Burns v. State

Court of Appeals of Texas

Burns v. State

695 S.W.2d 235, 1985 Tex. App. LEXIS 12934

CourtCourt of Appeals of Texas

DecidedMay 30, 1985

DocketNo. 13-84-337-CR

StatusPublished

Cited by2 cases

This text of 695 S.W.2d 235 (Burns v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Burns v. State, 695 S.W.2d 235, 1985 Tex. App. LEXIS 12934 (Tex. Ct. App. 1985).

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Opinion

[236]*236OPINION

BENAVIDES, Justice.

Appellant was tried by a jury which found him guilty of the offense of aggravated robbery. Appellant pled “true” to the enhancement allegations of the indictment and was sentenced by the jury to life in prison. We affirm.

In a single ground of error, appellant alleges the court’s charge disallowed the jury to be the factfinder in assessing punishment.

The indictment properly alleged previous felony convictions under circumstances described in TEX.PENAL CODE ANN. § 12.42(d) (Vernon Supp.1985). The court’s charge on punishment instructed the jury that it could assess either confinement for life or a term not more than 99 years’ or less than 25 years’ confinement. Appellant now argues that, as factfinder, the jury was entitled to disbelieve his plea of true and the evidence presented by the State proving the prior convictions as alleged and should not have been limited to the punishments set forth in Section 12.42(d) of the Texas Penal Code.

Although decided before the 1983 amendment of § 12.42(d), we find the case of Harvey v. State, 611 S.W.2d 108 (Tex.Crim.App.), cert. denied., 454 U.S. 840, 102 S.Ct. 149, 70 L.Ed.2d 123 (1981), controlling. When appellant pled “true” to the indictment, the truth of the enhancement allegations was resolved and that issue was no longer before the jury. Id. at 111. Punishment in accordance with the statute was then mandatory. Id. See and compare Washington v. State, 654 S.W.2d 10 (Tex.App.—Corpus Christi, 1982), aff’d, 677 S.W.2d 524 (Tex.Crim.App.1984). Appellant’s ground of error is overruled.

The judgment of the trial court is AFFIRMED.

Opinion ordered published.

TEX.R.CRIM.APP.P. 207.

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[236]*236OPINION

BENAVIDES, Justice.

Appellant was tried by a jury which found him guilty of the offense of aggravated robbery. Appellant pled “true” to the enhancement allegations of the indictment and was sentenced by the jury to life in prison. We affirm.

In a single ground of error, appellant alleges the court’s charge disallowed the jury to be the factfinder in assessing punishment.

The indictment properly alleged previous felony convictions under circumstances described in TEX.PENAL CODE ANN. § 12.42(d) (Vernon Supp.1985). The court’s charge on punishment instructed the jury that it could assess either confinement for life or a term not more than 99 years’ or less than 25 years’ confinement. Appellant now argues that, as factfinder, the jury was entitled to disbelieve his plea of true and the evidence presented by the State proving the prior convictions as alleged and should not have been limited to the punishments set forth in Section 12.42(d) of the Texas Penal Code.

Although decided before the 1983 amendment of § 12.42(d), we find the case of Harvey v. State, 611 S.W.2d 108 (Tex.Crim.App.), cert. denied., 454 U.S. 840, 102 S.Ct. 149, 70 L.Ed.2d 123 (1981), controlling. When appellant pled “true” to the indictment, the truth of the enhancement allegations was resolved and that issue was no longer before the jury. Id. at 111. Punishment in accordance with the statute was then mandatory. Id. See and compare Washington v. State, 654 S.W.2d 10 (Tex.App.—Corpus Christi, 1982), aff’d, 677 S.W.2d 524 (Tex.Crim.App.1984). Appellant’s ground of error is overruled.

The judgment of the trial court is AFFIRMED.

Opinion ordered published.

TEX.R.CRIM.APP.P. 207.

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695 S.W.2d 235, 1985 Tex. App. LEXIS 12934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-state-texapp-1985.

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