Eggins v. State

Court of Appeals of Texas

Eggins v. State

860 S.W.2d 206, 1993 Tex. App. LEXIS 2356, 1993 WL 317840

Court of Appeals of Texas·Decided August 4, 1993·No. No. 2-92-267-CR·Published

Opinion

OPINION

HICKS, Justice.

Appellant, Larry Keith Eggins, appeals his thirty-six year sentence, alleging the trial court improperly admitted and considered evidence of his prior criminal history. We affirm.

On June 22, 1989, a jury convicted Eggins of delivery of a controlled substance, namely cocaine, less than twenty-eight grams, and assessed punishment at fifty-one years. Nine months later, on March 9, 1990, Eggins pled guilty to two charges of possession of a forged check and possession of a controlled substance.

On August 21, 1991, this court reversed and remanded Eggins’ June 22 delivery conviction for a new punishment trial.¹ At the punishment retrial, the State introduced the March 9 convictions, which the trial court admitted over defense counsel’s objections.

Eggins argues the trial court improperly admitted the March 9 convictions under TEX.CODE CRIM.PROC.ANN. art. 37.07, § 3(a) (Vernon Supp.1993) because they were not final prior to the original trial, citing TEX.CODE CRIM.PROC.ANN. art. 44.29(b) (Vernon Supp.1993);² and TEX.R.APP.P. [207]*20787(b)(2).³

The Austin Court of Appeals addressed this issue in Sanders v. State, 832 S.W.2d 719 (Tex.App.—Austin 1992, no pet.) (citing Carter v. State, 813 S.W.2d 746 (Tex.App.—Houston [1st Dist.] 1991, no pet.)). In Sanders, the appellant was convicted of aggravated sexual assault on August 14, 1987, and six days later he pled guilty to burglary of a habitation. Id. at 720-21. At his retrial on punishment in the aggravated sexual assault case, appellant argued that the court erred in allowing the burglary conviction to be used as a “prior conviction.” The court disagreed stating:

We hold that the term “prior criminal record” includes a final conviction occurring “prior” to the date of the retrial of appellant’s punishment. Appellant’s burglary conviction occurred prior to his punishment retrial and constituted a “final conviction in a court of record.” As such, the intervening conviction was admissible upon retrial of the punishment phase under article 44.29(b) as “other evidence as permitted by section 3 of article 37.07(a) of this code.”

Id. at 722 (citations omitted).

We adopt the reasoning of Sanders and hold that the trial court did not err in admitting and considering Eggins’ intervening March 9 convictions. Eggins’ sole point of error is overruled, and the trial court’s judgment is affirmed.

Footnotes

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OPINION

HICKS, Justice.

Appellant, Larry Keith Eggins, appeals his thirty-six year sentence, alleging the trial court improperly admitted and considered evidence of his prior criminal history. We affirm.

On June 22, 1989, a jury convicted Eggins of delivery of a controlled substance, namely cocaine, less than twenty-eight grams, and assessed punishment at fifty-one years. Nine months later, on March 9, 1990, Eggins pled guilty to two charges of possession of a forged check and possession of a controlled substance.

On August 21, 1991, this court reversed and remanded Eggins’ June 22 delivery conviction for a new punishment trial.¹ At the punishment retrial, the State introduced the March 9 convictions, which the trial court admitted over defense counsel’s objections.

Eggins argues the trial court improperly admitted the March 9 convictions under TEX.CODE CRIM.PROC.ANN. art. 37.07, § 3(a) (Vernon Supp.1993) because they were not final prior to the original trial, citing TEX.CODE CRIM.PROC.ANN. art. 44.29(b) (Vernon Supp.1993);² and TEX.R.APP.P. [207]*20787(b)(2).³

The Austin Court of Appeals addressed this issue in Sanders v. State, 832 S.W.2d 719 (Tex.App.—Austin 1992, no pet.) (citing Carter v. State, 813 S.W.2d 746 (Tex.App.—Houston [1st Dist.] 1991, no pet.)). In Sanders, the appellant was convicted of aggravated sexual assault on August 14, 1987, and six days later he pled guilty to burglary of a habitation. Id. at 720-21. At his retrial on punishment in the aggravated sexual assault case, appellant argued that the court erred in allowing the burglary conviction to be used as a “prior conviction.” The court disagreed stating:

We hold that the term “prior criminal record” includes a final conviction occurring “prior” to the date of the retrial of appellant’s punishment. Appellant’s burglary conviction occurred prior to his punishment retrial and constituted a “final conviction in a court of record.” As such, the intervening conviction was admissible upon retrial of the punishment phase under article 44.29(b) as “other evidence as permitted by section 3 of article 37.07(a) of this code.”

Id. at 722 (citations omitted).

We adopt the reasoning of Sanders and hold that the trial court did not err in admitting and considering Eggins’ intervening March 9 convictions. Eggins’ sole point of error is overruled, and the trial court’s judgment is affirmed.

Footnotes

Eggins v. State, 860 S.W.2d 206, 1993 Tex. App. LEXIS 2356, 1993 WL 317840 (Tex. Ct. App. 1993).

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Opinion

Footnotes

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