Baker v. State

¶1*826OPINION

¶2ON APPELLANT’S SECOND MOTION FOR REHEARING

¶3Our prior opinions and orders affirming this conviction for robbery, with punishment enhanced by a prior conviction for burglary with intent to commit theft (Art. 62 P.C.), are withdrawn.

¶4Relying on our opinion in Johnson and White v. State, Tex.Cr.App., 436 S.W.2d 906, handed down the same day as our opinion on appellant’s first motion for rehearing, appellant complains that the state was permitted to use a prior conviction in a non-capital felony alleged to enhance punishment in an indictment for armed robbery, a capital offense.

¶5As far as the first count of the indictment herein is concerned, the rule applied as to the defendant Johnson, in Johnson and White v. State, supra, is applicable, our holding being that a prior conviction for a felony less than capital alleged in an indictment for a capital felony, such as armed robbery, (1) cannot be used to enhance the punishment for the primary offense (Couch v. State, 155 Tex.Cr.R. 585, 238 S.W.2d 198; Meador v. State, 161 Tex.Cr.R. 183, 275 S.W.2d 657; Urtado v. State, 167 Tex.Cr.R. 318, 319 S.W.2d 711), and (2) cannot be used to enhance the punishment applicable to any included non-capital felony for which the defendant may be convicted under the indictment alleging a capital offense.1

¶6The effect of our holding in Johnson and White v. State, supra, is that, though the prior convictions are admissible at the hearing on the punishment to be assessed, the punishment for the lesser included offense of which the defendant is convicted is not by reason of such prior convictions “absolutely fixed by law to some particular penalty” (Art. 37.07 V.A. C.C.P.), but must be assessed by the court or jury.

¶7Our holding in Johnson and White v. State, supra, has no application where in a separate count of the indictment a non-capital felony is charged and one or more prior non-capital felonies are alleged to enhance the punishment pursuant to Art. 62 or 63 P.C. Neither does the holding in Johnson and White v. State, supra, alter the rule that as to the primary offense the state may be permitted to abandon allegations of the indictment for a capital offense and thereby reduce the offense to a non-capital felony.

¶8Another rule applicable in recidivist cases is that the accused is entitled to proper notice in the indictment of any prior conviction which the state seeks to use in connection with a primary count. Parasco v. State, 165 Tex.Cr.R. 537, 309 S.W.2d 465.

¶9While the rule in Johnson and White v. State, supra, is applicable to the first count of the indictment herein, the record reflects that said count was “dropped” and was not read to the jury.

¶10The indictment contained a second count which alleged the non-capital felony offense of robbery by assault, with no prior convictions alleged for enhancement purposes. On arraignment appellant pled “not guilty,” but after the jury was empaneled and the indictment read, he pleaded guilty to the second count of the indictment.

¶11Prior to the selection of the jury appellant requested in writing that the punish*827ment, if any, be assessed by the jury. After he changed his plea to “guilty” and the evidence was closed, he was permitted to withdraw this request and have the court assess the punishment.

¶12In the court’s charge the jury was instructed to find appellant “guilty of the offense of robbery as charged in the second count of the indictment,” and did so.

¶13Thereafter, the court entered judgment finding that appellant had been previously convicted of an offense less than capital “as charged in the third count of the indictment,” and assessing his punishment at life.

¶14The indictment included in the record on appeal and in a supplemental transcript contains no third count. The only prior conviction alleged in the indictment is found in the second paragraph of the first count. It alleges that such prior conviction was a conviction for an offense committed “prior to the commission of the offense hereinbefore charged against him as set forth in the first paragraph hereof.”

¶15The trial court erred in using the prior conviction alleged to enhance the punishment for the offense of armed robbery, a capital felony in the first count, to enhance the punishment for the felony less than capital charged in the second count.

¶16The error relates to punishment only.

¶17The judgment of conviction is reversed and the cause remanded to the trial court for the assessment of a proper punishment for the offense of which appellant was found guilty. Johnson and White v. State, supra.

¶18It is so ordered.