Garner v. State

552 S.W.2d 809, 1977 Tex. Crim. App. LEXIS 1083

Opinions

OPINION

PHILLIPS, Judge.

The offense is forgery; the punishment, enhanced under V.T.C.A., Penal Code, Sec. 12.42(d), life.

Appellant’s third ground of error contends the State failed to prove the second prior conviction, alleged for enhancement in the second paragraph of the indictment, was for an offense which occurred subsequent to the first previous conviction, as set forth in the third paragraph of the indictment, having become final. The indictment alleges appellant was convicted of burglary in Robertson County on April 13, 1964, and of burglary in the second degree in Oklahoma County, Oklahoma, on May 27, 1968.

Appellant pleaded not true to the enhancement paragraphs of the indictment and testified at the punishment phase of the trial. Although appellant admitted he had been convicted of burglary in Robertson County in 1964, and of burglary in Oklahoma in 1968, he testified he did not remember the date of commission of either offense.

State’s exhibit two, a prison packet from the Oklahoma State Penitentiary, contains a judgment and sentence of conviction for burglary in the second degree on May 27, 1968, but this instrument does not recite the date of commission of the burglary. Cf. Morgan v. State, Tex.Cr.App., 507 S.W.2d 538. The record does not contain testimony of a peace officer with personal knowledge of the date of the commission of this offense. Cf. McCarter v. State, Tex.Cr.App., 527 S.W.2d 296.

The trial court admitted, over appellant’s timely objection, State’s exhibit five, a copy of an information from Oklahoma County alleging burglary in the second degree. The instrument is certified as a true, correct and complete copy by the court clerk; however, there is no certification that the clerk has legal custody of the writing. See Morgan v. State, Tex.Cr.App., 532 S.W.2d 85. The information was not authenticated in compliance with Art. 3731a, Sec. 4, V.A. T.S., and thus cannot be considered. Since the record does not otherwise show the date the information was filed, the period of limitations for burglary in Oklahoma is not relevant. See Alvarez v. State, Tex.Cr.App., 536 S.W.2d 357; Juarez v. State, Tex.Cr.App., 496 S.W.2d 638; Norris v. State, Tex.Cr.App., 488 S.W.2d 84; Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383.

V.T.C.A., Penal Code, Sec. 12.42(d) requires that the State prove the second previous felony conviction is for an offense that occurred subsequent to the finality of the first prior conviction. See Wiggins v. State, Tex.Cr.App., 539 S.W.2d 142. The State failed to meet this burden of proof. Although the error relates to punishment only, appellant elected to have the jury assess punishment. See Bray v. State, Tex. Cr.App., 531 S.W.2d 633.

For the error stated, the judgment is reversed and the cause remanded.