Jernigan v. State

706 S.W.2d 813, 1986 Tex. App. LEXIS 12596
CourtCourt of Appeals of Texas
DecidedApril 9, 1986
DocketNo. 2-84-110-CR
StatusPublished
Cited by6 cases

This text of 706 S.W.2d 813 (Jernigan v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jernigan v. State, 706 S.W.2d 813, 1986 Tex. App. LEXIS 12596 (Tex. Ct. App. 1986).

Opinion

OPINION

ASHWORTH, Justice (Retired, Sitting by Assignment).

Appellant was charged by indictment with the offense of aggravated kidnapping, conduct proscribed by TEX.PENAL CODE ANN. sec. 20.04(a)(3) and (5) (Vernon 1974) (abduction with intent to facilitate flight after attempt to commit and commission of a felony — i.e., burglary of a habitation— and with intent to terrorize the victim of the kidnapping). This conduct is made punishable as a first or second degree felony depending on whether the victim was or was not voluntarily released by the defendant in a safe place. TEX.PENAL CODE ANN. sec. 20.04(b) (Vernon 1974). The indictment also alleged two prior felony convictions for the purposes of enhancement pursuant to TEX.PENAL CODE ANN. sec. 12.42(d) (Vernon Supp.1986).

Trial was to the jury which found appellant guilty of aggravated kidnapping as alleged in the indictment. However, it also found that the victim of the kidnapping, Vivian Kiser, was voluntarily released by the appellant in a safe place. Having found that both of the enhancement paragraphs contained in the indictment were true, the jury assessed appellant’s punishment as confinement in the Texas Department of Corrections for life.

We affirm.

In ground of error one, appellant contends that the trial court erred in failing to hold a hearing on appellant’s speedy trial motion.

[815]*815The record originally before this court showed that appellant was arrested on January 8, 1983, for the instant crime which occurred on that date. In September of 1983, the indictment was returned and the State announced ready. Appellant was in continuous custody on this case since January 8, 1983. No waivers are reflected in the record. Appellant filed a timely motion to dismiss on speedy trial grounds, which was denied.

In its brief, the State argues that the instant indictment was actually the second reindictment of the aggravated kidnapping charge against the appellant and that he was also indicted for and convicted of another offense arising out of the present transaction. However, the record originally before this court did not reflect the other indictment and conviction. This court abated the appeal and remanded the cause to the trial court for a hearing on appellant’s speedy trial motion. Such hearing has been held and the motion denied. A supplemental transcript, statement of facts, and findings of fact and conclusions of law by the trial court are now part of the record before this court.

We restate in this opinion the first nine findings of fact by the trial court as to the speedy trial hearing:

1. The defendant was arrested January 8, 1983, and kept in continuous custody until the date of trial.
2. The defendant was first indicted for the offense of Aggravated Kidnapping in cause No. F83-84005-UR. Said indictment was filed February 7, 1983.
3. The State filed announcements of ready in cause No. F83-84005 on February 11, 1983 and on March 23, 1983.
4. The defendant was reindicted for the same offense in cause No. F83-97744-UR.
5. The State announced ready for trial in cause No. F83-97744-UR on March 23, 1983.
6. The defendant was again reindicted for the same offense in cause No. F83-96689-KRH. It was upon this indictment that the defendant was ultimately tried.
7. The State announced ready for trial in cause No. F83-96689-KRH on September 26, 1983.
8. Each of the indictments were for the same crime. The reindictments were all for the same case.
9. The State’s announcement of ready in cause number F83-84005-UR, dated February 7, 1983, was within the statutory 120 day time period and applied to reindictments numbers F83-97744-UR and F83-96689-KRH, which were the same case. See, Perez v. State, 678 S.W.2d 85 (Tex.Crim.App.1984).

We adopt the conclusion of the trial court that the State made a prima facie showing of ready within the statutory time period, Phillips v. State, 659 S.W.2d 415, 419 (Tex.Crim.App.1983), and the appellant failed to adduce any evidence to rebut the showing of readiness. Smith v. State, 659 S.W.2d 828, 830 (Tex.Crim.App.1983). Appellant has been afforded his right to a hearing on his speedy trial motion. There was no error by the trial court in denying such motion after such hearing. Appellant’s first ground of error is overruled.

In ground of error two, appellant contends that the evidence is insufficient to prove the first enhancement paragraph of the indictment because the pen packet, introduced as evidence of the convictions found in the first enhancement paragraph, failed to indicate that it came from the District Court of Tarrant County as alleged in the first enhancement paragraph.

The facts pertinent to this ground of error are as follows. The first enhancement paragraph of the indictment alleged that the appellant was convicted of burglary on June 14, 1972 in the Criminal District Court No. 1 of Tarrant County, Texas, in Cause No. 863513. In support of this allegation the State offered State’s exhibit no. 24, a pen packet which apparently contained a copy of only one side of the judgment and sentence form utilized in that case. The other side of the judgment and sentence, listing the cause number (86353), [816]*816the court (Criminal District Court No. 1 of Tarrant County) and the style of the case (State of Texas v. Jerry Marcus Jernigan), was not included in the exhibit because it was apparently not photocopied when this pen packet (State’s exhibit no. 24) was prepared by the custodian of records at the Texas Department of Corrections.

At the time State’s exhibit no. 24 was offered, this defect was noted by appellant’s counsel who initially objected to the admission of State’s exhibits nos. 23-25 on the ground that, as to the Tarrant County convictions evidenced in those penitentiary packets, the judgments and sentences did not indicate “what court if any heard the case.” The trial judge overruled appellant’s objections to the pen packet stating the following:

On the record, Mr. Perry [court reporter], with the jury still absent from the courtroom and the defendant — with the jury still absent from the courtroom, the Court is going to overrule the defense objections to Exhibits 23, 24 and 25, subject to an offer of proof to be made by the State at a point later in time regarding the back side of the judgment and sentences, the actual document of the pages of the judgment and sentences from Tarrant County which, as we have seen photocopies of during recess, do properly reflect that those judgments and sentences emanated from the Criminal District Court No. 1 of Tarrant County, Texas.
We have kept the jury waiting a little over an hour on this, and rather than delay the trial another day on a matter which apparently the State would prove up outside the presence of the jury satisfactorily, we’re proceeding in this manner with the agreement of defense counsel,

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Bluebook (online)
706 S.W.2d 813, 1986 Tex. App. LEXIS 12596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jernigan-v-state-texapp-1986.