Rounsavall v. State

Decision Date31 May 1972
Docket NumberNo. 44715,44715
Citation480 S.W.2d 696
PartiesRobert Garry ROUNSAVALL, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Robert C. Sullivan, Waco, for appellant.

Martin D. Eichelberger, Dist. Atty., Frank M. Fitzpatrick, Jr., Kenneth H. Crow and James R. Barlow, Asst. Dist. Attys., Waco, and Jim D. Vollers, State's Atty., Austin, for the State.


DALLY, Commissioner.

The conviction was for the offense of burglary, enhanced under Article 63, Vernon's Ann.P.C.; the punishment, assessed by the court, life imprisonment.

A summary of the facts is not necessary to the disposition of appellant's grounds of error and is therefore omitted.

The appellant's complaint that it was error to admit certain evidence at appellant's preliminary trial on the issue of insanity will not be considered, as this court has consistently refused to consider appeals from judgments rendered in preliminary trials on the issue of insanity. See Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972); Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App.1967); Pena v. State, 167 Tex.Cr.R. 406, 320 S.W.2d 355 (1959) and Ex parte Hodges, 166 Tex.Cr.R. 433, 314 S.W.2d 581 (1958).

The appellant complains that it was not proved that he was the same Robert Garry Rounsavall convicted of the offenses alleged for enhancement of punishment.

The record contains a portion of the transcription of the testimony of the preliminary trial on the issue of insanity. At that trial the State introduced the prison packet properly certified, showing the judgments of conviction, photographs, fingerprints and commitments in both of the convictions alleged for enhancement purposes. At the preliminary trial a fingerprint identification expert, who had compared the known fingerprints of the appellant with those certified in the prison packets, testified that the appellant was one and the same person.

The same judge presided at the preliminary trial on the issue of insanity and the trial on the burglary charge. As the appellant did not elect to have the jury assess his punishment, it was assessed by the court. In the punishment phase of the trial the same prison packets were remarked for identification purposes and offered in evidence. The court admitted the exhibits into evidence over the appellant's objection that the appellant was not shown to be the same person convicted of such offenses. The court did not err in admitting the exhibits in the penalty stage of the proceedings, which had already been properly proved and admitted before the court in the preliminary trial on the issue of insanity. The court could consider for the purpose of enhancement of penalty the evidence regarding the identity of the appellant as the person convicted of the former offenses, admitted on the preliminary trial. See and compare Branch v. State, 445 S.W.2d 756 (Tex.Cr.App.1969) and Bridges v. State, 468 S.W.2d 451 (Tex.Cr.App.1971).

However, we do not find the evidence in the record sufficient to support the enhancement allegations under the provisions of Article 63, V.A.P.C.

The indictment in this case alleges that the appellant was convicted of the offense of burglary in McLennan County on the 30th day of December, 1966, in Cause Number 15,923 and that prior to the Commission of that offense he was convicted for the offense of burglary in McLennan County on the 12th day of December, 1963, in Cause Number 15,369.

There is no evidence in the record to show when the offense alleged in Cause Number 15,923 was Committed.

This court has consistently held that to invoke the provisions of Article 63, V.A.P.C., it is necessary that each succeeding conviction be subsequent both in point of time of the commission of the offense and the conviction therefor.

The indictment must so allege and the averments of the indictment must be supported by proof. Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697 (1959); Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383 (1960); Lee v. State, 400 S.W.2d 909 (Tex.Cr.App.1966); Jones v. State, 422 S.W.2d 183 (Tex.Cr.App.1967) and Cf. Villareal v. State, 468 S.W.2d 837 (Tex.Cr.App.1971).

The evidence proves that the appellant was convicted of both offenses of burglary in Cuases 15,923 and 15,369, prior to the date he was Proved to have Committed the primary offense alleged in this case. This proof will sustain a conviction for a subsequent offense of the same nature under the provisions of Article 62, V.A.P.C. The punishment provided by law is twelve years imprisonment.

The judgment and sentence are therefore reformed to provide for appellant's confinement in the Texas Department of Corrections for a period of twelve years. See Lee v. State, Supra and Hamilton v. State, 397 S.W.2d 225 (Tex.Cr.App.1965).

The judgment, as reformed, is affirmed.

Opinion approved by the court.

DOUGLAS, Judge (concurring).

The record reflects that the Honorable Carl Anderson, the same judge who tried the case, conducted the sanity hearing. He submitted the charge on the sanity issue on November 17, 1970, and the charge to the jury on the trial on the merits the following day.

After the jury found the appellant guilty, the same judge assessed the punishment.

The exhibits consisting of the prison packets which included the judgments, sentences, photographs and fingerprints of the appellant were introduced formally before Judge Anderson at the penalty stage of the trial.

The judge entered 'Findings of Fact and Conclusions of Law' and found that the State offered into evidence at the penalty stage of the trial the same exhibits that were offered at the sanity hearing. He found, '(s)aid exhibits were offered before the same court in the same proceedings,' and based thereon, he found that Rounsavall was the person previously convicted as alleged in the indictment. 1 There is no express statement in the findings and conclusions that the trial judge was exclusively basing his findings on other testimony without reference to testimony offered at another hearing. The judge set out the proceedings of the sanity hearing and then made his findings. It appears that this is certainly a reference to that proceeding.

The judge had before him the same judgments, the same sentences, the same photographs, the same fingerprints and the same man who had been found sane the day before, yet the dissent would reverse the penalty phase of the trial for further proceedings because the fingerprint examiner did not testify the second time that the fingerprints in the exhibits were those of Rounsavall.

It appears that the dissent would hold that the trial court could not know that the same man was before him the day after the sanity hearing.

This Court had before it a somewhat analogous situation in Bridges v. State, 468 S.W.2d 451. There it was contended that the court erred in cumulating sentences against Bridges because no proof was offered that he was the person previously convicted. The sentence in that case was imposed April 20, 1970, in Randall County. The trial court cumulated that sentence with one that was pronounced in Potter County on April 14, 1970, without any proof that he was the person previously convicted.

This Court, in an opinion by Presiding Judge Onion, unanimously held that no proof was required that Bridges was the same person previously convicted. That opinion recited that the sentences were imposed some six days apart by the same judge during the same term of court. There the Court cited the rule:

"In criminal cases, the trial court may notice judicially its own records and proceedings, and all judgments entered by the court. Thus, the court may, and indeed should, take judicial notice of the fact that the defendant or a witness has previously been convicted by the court.' 23 Tex.Jur.2d, Evidence, Sec. 27, pp. 47--48.'

In the present case there is less chance of mistaken identity because the hearings were under the same cause number, in the same court in a two-day period with the same judge presiding. In my opinion, there is no logical reason to apply a different rule in the present situation, especially where we have exhibits containing photographs of the appellant before the trial judge who saw these exhibits which were introduced one day before the trial on the merits. In the Bridges case there were no such exhibits or proof before the trial judge or this Court on appeal.

This does not involve another trial such as was the case in Scott v. Clark, Tex.Civ.App., 38 S.W.2d 382, and in Grayson v. Rodermund, Tex.Civ.App., 135 S.W.2d 178, cited in the dissent. In Entrekin v. Entrekin, Tex.Civ.App., 398 S.W.2d 139, also cited in the dissent, a different issue was involved at each hearing, i.e. child custody and divorce. In the present case there was a different ultimate issue at each hearing, but the only issue that the testimony of the fingerprint examiner could be used for was the identity of the person previously convicted.

We should and have followed the reasoning in the Bridges case.

The dissent would apparently fear that the failure to require additional proof of identity in the present case might be construed as a precedent that no proof of identity will be required if the same judge presides at another trial months or perhaps a year later. We do not have that situation here. Any such question can be answered when that fact situation is before this Court.

In Branch v. State, Tex.Cr.App., 445 S.W.2d 756, there was a two-stage trial. It was proved at the guilt-innocence stage that Branch was the person previously convicted. He was not identified as the person previously convicted at the penalty stage, but the prison record including photographs and fingerprints were introduced. The Court held that the evidence used at the guilt stage could be considered by the jury at the second or penalty stage of the trial. Generally, prior convictions can be introduced at the guilt stage of the trial for impeachment purposes, but they...

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