Aaron v. State

546 S.W.2d 277

• Court: Court of Criminal Appeals of Texas
• Decided: February 16, 1977
• Docket: 51044
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for the offense of burglary (habitual). Trial was before a jury and the jury, having found appellant guilty of burglary and of having been twice previously convicted of felonies less than capital, assessed his punishment at life in prison. The primary offense took place on February 17, 1973 and trial commenced on July 8, 1974.

All of appellant’s grounds of error are directed toward the Louisiana penitentiary packet introduced to prove the first enhancement count of the indictment.

Appellant first complains that the “pen packet” is not properly certified under Art. 3731a, Sec. 4, V.A.C.S., since it is attested to by the Secretary of State of Louisiana and not by a “judge of a court of record of the district or political subdivision in which the record is kept.” Section 4 of Art. 3731a makes it clear that certification of such papers by a judge is permitted, but is by no means mandatory. It also provides, “Such writings . . . may be evidenced ... by a copy . attested by the officer having the legal custody of the record . . . .” In this case, the Louisiana Secretary of State certified to the identity of the warden and the records clerk of the Louisiana State Penitentiary. The records clerk certified that he was the legal custodian of the records and that the copies admitted at trial were true and exact copies. We find that the pen packet was properly certified for admission as evidence. Cf. Morgan v. State, Tex.Cr.App., 532 S.W.2d 85 (1976).

Appellant makes a more serious attack on the admission of three letters in the pen packet which alluded to convictions other than that for which the packet was offered. One such letter, dated May 21,1961, recited that appellant had been convicted and sentenced on three separate thefts or burglaries, none of which was the conviction alleged in the indictment for enhancement. The other two letters, dated January 23, 1962, relate to the prior conviction alleged, but add that appellant’s three-year sentence thereon was to run consecutively with the remainder of the sentence from which he was paroled. This is an obvious reference to the concurrent sentences for burglary or theft that appellant had received the year before.

These extraneous convictions were not alleged for enhancement in the indictment. Yet they are proper subjects for proof at the punishment stage of the trial under Art. 37.07, V.A.C.C.P. Burton v. State, 493 S.W.2d 837 (Tex.Cr.App.1973). However, proof of such convictions cannot be satisfied by mere references thereto contained in letters in appellant’s pen packet. A conviction in Mullins v. State, 492 S.W.2d 277 (Tex.Cr.App.1973) was reversed because the defendant’s pen packet, which was introduced at his trial to prove his prior record under Art. 37.07, included an instrument containing the details of the Arkansas convictions for which the packet was offered, an extraneous offense, and two California offenses, only one of which appeared to have resulted in a conviction. Since Art. 37.07 limits the proof at the punishment stage to prior final convictions, admission of evidence of the details of the offenses and of other, non-final convictions was reversible error. See also Lege v. State, 501 (Tex.Cr.App.1973); Sherman v. State, 537 S.W.2d 262 (1976). Likewise, the record in the instant case does not support the conclusion that the offenses to which the letters referred were final convictions.

The pen packet also contained certified copies of the informations and the sentences for the three extraneous offenses. Although these documents were all attested to on the same date, the informations show no cause numbers to correspond to those on the sentences. Moreover, the bills of information charge three separate burglary offenses, but the minutes of the court show the three sentences to be for theft offenses. A variance such as this would render a Texas conviction void. Thomas v. State, 525 S.W.2d 172 (Tex.Cr.App.1975); Gooden v. State, 140 Tex.Cr.R. 351, 145 S.W.2d 179 (1941); Litchfield v. State, 159 Tex.Cr.R. 5, 259 S.W.2d 228 (1953); Ex parte Dies, 160 Tex.Cr.R. 468, 272 S.W.2d 373 (1954). Finally, the pen packet contains no judgments upon which sentences for the three offenses can be based. “The absence of a judgment invalidates a sentence, and without a sentence no final conviction has resulted from the trial.” Morgan v. State, 515 S.W.2d 278 (Tex.Cr.App.1974). A conviction that is not final cannot be used at the punishment stage of a trial under Art. 37.07, Sec. 3(a), Y.A.C.C.P. Morgan v. State, supra.

The pen packet introduced to establish the convictions used for enhancement also contained evidence of extraneous offenses not shown to be valid final convictions. The error cannot be characterized as harmless. Sherman v. State, supra. The judgment of the trial court will be reversed and the cause remanded.

In the event of a retrial, we call attention to another fatal variance. The indictment charged appellant with having previously been convicted of “attempted burglary” in Cause No. 17686 on January 22,1962 in the Tenth Judicial District Court of Natchitoches Parish, Louisiana. The sentence shown for the prior conviction was for “simple burglary.” In addition to the need for a judgment of conviction for the offense, discussed above, the allegations and proof would appear to reflect a fatal variance.

For the foregoing reasons, the judgment is reversed and the cause remanded.