Robinson v. State
| Decision Date | 10 May 1967 |
| Docket Number | No. 40340,40340 |
| Citation | 415 S.W.2d 180 |
| Parties | Joe James ROBINSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Paul J. Chitwood, Dallas, for appellant.
Henry Wade, Dist. Atty., John H. Stauffer, Al Walvoord and Kerry P. FitzGerald Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is Robbery by Assault; the punishment, seventy (70) years confinement in the Texas Department of Corrections.
A recitation of the facts is unnecessary for a proper disposition of the grounds of error relied upon by appellant.
In his first ground of error, appellant complains of the trial court's refusal to grant his motion to dismiss the indictment at the close of the State's case in chief on the issue of guilt or innocence.
Trial commenced on September 12, 1966.
In the second paragraph of the indictment, it was alleged that the appellant had been previously convicted of the offense of Robbery by Assault in Lubbock, County, Texas, in 1957. In accordance with Article 36.01, Vernon's Ann.C.C.P., the second paragraph of the indictment alleging the prior conviction was not read to the jury, and the defendant entered his plea of not guilty to the primary offense.
At the close of the State's case in chief upon the issue of guilt or innocence of the primary offense, appellant made a motion which he has designated a dismissal motion, rather a motion for instructed verdict, claiming there was a fatal variance between the proof offered and the allegations of the indictment alleging a prior conviction since the proof at that point of the trial showed no such prior conviction. The Court refused to rule on appellant's motion saying it was untimely made and pointing out that the second paragraph of the indictment was relevant to and must be resolved at the separate hearing on punishment if the jury found the appellant guilty of the primary offense. The trial court was correct.
Article 36.01, supra, provides 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.'
See Article 37.07, C.C.P.
Appellant's first ground of error is overruled.
In his next ground of error, appellant urges that the trial court erroneously altered or amended the indictment as to the matter of substance.
The trial court submitted to the jury in its charge on the issue of guilt or innocence only the first paragraph of the indictment alleging the primary offense. After a verdict of guilty was returned, the Court sustained appellant's objections to the second paragraph of the indictment alleging the prior robbery conviction because it was shown tht on the date alleged in the second paragraph there has been no final conviction. The second paragraph was dismissed by the Court.
Appellant's counsel acknowledges in his brief that he is aware that allegations of a prior conviction are not a substantial part of the primary offense, but are for the determination of punishment alone. Nevertheless, he contends that the submission of the primary offense alone to the jury in the Court's charge on guilt or innocence as well as the subsequent dismissal of the second paragraph constituted an amendment or alteration of the indictment as to a matter of substance and was reversible error. We cannot agree. Article 36.01, supra; Article 37.07, supra; Epperson v. State, 168 Tex.Cr.R. 557, 330 S.W.2d 445; Urtado v. State, 167 Tex.Cr.R. 318, 319 S.W.2d 711.
The dismissal of the second paragraph was at appellant's request and was favorable to him. Further in Epperson v. State, supra, this Court said:
The appellant chose the jury to assess the punishment and the Court in its charge following the hearing on punishment did not mention or allude to the enhancement statute (Article 62, Vernon's Ann.P.C.). At no time was the jury made aware of the allegations of the second paragraph.
The record does reflect that at the hearing on punishment, the appellant in person and his counsel stipulate...
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Larkin v. State, No. 10-06-00313-CR (Tex. App. 5/14/2008)
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