Harrison v. State

168 S.W.2d 243, 145 Tex. Crim. 386, 1943 Tex. Crim. App. LEXIS 756

• Court: Court of Criminal Appeals of Texas
• Decided: January 6, 1943
• Docket: No. 22344
• Status: Published

Opinions

DAVIDSON, Judge.

This is a conviction under Art. 63, P. C., commonly known as the habitual criminal statute. The punishment affixed is life imprisonment in the penitentiary.

Said Article reads as follows:

“Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.”

The two previous convictions relied upon in the instant case were alleged to have occurred in 1932 and 1935, respectively. With reference to the second conviction, the indictment fails to allege that the offense for which the appellant was then convicted was committed subsequent to the conviction in 1932, or the first conviction.

For the State to invoke the provisions of Art. 63, P. C., it is necessary that each succeeding conviction be subsequent to the previous conviction, both in point of time of the commission of the offense as well as the conviction therefor. The indictment must so allege. Ellis v. State, 115 S. W. (2d) 660, 134 Tex. Cr. R. 346; Childress v. State, 116 S. W. (2d) 396, 134 Tex. Cr. R. 504; Gammill v. State, 117 S. W. (2d) 790, 135 Tex. Crim. Rep. 52; Mullins v. State, 144 S. W. (2d) 565, 140 Tex. Cr. R. 261; Square v. State, 154 S. W. (2d) 852, 142 Tex. Cr. R. 493.

An approved form of indictment covering prosecutions under Art. 63, P. C., will be found in the Childress case.

The indictment being insufficient to support a conviction as an habitual criminal, appellant’s objection to the submission thereof to the jury should have been sustained.

The judgment is reversed and the cause remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.