Human v. State

749 S.W.2d 832, 1988 Tex. Crim. App. LEXIS 48, 1988 WL 25267
CourtCourt of Criminal Appeals of Texas
DecidedMarch 16, 1988
Docket042-86
StatusPublished
Cited by204 cases

This text of 749 S.W.2d 832 (Human v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Human v. State, 749 S.W.2d 832, 1988 Tex. Crim. App. LEXIS 48, 1988 WL 25267 (Tex. 1988).

Opinions

OPINION ON APPELLANT’S MOTION FOR REHEARING

TEAGUE, Judge.

Appellant’s Motion for Rehearing is granted.

The opinions filed in this cause on February 3, 1988 are hereby ordered withdrawn and the following is substituted therefor.

To vest jurisdiction in the district court and to establish that James Daniel Human, hereinafter appellant, had committed the felony offense of driving while intoxicated, the State alleged in the indictment the following: that (1) appellant committed the primary offense of driving while intoxicated, (2) he had previously been twice finally convicted of committing the felony offense of driving while intoxicated, and (3) the first alleged prior felony conviction had become final before he was convicted of the last alleged prior felony conviction. See Art. 6701Z-1, V.A.C.S. Also see and compare V.T.C.A., Penal Code, § 12.42(d), and the cases collated thereunder, which concern pleading and proof regarding prior felony convictions alleged to enhance the punishment of an “habitual” criminal to a minimum of 25 years’ confinement and not [834]*834more than 99 years’ confinement or life imprisonment in the Department of Corrections.

The jury found appellant “guilty of Driving While Intoxicated, as charged in the indictment.” This effectively convicted appellant of the felony offense of driving while intoxicated. Punishment was also assessed by the jury at one year confinement in the Ellis County Jail and a $2,000.00 fine.

On direct appeal, appellant, through counsel, presented to the Waco Court of Appeals four points, nee grounds, of error, to-wit: “1. The admissible evidence is insufficient to prove the first prior conviction alleged in the indictment; 2. The admissible evidence is insufficient to prove the second prior conviction alleged in the indictment; 3. Because the evidence is insufficient to prove both the prior convictions alleged in the indictment, this court must reverse the judgment and order entry of judgment of acquittal; 4. The court erred in admitting State’s exhibit one, which contained evidence of extraneous acts of misconduct”. In an unpublished opinion, the Court of Appeals sustained appellant’s first two points of error and reversed. See Human v. State, (Tex.App.-10th, No. 10-84-177-CR, November 7, 1985).

As previously pointed out, the State charged appellant with committing the primary offense of driving while intoxicated. In order to vest the district court with jurisdiction, the State also alleged in one paragraph of the indictment that on March 20, 1979 appellant was convicted in the 204th Judicial District Court of Dallas County in cause number F-78-8690-IQ of the felony offense of driving while intoxicated, and alleged in another paragraph of the indictment that after the 1979 conviction had become final, on November 7, 1980, appellant was convicted in the 195th Judicial District Court of Dallas County in cause number F-80-11997-MN of the felony offense of driving while intoxicated. Having made these allegations against appellant, it was, of course, incumbent upon the State to prove its allegations beyond a reasonable doubt. See, for example, Littles v. State, 726 S.W.2d 26, 28 (Tex.Cr.App.1984).

In deciding the question of sufficiency of the evidence that is based either on direct or circumstantial evidence that relates to guilt, this Court views the evidence in the light most favorable to the jury’s verdict. We consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, which test was adopted from Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Burks v. State, 693 S.W.2d 932, 937 (Tex.Cr.App.1985).1 Where the State’s case is based upon circumstantial evidence, the “exclusion of an outstanding reasonable hypothesis” test may be used as one means of making the determination whether the evidence is sufficient. See, for example, Garrett v. State, 682 S.W.2d 301, 304 (Tex.Cr.App.1984). In that instance, “ ‘if the evidence supports an inference other than the guilt of the appellant, then a finding of guilt beyond a reasonable doubt is not a rational finding.’ ” Garrett, supra, at 304-305, quoting from Denby v. State, 654 S.W.2d 457, 464 (Tex.Cr.App.1983). Also see Wilford v. State, 739 S.W.2d 854, 858-859 (Tex.Cr.App.1987); Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983).

We have not yet found any good reason why the above rules should not be applied to the situation where the State has alleged prior convictions, either for jurisdictional purposes or to enhance punishment. Therefore, we will apply them to those situations.

In this instance the State’s case, to prove its prior conviction allegations, was based upon circumstantial evidence. The Court of Appeals held that the evidence was insufficient to establish that appellant was one and the same person named in the prior conviction allegations, reversed the trial court’s judgment, entered a judgment of acquittal as to appellant being convicted of a felony offense, and instructed the trial [835]*835court to transfer the cause to a court having jurisdiction over the misdemeanor offense of driving while intoxicated. See Human v. State, supra. As to the latter, this amounted to sustaining appellant’s third point of error. However, we do not find where the Court of Appeals ruled on appellant’s fourth point of error. In order to eliminate the necessity of remanding this cause to the Court of Appeals, we will address that point of error, and overrule it.

We granted the State’s petition for discretionary review in order to make the determination whether the Court of Appeals correctly decided appellant’s contentions. Finding that it did not, we will reverse its judgment and affirm the judgment of the trial court.

As previously pointed out, the State alleged that appellant committed the primary offense of driving while intoxicated, and also alleged in two paragraphs, for jurisdictional purposes, that on March 20, 1979, appellant had been convicted in the 204th Judicial District Court of Dallas County in cause number F-78-8690-IQ of the felony offense of driving while intoxicated, and that on November 7, 1980, after the 1979 conviction had become final, appellant was convicted in the 195th Judicial District Court of Dallas County in cause number F-80-11997-MN of the felony offense of driving while intoxicated.

The record reflects that the trial judge instructed the jury on the alleged prior convictions at the guilt stage of the trial, but did not instruct the jury on same at the punishment phase of the trial. In the “application” paragraph of the charge on guilt, the trial judge instructed the jury that it could find appellant guilty of the felony offense of driving while intoxicated only if it found that appellant had committed the alleged primary offense of driving while intoxicated and further found that the State had established that appellant was one and the same person as that named in the alleged prior convictions.

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Cite This Page — Counsel Stack

Bluebook (online)
749 S.W.2d 832, 1988 Tex. Crim. App. LEXIS 48, 1988 WL 25267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/human-v-state-texcrimapp-1988.