Johnson v. State

725 S.W.2d 245, 1987 Tex. Crim. App. LEXIS 525

• Court: Court of Criminal Appeals of Texas
• Decided: February 25, 1987
• Docket: 1218-85
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

A jury convicted appellant of unauthorized use of a motor vehicle, found the enhancement allegation to be true, and assessed punishment at confinement in the Texas Department of Corrections for fifteen years. The Court of Appeals for the Second Supreme Judicial District reversed appellant’s conviction, holding that the State failed to prove a prima facie case as to the validity of the prior conviction used for enhancement. The Court held that the evidence showed a void conviction because it showed appellant was a juvenile and did not show a valid transfer order to the district court. Johnson v. State, 697 S.W.2d 507 (Tex.App.-Ft. Worth 1985). We granted the State’s petition for discretionary review to determine whether the State had the burden of proof to show a valid transfer order in order to prove a prior conviction, or whether appellant had that burden when he collaterally attacked the prior conviction.

At trial appellant objected that the prior conviction was void because he was a minor at the time he committed the prior offense and a proper order transferring the case from juvenile court to an adult felony court was not included in the “pen packet” which the State introduced into evidence. See V.T.C.A. Penal Code, Sec. 8.07 and V.T. C.A. Fam.Code, Sec. 54.02. The enhancement paragraph alleged and the pen packet showed that appellant was convicted of burglary in August, 1983. They also showed appellant’s date of birth to be 2-23-67. By this showing appellant was a juvenile at the time of conviction for the prior offense. The Court of Appeals held that since the record shows that appellant was a juvenile at the time of the prior conviction and the record does not show a transfer order giving the district court jurisdiction over appellant, the State did not make a prima facie showing of a valid prior conviction despite the inclusion of a valid judgment and sentence.

The State contends that Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1983) (opinion on rehearing) is directly on point and supports their contention that appellant has the burden to show there was not a valid transfer order since he is the party collaterally attacking the conviction. In Hankins, supra, the defendant attacked the admission of prior out-of-state convictions introduced at the guilt-innocence phase of trial, contending that he was fifteen at the time of conviction and that the record contained no certification from juvenile court to adult felony court. Appellant offered no evidence in support of his contention. We held that in this collateral attack the burden of proof was upon the petitioner and that since the defendant did not offer any proof of his contention that the convictions were void, the convictions were valid upon the State’s proof.

The State also cites Acosta v. State, 650 S.W.2d 827 (Tex.Cr.App.1983) as authority. In Acosta, supra, the State alleged two prior out-of-state convictions for enhancement and introduced judgments which showed convictions upon informations. The defendant contended that there was no waiver of indictment shown and, therefore, the convictions were void since they were based upon informations. We discussed and relied upon Hankins, supra, to hold that the burden was upon the defendant to demonstrate that the prior convictions were void. He did not introduce any evidence to support his contention. Further, as Presiding Judge Onion stated in his concurring opinion, 650 S.W.2d at 834, “[T]he judgments, sentences and pen packets were properly certified and appellant was identified with them by expert fingerprint testimony. The proof was in conformity with the enhancement allegations in the indictment that the prior convictions were upon informations. Once the State made a pri-ma facie case the burden shifted to the appellant to show that the prior convictions were void because of lack of a waiver of the indictment in each case.”

Both Hankins, supra, and Acosta, supra, are dispositive of the issue before us. The Court of Appeals’ “distinctions” of the cases from the instant case are, as the State points out, “legally meaningless.” Whether a collateral attack alleging a conviction is void is voiced at the guilt-innocence phase or at the punishment phase does not change the burden upon the party challenging the prior conviction, nor the proof necessary to show a valid prior conviction. Nor does it matter that the challenge is made to use of a prior conviction for enhancement as in Acosta, supra, or for some other purpose like impeachment, cf. Hankins, supra.

The State establishes a prima fa-cie case of proof of a prior conviction by introducing copies of the judgment and sentence in each case used for enhancement and connecting them with the defendant. Smith v. State, 683 S.W.2d 393 (Tex.Cr.App.1984); Tinney v. State, 578 S.W.2d 137 (Tex.Cr.App.1979). Acosta, 650 S.W.2d at 834, Onion, J., concurring. In the instant case the State introduced a pen packet containing a judgment, sentence, and fingerprints which were connected to appellant at trial. This evidence indicates the resulting sentence is regular on its face. As appellant points out, the evidence also indicates that appellant was a juvenile and, thus, a transfer order would have been required to give the district court jurisdiction. However, this is exactly like Acosta, supra, and Smith, supra, where the evidence on its face — the judgments and sentences — showed convictions based upon in-formations and no evidence showing waivers of indictment. Once the State properly introduces a judgment and sentence and identifies appellant with them, we presume regularity in the judgments. The burden then shifts to the defendant, who must make an affirmative showing of any defect in the judgment, whether that be to show no waiver of indictment or no transfer order. Smith, supra; Acosta, supra; Han-kins, supra.

In the instant case the State made a prima facie showing of a valid prior conviction by introducing into evidence a judgment and sentence and identifying appellant with them. The burden shifted to appellant to affirmatively show a defect which proved the conviction was void as he alleged. No showing was made. The State properly proved a valid prior conviction. Hankins, supra. The judgment of the Court of Appeals is reversed and the judgment of the trial court is affirmed.