not change by appellant's election as V.T.C.A., Penal Code, § 12.42(a), like Article 63, V.A.P.C., 1925, calls for automatic life imprisonment.

The jury at the second trial found appellant guilty of robbery by assault with a firearm and found he had been twice previously convicted as alleged. The trial court then assessed a life sentence under the new Penal Code since the appellant had elected to be punished thereunder. The case on appeal was affirmed. On appellant's motion for rehearing this court in a per curiam opinion relied upon the...