Platter v. State

• Decision Date: 14 May 1980
• Docket Number: No. 3,No. 59570,59570,3
• Citation: 600 S.W.2d 803
• Parties: O. D. PLATTER, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 803

600 S.W.2d 803

O. D. PLATTER, Appellant, v. The STATE of Texas, Appellee.

No. 59570.

Court of Criminal Appeals of Texas, Panel No. 3.

May 14, 1980.

As Corrected On Rehearing Denied July 16, 1980.

Thomas C. Railsback and Ben Henderson, Dallas, for appellant.

Henry M. Wade, Dist. Atty., John H. Hagler, Michael R. Gillett and James G. Walker, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before PHILLIPS, TOM G. DAVIS and DALLY, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the felony offense of failure to remain at the scene of a motor vehicle accident and give required information. Article 6701d, §§ 38 and 40, V.A.C.S. Punishment was assessed at imprisonment for three years.

Appellant raises eight grounds of error. We affirm.

In his first ground of error, appellant contends that the trial court erred in denying his motion to quash the indictment. Appellant claims that the indictment unlawfully enhanced an offense for which a specific penalty applies.

The penalty provision for the offense of failure to remain at the scene of a motor vehicle accident and give required information is found in Article 6701d, § 38(b), V.A.C.S., and provides as follows:

Any person failing to stop or to comply with said requirements under such circumstances shall upon conviction be punished by imprisonment in the penitentiary not to exceed five (5) years or in jail not exceeding one (1) year or by fine not exceeding Five Thousand ($5,000.00) Dollars, or by both such fine and imprisonment.

V.T.C.A. Penal Code, § 1.03(b) provides in part that Titles 1-3 of the Penal Code "apply to offenses defined by other laws, unless the statute defining the offense provides otherwise." The statute defining the offense of failure to remain at the scene of a motor vehicle accident and give required information does not provide otherwise with respect to enhancement. This statute has its own penalty provision, but it does not speak to the question of enhancement. Under V.T.C.A. Penal Code, § 12.41(1), the offense of failure to remain at the scene of a motor vehicle accident and give required information is classified as a felony of the third degree. V.T.C.A. Penal Code, § 12.42, which pertains to enhancement and is found in Title 3 of the Penal Code, applies to the offense of failure to remain at the scene of a motor vehicle accident and give required information. See Young v. State, 552 S.W.2d 441 (Tex.Cr.App.1977). We therefore conclude that it was not improper to enhance this offense, and the trial court did not err in refusing to quash the indictment.

Appellant's reliance on Edwards v. State, 166 Tex.Cr.R. 301, 313 S.W.2d 618 (1958) is misplaced. In that case the statute under consideration provided that "for each and every subsequent such violation" the person convicted shall be punished by a specific penalty. The statute in the present case does not contain such a provision. Edwards, supra, clearly is distinguishable. Appellant's first ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred in refusing to quash the indictment because the two convictions alleged for enhancement had relied on a void judgment. Both enhancement paragraphs alleged the felony offense of driving a motor vehicle while intoxicated on a public highway. See Article 6701l-(2), V.A.C.S. These two felony convictions relied on the conviction in Cause No. 6505-B for the misdemeanor offense of driving a motor vehicle while intoxicated on a public highway. See Article 6701l-(1), V.A.C.S. Appellant contends that the judgment in the misdemeanor case is void, which in turn renders void the two felony convictions that relied on that judgment.

Appellant argues that the judgment in Cause No. 6505-B is void because it recites that he was convicted of "driving while intoxicated," which is not an offense under the laws of Texas. See Keding v. State, 140 Tex.Cr.R. 299, 144 S.W.2d 1104 (1940); Herring v. State, 117 Tex.Cr.R. 211, 35 S.W.2d 737 (1930). Although the information in Cause No. 6505-B correctly alleges the offense, appellant contends that the judgment and information cannot be read together because the judgment does not refer to the information. See Skaggs v. State, 167 Tex.Cr.R. 254, 319 S.W.2d 310 (1958); Frazier v. State, 159 Tex.Cr.R. 263, 262 S.W.2d 501 (1953).

This Court has held that the judgment in a misdemeanor case is not required to describe the offense for which the defendant was adjudged guilty. Compas v. State, 451 S.W.2d 487 (Tex.Cr.App.1970); LaDuke v. State, 166 Tex.Cr.R. 160, 312 S.W.2d 242 (1958); Stephens v. State, 161 Tex.Cr.R. 407, 277 S.W.2d 911 (1955). In the present case both the judgment and the information upon which it was based were admitted into evidence, and both instruments bear the Cause No. 6505-B. The judgment was not void. Stephens, supra. Appellant's second ground of error is overruled.

In his third ground of error, appellant complains of the trial court's refusal to dismiss the indictment because of prosecutorial vindictiveness. The record reflects that after the defendant rejected the State's offer for a plea bargain, the prosecutor returned to the grand jury and obtained a new indictment that included enhancement counts. The record further reflects that during plea negotiations the prosecutor told defense counsel that if the defendant refused to plead guilty the prosecutor would seek a new indictment that included enhancement counts. Appellant contends that the prosecutor's conduct was vindictive and therefore improper. The question raised by appellant was presented to the Supreme Court in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 357, 54 L.Ed.2d 604 (1978), and the Court answered the question adverse to appellant's contention. This ground of error is overruled.

In his fourth ground of error, appellant contends that the trial court erred in overruling his motion to suppress the two felony convictions...