Murphy v. State
| Decision Date | 16 May 1985 |
| Docket Number | No. 2-84-079-CR,2-84-079-CR |
| Citation | 689 S.W.2d 341 |
| Parties | Dwight Ardell MURPHY, Appellant, v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Bruder and Cooper and J. Stephen Cooper, Dallas, for appellant.
John D. Nation, Asst. Dist. Atty., Dallas, for appellee.
Before ASHWORTH and JOE SPURLOCK, II, JJ., and W.A. HUGHES, Jr., J. (Retired) (Sitting by Assignment).
Appellant was convicted of burglary of a habitation, TEX.PENAL CODE ANN. sec. 30.02 (Vernon 1974), and after finding enhancement the jury sentenced him to thirty-five years confinement.
Judgment affirmed.
Appellant's one ground of error alleges that the evidence was insufficient to prove a prior final conviction as alleged in the enhancement paragraph of the indictment. The indictment alleged that a prior robbery conviction became final on September 2, 1982. The evidence to prove such conviction consisted of State's exhibit no. 27, a pen packet. The gist of appellant's argument is that the evidence presented by the State shows that appellant was convicted of robbery on July 1, 1981, not on September 2, 1982, as alleged in the indictment.
Included in the pen packet is a "judgment and sentence", dated July 1, 1981, which recites that the appellant pled guilty to robbery, a second degree felony, and was sentenced to seven years confinement; also included is an "order revoking probation" dated September 2, 1982, which bears the same case number as reflected in the "judgment and sentence." The "order revoking probation" recites that appellant was convicted of robbery, a second degree felony as charged in the indictment, and sentenced to seven years confinement and placed on probation, and that the probation is revoked and that the sentence is reduced from seven years confinement to four years confinement.
It is true, as appellant contends, that the "judgment and sentence" makes no provision with regard to probation, and looking at that instrument only, one would reasonably conclude that appellant was sentenced to seven years confinement on July 1, 1981 for the offense of robbery. It is also true that immediately following that particular instrument is another designated "order revoking probation," bearing the same case number as that of the "judgment and sentence" stating that appellant had been placed on probation in that particular case and that his probation was revoked effective September 2, 1982.
The "judgment and sentence" and "order...
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U.S. v. Morales
...that under Texas law his conviction was not final for purposes of enhancement because of the probated sentence. See Murphy v. State, 689 S.W.2d 341 (Tex.Crim.App.1985); Davis v. Estelle, 529 F.2d 437 (5th Cir.1976). The trial court overruled the objection, observing in passing that the conv......
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State v. Molette
...in Texas is placed on probation, the conviction becomes final only when the probation is revoked and a sentence imposed. Murphy v. State, 689 S.W.2d 341 (Tex.App.1985). Because defendant's probation was never revoked, no sentence was ever imposed. Defendant acknowledges that, as it now exis......
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Cunningham v. State
...Todd v. State, 598 S.W.2d 286 (Tex.Crim.App.1980); Mead v. State, 759 S.W.2d 437 (Tex.App.--Fort Worth 1988); and Murphy v. State, 689 S.W.2d 341 (Tex.App.--Fort Worth 1985). ...
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Rodgers v. State, 2-86-280-CR
...as to the offense used as enhancement of the present charge, and therefore, the judgment was not final. The State compares Murphy v. State, 689 S.W.2d 341, 342 (Tex.App.--Fort Worth 1985, no pet.) with the present case, alleging appellant failed to show he was properly granted shock probati......