Turner v. State

• Decision Date: 03 June 1987
• Docket Number: No. 934-85,934-85
• Citation: 733 S.W.2d 218
• Parties: Anthony Fitzgerald TURNER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 218

733 S.W.2d 218

Anthony Fitzgerald TURNER, Appellant, v. The STATE of Texas, Appellee.

No. 934-85.

Court of Criminal Appeals of Texas En Banc.

June 3, 1987.

Allen C. Isbell (on appeal only), Houston, for appellant.

Michael J. Guarino, Dist. Atty., & Susan W. Burris, Asst. Dist. Atty., Galveston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted by a jury of aggravated sexual assault in Cause No. 39,863 in the 10th District Court of Galveston County. The jury assessed his punishment at forty (40) years' imprisonment. Immediately prior to formal sentencing the trial court conducted a hearing on the State's written motion for "consecutive sentencing" pursuant to Article 42.08, V.A.C.C.P., requesting that the sentence to be imposed not begin until the sentence in a prior conviction "(Cause Number 39,830)" ¹ had ceased to operate. At the conclusion of the hearing the trial court "stacked" the sentences.

On appeal the appellant contended in three points of error, inter alia, that the cumulation order entered by the trial court in the sentence should be stricken since there was no evidence offered to show that there was such a prior conviction in Cause Number 39,830, and no showing that appellant was the same person convicted in said Cause Number 39,830, and if the trial court took judicial notice of a conviction in another and different district court, it was improperly taken.

On appeal the Court of Appeals affirmed the conviction, rejecting all of appellant's points of error. Turner v. State, 695 S.W.2d 254 (Tex.App.-Houston [1st Dist.] 1985). In rejecting appellant's above described contentions, the Court of Appeals wrote:

"In opposition to the State's motion for consecutive sentencing, appellant presented no controverting proof alleging that he was not the defendant in cause number 38,380 (sic) or that there was no conviction in that cause. Appellant did not dispute during the trial that he was the same defendant convicted in cause number 38,380 (sic) or that a conviction occurred. The appellant also failed to object to the trial judge's taking judicial notice of a conviction of the same defendant. Appellant has, accordingly, preserved no error for review. The failure to object waives any except fundamental error.

"The transcript sufficiently reflects the prior conviction and since there was no objection, it was admissible."

We granted appellant's petition for discretionary review to determine the correctness of the holding of the Court of Appeals.

The record reflects that after the court convened the hearing on the State's motion for "consecutive sentencing" there was no proof offered by the State that there was a prior conviction as alleged or any evidence identifying the appellant as the person so previously convicted. The hearing consisted entirely of colloquy between the attorneys and the trial judge with the judge explaining just why he was exercising his discretion under Article 42.08, V.A.C.C.P. There was no objection that the State had failed to sustain its burden of proof.

The State did not request that the trial judge take judicial notice of the prior conviction nor did the judge inform the parties that judicial notice was being taken of such conviction. Just before commencing the hearing and recognizing the prosecutor, the Court stated:

"In Cause Number 39,830 there's a judgment and sentence entered against Anthony Fitzgerald Turner on the 2nd day of July 1984, sentencing him to 25 years in the Texas Department of Corrections for the offense of burglary of a habitation."

After being recognized, the prosecutor noted:

"Your Honor please, as the Court stated, the Defendant was previously convicted of a burglary of a habitation, and I believe sentence imposed of 25 years July 2nd 1984, by Judge Harris, and I understand the case is on appeal."

The assertion was not under oath, and as earlier observed, no proof of the conviction was offered nor does the record contain a copy of the judgment and sentence in the alleged prior conviction. ² The Court of Appeals observed the "appellant presented no controverting proof" and did not dispute there was a prior conviction or that he was not the same person so previously convicted, and failed to object to the taking of judicial notice, and thus did not preserve any error for review.

At the time of this 1984 sentencing Article 42.08, V.A.C.C.P., provided:

"When the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in an institution operated by the Department of Corrections or the jail for a term of imprisonment, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction, except that in the discretion of the court, the judgment in the second and subsequent convictions may either be that the punishment shall begin when the judgment and sentence in the preceding conviction has ceased to operate, or that the punishment shall run concurrently with the other case or cases, and sentence and execution shall be accordingly."

Now see Article 42.08 as amended (Acts 1985, 69th Leg., ch. 29, § 1, eff. Sept. 1, 1985).

Tracing the history of the statute, we find that prior to 1879 there was no authority under the "criminal code of Texas" for a judge to fix the commencement of a term in the penitentiary at the expiration of another term. Prince v. State, 44 Tex. 480 (1876); ³ Hannahan v. State, 7 Cr.R. 664 (Court of Appeals 1880); Baker v. State, 11 Cr.R. 262 (Court of Appeals 1881).

In the 1879 Code of Criminal Procedure, Article 800 provided for cumulation of punishment by the trial court for the first time. It is observed that this first statute applied only to felony convictions "at the same term of court" and was nondiscretionary in its language. ⁴ And such statute was held constitutional in Shumaker v. State, 10 Tex.App. 117 (Court of Appeals 1881). See also Lillard v. State, 17 Tex.App. 114 (Court of Appeals 1884).

Article 800 of the 1879 Code of Criminal Procedure was amended in 1883. ⁵ The amendment removed the restriction as to "the same term of court," Ex parte Moseley, 30 Tex.App. 338, 17 S.W. 418 (Court of Appeals 1891); Ex parte Lawson, 98 Tex.Cr.R. 544, 266 S.W. 1101 (1925), and authorized the cumulation of sentences where the defendant had been convicted of a felony in some other county or at some former term of the same court. Miller v. State, 44 S.W. 162 (Tex.Cr.App.1898). The amendment also made the statute applicable to misdemeanors where imprisonment was part of the punishment as well as felonies. Stewart v. State, 37 Tex.Cr.R. 135, 38 S.W. 1143 (Court of Appeals 1897); Ex parte Cox, 29 Tex.App. 84, 14 S.W. 396 (Court of Appeals 1890); Ex parte Banks, 41 Tex.Cr.R. 201, 53 S.W. 688 (1899). Cf. Ex parte Davis, 71 Tex.Cr.App. 538, 160 S.W. 459 (1913).

Said Article 800 as amended in 1883 became Article 840 of the 1895 Code of Criminal Procedure and later Article 862 of the 1911 Code of Criminal Procedure unchanged except for punctuation.

In 1919 Article 862 of the 1911 Code of Criminal Procedure was amended to place the cumulation of punishment within the discretion of the trial court. ⁶

Such statute as amended in 1919 became Article 774 of the 1925 Code of Criminal Procedure unchanged, and Article 774 was subsequently brought forward as Article 42.08 of the 1965 Code of Criminal Procedure unchanged except that the words "Department of Corrections" were substituted for "penitentiary." Now see Article 42.08 as amended in 1985 adding § (b).

Over the years most questions arising under Article 42.08, supra, and its forerunners have dealt with the sufficiency of the order cumulating sentences, whether the order contained the necessary elements or essential recitals. See, e.g., Ex parte Lewis, 414 S.W.2d 682 (Tex.Cr.App.1967); Ex parte March, 423 S.W.2d 916 (Tex.Cr.App.1968), and cases there cited; Ex parte Reynolds, 462 S.W.2d 605 (Tex.Cr.App.1971).

Surprisingly, since 1879, there have not been many reported cases concerning evidence necessary to sustain this form of enhancement of punishment, cumulation of sentences. While the statute has never spelled out procedure, it has been said generally that it is only by virtue of the statute and compliance with its terms that cumulative imprisonment can be assessed and enforced. Ex parte Hunt, 28 Tex.App. 361, 13 S.W. 145 (Court of Appeals 1890); Ex parte Cox, 29 Tex.App. 84, 14 S.W. 396 (Court of Appeals 1890).

And it has been said that where the record did not show a prior conviction the cumulation order was not valid. Lockhart v. State, 29 Tex.App. 35, 13 S.W. 1012 (Court of Appeals 1890). ⁷

In Bullard v. State, 40 Tex.Cr.App. 348, 50 S.W. 348 (1899), the defendant complained that there was no evidence introduced authorizing the cumulation of the sentence. The record reflected that the defendant was in the penitentiary "from Freestone County" and was brought to Ellis County for trial, but there was no record evidence presented of his prior conviction or any other data. There this Court wrote:

"We hold that, unless record evidence of former convictions of the defendant is introduced, together with oral evidence of his identity unless the convictions occurred at the same term that the appellant is tried, the court will not be authorized to make the sentence cumulative." ⁸

Cf., however, King v. State, 32 Tex.Cr.App. 463, 24 S.W. 514 (1893).

In Forester v. State, 73 Tex.Cr.App. 61, 163 S.W. 87 (1913), record evidence of the prior conviction was offered at the time of sentencing as well as testimony identifying the defendant as the person so previously convicted. The cumulation order was upheld under this procedure. See also Westfall v. State, 375 S.W.2d 911 (Tex.Cr.App.1964) (where cumulation of sentences was authorized where...