Joseph v. State

367 S.W.2d 330, 1963 Tex. Crim. App. LEXIS 859

• Court: Court of Criminal Appeals of Texas
• Decided: March 27, 1963
• Docket: 35559
• Status: Published

Opinions

DICE, Commissioner.

The conviction is for nighttime burglary of a private residence, with a prior conviction of an offense of like character alleged for enhancement; the punishment, ninety-nine years in the penitentiary.

No statement of facts of the evidence adduced upon the trial accompanies the record.

Appellant’s sole contention on appeal is that the jury’s verdict is insufficient to support the judgment rendered thereon by the court.

The indictment charged, in separate paragraphs, that on or about the 24th day of January, 1962, appellant committed the primary offense of burglary of a private residence at night and that prior to the commission of the said offense he was finally convicted in the Criminal District Court of Jefferson County on the 20th day of December, 1957, of the offense of burglary with intent to commit theft, an offense of like character.

Both the issues as to appellant’s guilt of the primary offense of burglary and as to whether he had previously been convicted of the offense of like character were submitted to the jury.

Under the instructions given by the court in his charge, the jury returned the following verdict:

“We, the jury, find the defendant guilty of the offense of Nighttime Burglary of a Private Residence, and we further find that he has heretofore been convicted of a felony less than capital.”

Upon such verdict, judgment was rendered by the court, adjudging appellant guilty of the offense of nighttime burglary of a private residence and repetition and fixing his punishment at confinement in the penitentiary for ninety-nine (99) years. Sentence was pronounced upon appellant in accordance with such judgment.

Art. 1391, Vernon’s Ann.P.C., prescribes the punishment for burglary of a private .residence at night at confinement in the penitentiary “for any term not less than five years.”

Aft. 62, V.A.P.C., provides that upon a subsequent conviction for a felony less than capital the punishment shall be the highest affixed to the commission of such offense in ■ordinary cases.

Under this court’s decision in Brown v. State, 346 S.W.2d 842, the trial court was authorized to fix appellant’s punishment, upon the jury’s verdict, at confinement in the penitentiary for ninety-nine years.

We are unable to agree with appellant that the verdict was insufficient to support the judgment rendered thereon, under Art. 62, supra, because it did not find that appellant had been convicted of an offense of like character as required by the statute. The verdict, when read in connection with the indictment and court’s charge, clearly ■shows the jury’s intention to find appellant ■guilty of the primary offense and that he had been previously convicted of the offense iof like character alleged in the indictment.

The judgment is affirmed.

Opinion approved by the Court.