Benedict v. State

361 S.W.2d 373, 172 Tex. Crim. 570, 1962 Tex. Crim. App. LEXIS 1090

• Court: Court of Criminal Appeals of Texas
• Decided: June 13, 1962
• Docket: 34699
• Status: Published

Opinions

DICE, Judge.

The conviction is for burglary; the punishment, enhanced by two prior convictions for felonies less than capital, life imprisonment.

No statement of facts of the evidence adduced upon the main trial on the issue of appellant’s guilt accompanies the record and appellant’s sole contention on appeal is that the court erred in overruling his plea of former jeopardy.

The indictment under which appellant stands convicted charged the burglary of a house occupied and controlled by Robert Ward Gehm and alleged that the offense was committed on or about the 14th day of June, 1961. Paragraphs No. 2 and 3 alleged two prior convictions, in the years 1954 and 1956, for the offenses of breaking and entering a motor vehicle, being felonies less than capital.

Appellant filed a plea of former jeopardy to paragraphs No. 2 and No. 3 of the indictment and alleged as grounds therefor that he had been put to trial on May 1, 1961, in the same court in an entirely different burglary case in which the same two prior convictions were alleged in the indictment and after the jury had failed to agree in the case they were discharged by the court without appellant’s consent and before they had been kept together for such time as to render it altogether improbable that they could agree.

We need not pass upon the question as to whether the court erred in discharging the jury in the prior case, as the use of the two prior convictions in that case which resulted in a mistrial did not prevent their use in the present case for the purpose of enhancement of the punishment.

While it is the rule in this state that prior convictions may not be used more than once to enhance punishment, in Johnson v. State, 253 S.W. 2d 1006, it was held that a prior conviction must be “successfully” used before it can no longer be used for enhancement. In the Johnson case the prior convictions alleged for enhancement were used in a prior case where the conviction was reversed on appeal. In holding that the convictions could be used in a subsequent case, it was pointed out that by reason of the reversal the prior convictions had not been successfully used.

In Mooring v. State, 256 S.W. 2d 97, it was held that where prior convictions were alleged and proven to enhance the punishment in a case which resulted in an acquittal, it did not constitute a successful use of the prior convictions so as to prevent their being used in a subsequent case for the same purpose, and that the doctrine of double jeopardy did not apply.

The two prior convictions alleged in the instant case, not having been successfully used in the prior case against appellant, were available to enhance punishment herein.

The judgment is affirmed.

Opinion approved by the Court.