Doby v. State

383 S.W.2d 418, 1964 Tex. Crim. App. LEXIS 1098

• Court: Court of Criminal Appeals of Texas
• Decided: June 3, 1964
• Docket: 37014
• Status: Published

Opinions

WOODLEY, Presiding Judge.

The offense is the unlawful possession of a narcotic drug; the punishment, enhanced by a previous conviction in 19S3 for passing a forged instrument and a conviction for burglary in 1956, life.

Officers, searching an apartment under authority of a search warrant, saw the appellant throw a glass jar out the back door; throw a package containing a syringe, a needle and eye droppers, which hit one of the officers and fell to the floor, and drop a plastic package which he was restrained from placing in his mouth.

The package dropped was recovered from the floor and was found to contain eight white tablets, seven of which were shown by the testimony of Chemist McDonald to be isonipecaine, a narcotic drug.

No question is raised as to the legality of the search warrant or as to the sufficiency of the evidence to sustain the finding of the jury that the appellant unlawfully possessed isonipecaine, a narcotic drug.

The state offered in evidence certified copies, from records of the Texas Department of Corrections, of the judgment and sentence in the burglary conviction of 1956 alleged in the indictment, with fingerprints of the defendant serving the sentence.

Also the state offered in evidence, over objection that it was not a final conviction, certified copies from the record of the Texas Department of Corrections, of the judgment and sentence in the 1953 conviction for passing a forged instrument, with fingerprints of the defendant.

The appellant’s identity as the defendant in the prior convictions was shown by testimony of an expert witness who compared the fingerprints above mentioned with fingerprints of the appellant taken by him.

Appellant’s attack upon the judgment in the 1953 conviction for passing a forged instrument is bottomed upon the fact that, in addition to reciting that the court accepted the defendant’s plea of guilty and assessed his punishment at 5 years, the portions of the printed form applicable in a plea of guilty before a jury were not deleted leaving this portion of the judgment to read:

“-and eleven others, was duly selected, empaneled and sexxx xxcording to law, who, having heard the indictment read, and the Defendant’s plea of guilty thereto; and hxxxxx heard the evidence submitted and having been duly charged by the Court, retired in charge of the pxxxxx officer, the Defendant being present, and in due form of law returned into open Court the following vxxxxxx which was received by the Court, and is here now enterxxxxx.”

In the absence of the jury in the case at bar it was shown that the trial in 1953 was before the court without a jury; that probation was granted as shown in the judgment and was afterwards revoked and sentence pronounced.

We overrule appellant’s contention that the conviction for passing a forged instrument alleged in the indictment was not a final conviction available to enhance the punishment. Brown v. State, Tex.Cr.App., 368 S.W.2d 618; Todd v. State, 170 Tex.Cr. R. 552, 342 S.W.2d 575.

It is contended that the certified copies of records of the Texas Department of Corrections were not admissible in evidence because the exhibits had been altered and mutilated by the state at the time they were introduced.

As we understand the record, the jury was retired when the exhibits were offered by the state and, upon objection, certain portions of the exhibits were removed and obliterated from them by the court so as to eliminate any reference to convictions other than those alleged in the indictment.

The sole question for the jury, regarding the prior convictions alleged for enhancement purposes, was whether as an historical fact the appellant was the defendant who was convicted in said causes, as alleged. Whether the convictions were valid or void and whether they were final convictions was for the court.

The trial court did not err in finding the convictions shown by the exhibits to be valid final convictions, and the appellant is in no position to complain that portions of the exhibits which were objectionable to him as showing convictions other than those alleged in the indictment were deleted before the exhibits were admitted before the jury.

Appellant’s attack upon the court’s charge because the jury was told that it is unlawful for any person “ * * * to possess, have under his or her control, Isonipe-caine * * * ” is without merit.

The judgment is affirmed.