Reed v. State

• Decision Date: 24 October 1973
• Docket Number: No. 46775,46775
• Parties: John Lane REED, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 497

500 S.W.2d 497

John Lane REED, Appellant, v. The STATE of Texas, Appellee.

No. 46775.

Court of Criminal Appeals of Texas.

Oct. 24, 1973.

Jim Tatum and Joe L. Guyton, Houston, for appellant.

Carol Vance, Dist. Atty. and James C. Brough, Asst. Dist. Atty., Houston, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for robbery by assault wherein the punishment, enhanced under Article 62, Vernon's Ann.P.C., was assessed at life by the court following a verdict of guilty.

The sufficiency of the evidence is not challenged. Suffice it to say the record reveals that appellant took $1,287.00 from Leonard Schwartz on March 30, 1972. When appellant appeared at Schwartz's place of business, he produced a pistol and made several threats which Schwartz testified placed him in fear of his life. Appellant was apprehended after a brief chase, and the arresting officer recovered the stolen money from him. At trial appellant was identified by three witnesses, including Schwartz.

In his sole ground of error, Appellant contends the trial judge erred by proceeding with the penalty stage of the trial before the court without having that portion of the indictment alleging a prior conviction for enhancement of punishment read to him and obtaining his plea thereto.

The primary offense alleged in the indictment was read to the jury at the commencement of the bifurcated trial and the appellant entered a plea of not guilty. See Article 36.01, Sec. 1, Vernon's Ann.C.C.P. Following the jury's verdict, the penalty stage of the trial was conducted before the court. Just as the court was determining if the parties were ready to proceed, appellant's counsel interrupted and requested 'a second' to see if a stipulation could be agreed upon. Thereafter, the appellant personally, his counsel and the State agreed and stipulated as to the prior conviction alleged for enhancement. Such stipulation was accepted after the court made careful inquiry of the appellant in person with regard to the stipulation.

No objection was made during the trial to the State's failure to read the balance of the indictment at the penalty stage of the trial, no motion for new trial was filed and the contention is raised for the first time by appellate brief filed in accordance with Article 40.09, Vernon's Ann.C.C.P.

Article 44.24, Vernon's Ann.C.C.P., provides that is shall be presumed on appeal that the defendant 'was arraigned' and that 'he pleaded to the indictment,' 'unless such matters were made an issue in the court below.'

It would also appear that appellant may not raise the question for the first time on appeal. See Cox v. State, 422 S.W.2d 929 (Tex.Cr.App.1968).

Had there been an objection, the problem could have been easily remedied by reintroducing the evidence, if any had been offered after the enhancement allegations of the indictment had been read, and the appellant's plea thereto entered. Trammell v. State, 445 S.W.2d 190 (Tex.Cr.App.1969); Peoples v. State, 459 S.W.2d 868 (Tex.Cr.App.1970).

Further, the record reflects almost two months prior to trial the appellant was 'duly arraigned according to law' and entered a plea of not guilty.

At the hearing on punishment, while represented by retained counsel, appellant stipulated to the truthfulness of the enhancement portion of the indictment. It would be difficult to say that he was misled as to that with which he was charged. Cf. Bevins v. State, 422 S.W.2d 180 (Tex.Cr.App.1967), and Rinehart v. State, 463 S.W.2d 216 (Tex.Cr.App.1971) (where the same contention appellant raises was passed upon).

Still further, it appears that appellant relies upon Article 36.01, Vernon's Ann.C.C.P., to support his contention. Such Article is found in the chapter in the Code of Criminal Procedure 1965 entitled 'Trial by Jury,' and such Article specifies the order of proceeding in a jury trial. The Article reads in part as follows:

'A jury being impaneled in any criminal action, the cause shall proceed in the following order:

'1. The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.

'2. . . .

'3. . . .

'8. In the event of a finding of guilty, the trial shall then proceed as set forth in Article 37.07.'

Article 37.07, Vernon's Ann.C.C.P., as amended in 1967 provided that the judge shall assess the punishment except in the three instances set forth.

There can be no question but that the enhancement portion of the indictment should be read to the jury if the punishment is to be assessed by the jury in light of Article 36.01(1), supra. See Holcombe v. State, 424 S.W.2d 635 (Tex.Cr.App.1968).

In the instant case the penalty stage of the bifurcated trial was before the court alone and we find nothing in Articles 36.01 and 37.07, Vernon's Ann.C.C.P., or any other statute which mandatorily requires the reading of the enhancement portion of the indictment to the defendant and receiving his plea, though such is the better and accepted...