Robinson v. State

• Decision Date: 16 September 1987
• Docket Number: No. 66967,66967
• Citation: 739 S.W.2d 795
• Parties: Wayne Mandlebert ROBINSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 795

739 S.W.2d 795

Wayne Mandlebert ROBINSON, Appellant, v. The STATE of Texas, Appellee.

No. 66967.

Court of Criminal Appeals of Texas En Banc.

Sept. 16, 1987.

Donald B. Kelley, Orange, for appellant.

William C. Wright, Co. Atty. & James O. Jenkins, Jr. & Stephen C. Howard, Asst. Co. Atty's., Orange, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PER CURIAM.

Appellant was convicted of aggravated kidnapping; the convicting jury found an allegation of a prior felony conviction "true" for purposes of enhancement, V.T.C.A. Penal Code, § 12.42(c), and assessed punishment at 40 years imprisonment. Appellant now complains of the denial of his motion to dismiss for alleged violation of his statutory right to speedy trial, his requested jury instruction on voluntary release at the guilt phase of trial, his motion to quash the enhancement paragraph of the indictment, and of the trial court's admission of a "pen packet" at the punishment phase of trial. ¹ We will affirm.

In his first two points of error, ² appellant contends that the trial court reversibly erred when it denied his motion to dismiss for violation of the Speedy Trial Act, Article 32A.02, V.A.C.C.P. A majority of this Court recently declared that statute unconstitutional and void in its entirety. Meshell v. State, 739 S.W.2d 246, 257 (Tex.Cr.App.1987). An unconstitutional statute is void from its inception and cannot provide a basis for any right or relief. 12 Tex.Jur.3d, Constitutional Law § 41, at 548 and cases collected in n. 33 thereof. In any event, this Court has effectively rejected the arguments now advanced by appellant. See, Carr v. State, 733 S.W.2d 149 (Tex.Cr.App.1987) (On Court's own Motion for Rehearing); Denson v. State, 733 S.W.2d 891 (Tex.Cr.App.1987) (On Appellant's Motion for Rehearing); Luedke v. State, 711 S.W.2d 657, 658-659 (Tex.Cr.App.1986); Perez v. State, 678 S.W.2d 85 (Tex.Cr.App.1984); Paris v. State, 668 S.W.2d 411 (Tex.Cr.App.1984); and, Rosebury v. State, 659 S.W.2d 655 (Tex.Cr.App.1983). Appellant's first and second points of error are overruled.

Appellant's third point of error asserts error in the trial court's refusal to grant his requested instruction on voluntary release, V.T.C.A. Penal Code, § 20.04(b), at the guilt phase of the trial. The trial court, over objection, submitted such a charge at the punishment phase.

Section 20.04(b), supra, provides that aggravated kidnapping, is reduced to a "second degree" felony if "the actor voluntarily releases the victim alive and in a safe place." It is now well settled that this subsection does not create an exception to the offense and that failure to so release the victim is not an element of aggravated kidnapping. Rather, proof of such release only mitigates punishment. Butler v. State, 645 S.W.2d 820, 822-823 (Tex.Cr.App.1983); Smith v. State, 541 S.W.2d 831, 838 (Tex.Cr.App.1976) (On State's motion for rehearing) cert. denied, 430 U.S. 937, 97 S.Ct. 1565, 51 L.Ed.2d 783 (1977). The evidence in this case raised the issue; the court did not err in refusing the charge at the guilt phase, but submitting it at the punishment phase. Cf. Wright v. State, 571 S.W.2d 24 (Tex.Cr.App.1978) (submission at punishment stage after guilty plea); Williams v. State, 718 S.W.2d 772, 773-775 (Tex.App.--Corpus Christi, 1986) no PDR. Appellant's third point of error is overruled.

In his fourth point of error appellant argues that the trial court's denial of his "motion to quash the enhancement allegation in the indictment for reasons that the conviction was void as a matter of law" was error.

A.

The indictment alleges that appellant was convicted in Criminal Judicial District Court of Jefferson County on August 20, 1974 of a December 11, 1973 burglary of a house, former Penal Code Art. 1389, in Cause No. 31,270, and that such conviction became final prior to the commission of the primary offense. To prove these allegations, the State introduced certified copies of a "penitentiary packet," hereinafter "pen packet," containing copies of, inter alia, the indictment, judgment and sentence, conforming to the allegations in the enhancement count and bearing the Cause No. 31,270. Also among the contents of the pen packet, and introduced into evidence therewith, was a copy of a two page form document containing inter alia, a stipulation and agreement to stipulate evidence, waivers of jury trial, appearance, confrontation and cross-examination of witness and the admonishments required by Article 26.13, V.A.C.C.P., signed and approved by appellant, his counsel and the trial judge, but bearing the Cause No. 31,271. Evidence adduced out of the presence of the jury showed that these documents, regardless of the cause numbers noted on the face thereof, were filed in the trial court's file of the papers of Cause No. 31,270. Additionally, the State submitted certified copies of fingerprints taken by police on the day of his arrest for the primary offense, a fingerprint card and photograph, purportedly of appellant, found in the pen packet and expert testimony that both fingerprints were taken from the same individual. This evidence was clearly sufficient to support the jury's finding that the enhancement allegations were true, see e.g., Beck v. State, 719 S.W.2d 205, 209-210 (Tex.Cr.App.1986) and cases cited therein, and appellant does not claim otherwise.

It is settled law in this State, however, that, sufficient or even overwhelming evidence not withstanding, a finding of "true" is improper where the prior conviction alleged for purposes of enhancement is void. Ex parte Hall, 546 S.W.2d 303, 304 (Tex.Cr.App.1977); compare Platter v. State, 600 S.W.2d 803, 805 (Tex.Cr.App.1980) (as corrected on denial of rehearing). A prior conviction may be held void on collateral attack if, inter alia, the accused is convicted upon a plea of guilty without first waiving his right to jury trial pursuant to Articles 1.13, 1.14 and 1.15, V.A.C.C.P., Boyd v. State, 660 S.W.2d 820 (Tex.Cr.App.1983), or his rights to appearance, confrontation and crossexamination pursuant to Article 1.15, supra, Rodriguez v. State, 534 S.W.2d 335 (Tex.Cr.App.1976), Valdez v. State, 555 S.W.2d 463 (Tex.Cr.App.1977), Brewster v. State, 606 S.W.2d 325 (Tex.Cr.App.1980); the trial court wholly fails to admonish the accused pursuant to Article 26.13(a), supra, prior to receipt of his guilty plea, Ex parte Smith, 678 S.W.2d 78, 79 (Tex.Cr.App.1984), or otherwise fails to "substantially comply," Article 26.13(c), supra, with the statute, Taylor v. State, 610 S.W.2d 471 (Tex.Cr.App.1980), Hurtwitz v. State, 700 S.W.2d 919, 921 (Tex.Cr.App.1985) (Clinton, J., concurring) cert. denied, 474 U.S. 1102, 106 S.Ct. 884, 88 L.Ed.2d 919 (1986).

Appellant argues that his conviction in Cause No. 31,270 is void for two reasons. First, he contends that his testimony, out of the presence of the jury, that he did not "recollect" or "recall" executing written waivers or being admonished pursuant to Art. 26.13(a), supra, prior to his guilty plea, together with the fact that the written waivers and admonishments found among the papers for, and purportedly made in, Cause No. 31,270 in fact bear the cause No. 31,271, discharged his burden of showing violation of Articles 1.13, 1.14, 1.15, and 26.13, V.A.C.C.P. Second, and in the alternative, he maintains that, if he was admonished prior to his guilty plea, the conviction is nonetheless void for violation of Article 26.13, supra, because an improper range of punishment was given, viz: 2-10 years imprisonment rather than 2-12 years. See former Penal Code, Art. 1309. ³

Assuming arguendo that appellant's motion to quash was timely raised, ⁴ we reject both of appellant's arguments.

The formal judgment and sentence in Cause No. 31,270 recites inter alia: that appellant appeared in person, with counsel, and "having elected to waive a jury herein ... requested that a trial by jury be waived and this cause be tried by and before the court;" that counsel for the State and the trial judge consented to and approved this waiver, in writing, prior to appellant's plea of guilty; that appellant "having been duly arraigned before the court ... [then] pleaded guilty to the charge contained in the indictment filed herein, [and] thereupon the Court admonished the Defendant of the consequences of said plea of guilty but the Defendant persisted in pleading guilty." The State introduced a copy of this judgment and sentence during the punishment phase of the trial of the instant cause and adequately identified appellant with that document.

Under these circumstances, "this Court will indulge every presumption in favor of the regularity [and truthfulness] of the[se] documents ... This means that the recitations are binding in the absence of direct proof of their falsity." Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Cr.App.1985) (States Motion for Rehearing). Consequently, once the State introduced these documents into evidence, "[t]he burden then shift[ed] to the defendant, [to] make an affirmative showing of any defect in the judgment." Johnson v. State, 725 S.W.2d 245, 247 (Tex.Cr.App.1987). See also Vega v. State, 707 S.W.2d 557, 559 (Tex.Cr.App.1986) (On State's motion for rehearing); Harvey v. State, 485 S.W.2d 907, 909 (Tex.Cr.App.1972).

Appellant did not discharge that burden by showing that the copies of the waivers and admonishments "filed in the papers of", Art. 1.13, supra, and "in the file of the papers of", Art. 1.15, supra, Cause No. 31,270 purport on their face to relate to a different cause. Such proof does not affirmatively show that appropriate waivers and admonishments were not executed by appellant or given by the trial court in Cause No. 31,270. At most, it shows only that the Court's file for that cause did not contain copies of these documents some 8 years after entry of the judgment and sentence. But, it is settled that such proof alone is not...