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163 Tex. Crim. 67

Therrell v. State

Court of Criminal Appeals of Texas

Decided April 18, 1956

Court of Criminal Appeals of Texas · decided 1956-04-18

Relies on 134 Tex. Crim. 202 - Waltrip v. State · 138 Tex. Crim. 230 - Walker v. State · Solomon v. State

Decided 1956-04-18

MORRISON, Presiding Judge.

¶1The offense is aggravated assault, with a prior conviction of an offense of like character alleged for the purpose of enhancement; the punishment, 2 years in jail and a fine of $200.00.

¶2A prior appeal is reported as Therrell v. State, 161 Tex. Cr. Rep. 617, 279 S.W. 2d 879.

¶3The count charging the prior conviction was defective be*68cause it merely stated that the offense was one of like character as the primary offense without stating the nature of such offense. Waltrip v. State, 134 Tex. Cr. Rep. 202, 114 S.W. 2d 555; Walker v. State, 138 Tex. Cr. Rep. 230, 135 S.W. 2d 498; McClain v. State, 220 S.W. 2d 896.

¶4Appellant objected to that portion of the court’s charge in which the prior offense was submitted for their consideration.

¶5The verdict specifically found that the appellant had been convicted in the prior case.

¶6This identical situation was presented in Stover v. State, 145 Tex. Cr. Rep. 426, 168 S.W. 2d 871, and such holding requires a reversal of this conviction.

¶7The judgment is reversed and the cause remanded.

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