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548 S.W.2d 736

Hickman v. State

Court of Criminal Appeals of Texas

Decided March 30, 1977

Court of Criminal Appeals of Texas · decided 1977-03-30

Key passage — most relied on by later courts

“(a) If it be shown on the trial of a third-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a second-degree felony. (b) If it be shown on the trial of a second-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a first-degree felony. (c) If it be shown on the trial of a first-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than 99 years or less than 15 years. (d) If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.”

quoted by 4 later decisions, including McCrary v. State, Williams v. State

“Texas law does not allow a court to reform the sentence or remand for a new trial solely on punishment where the jury originally assessed the punishment.”

quoted by 1 later decision, including Briggs v. Procunier

Relies on Bullard v. State · 168 Tex. Crim. 306 - Rogers v. State · Tyra v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1977-03-30

How this case has been cited

Cited by 30 later decisions — most recently September 2010 · most notably Ex Parte Augusta (1982), Ex Parte Williams (1986)

2 federal appellate · 18 state decisions

21019771980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1 OPINION

DALLY, Commissioner.

¶2 This is an appeal from a conviction for the offense of aggravated robbery; the punishment, enhanced by two prior felony convictions, is imprisonment for life.

¶3 This conviction must be reversed because there is no evidence to show that appellant’s second previous felony conviction was for an offense committed after the first previous felony conviction became final.

¶4 The indictment alleged that prior to February 20, 1975, the alleged date of the commission of the primary offense, the appellant had been, on November 2, 1962, in Cause No. 2827-B in the 104th District Court of Taylor County, convicted for the felony offense of burglary, and that, after the conviction in Cause No. 2827-B had become final appellant committed the offense of burglary and was convicted for that offense on June 23, 1964, in Cause No. 9926-A in the 42nd District Court of Taylor County.

¶5 V.T.C.A. Penal Code, Section 12.42(d), provides:

*737 “If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.” (Emphasis added.)

¶6 V.T.C.A. Penal Code, Section 12.-42(d), requires the State to prove that the accused’s second previous felony conviction was committed after the first previous conviction became final. Wiggins v. State, 539 S.W.2d 142 (Tex.Cr.App.1976). This has also been the consistent holding of this Court under our former Penal Code; Article 63, V.A.P.C. (1925). See e. g., Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697 (1959); Lee v. State, 400 S.W.2d 909 (Tex.Cr.App.1966); Hutchinson v. State, 481 S.W.2d 881 (Tex.Cr.App.1972); Kessler v. State, 514 S.W.2d 260 (Tex.Cr.App.1974); Tyra v. State, 534 S.W.2d 695 (Tex.Cr.App.1976).

¶7 The State introduced the judgment and sentence for each of the two prior felony convictions alleged in the indictment. The appellant’s conviction for the offense of burglary in Cause No. 9926-A was final on June 23, 1964; therefore, this conviction was final before the commission of the primary offense which occurred on February 20,1975. Appellant’s conviction for burglary in Cause No. 2827-B was final on November 2, 1962; however, the record does not show when the offense in Cause No. 9926-A was committed. Therefore, there is no evidence in the record showing that the conviction in Cause No. 2827-B was final when appellant committed the offense in Cause No. 9926-A.

¶8 Although the error relates to punishment only, the jury, not the court, assessed punishment. Therefore, we may not reform the sentence or remand for a new trial on punishment only. Bray v. State, 531 S.W.2d 633 (Tex.Cr.App.1976); Wiggins v. State, supra. Compare Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App.1976), and Tyra v. State, supra, where punishment was assessed by the court.

¶9 In the event of another trial the prosecutor should not, as was done by the prosecutor in this ease, speculate before the jury on whether the appellant had committed other offenses that the jury did not know about.

¶10 The judgment is reversed and the cause remanded.

¶11 Opinion approved by the Court.

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