Kucha v. State

686 S.W.2d 154, 1985 Tex. Crim. App. LEXIS 1404

• Court: Court of Criminal Appeals of Texas
• Decided: March 6, 1985
• Docket: 201-82
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

The question of “fundamental error” is before us yet again. The instant case presents an instance for application of the principles of fairness espoused in Almanza v. State, 686 S.W.2d 157 (delivered February 27,1985). Appellant was charged by indictment with the offense of aggravated robbery, enhanced under V.T.C.A. Penal Code, Sec. 12.42(b), by allegations of two prior convictions. A jury found appellant guilty of the lesser offense of robbery and assessed punishment at twenty-seven years’ confinement.

The Waco court of appeals held that nothing was presented for review because appellant did not object to the charge. See Kucha v. State, 627 S.W.2d 238 (Tex.App. —Waco 1981). We granted appellant’s petition for discretionary review to consider the court of appeals’ holding that the error is not fundamental.

Appellant pled “not true” to the enhancement allegations. The State used a pen packet and a fingerprint expert to prove those allegations. The court charged the jury that:

If you believe from the evidence beyond a reasonable doubt that prior to the commission of the offense for which you have found him guilty he was convicted as alleged in the indictment of either of the offenses; that is, robbery by firearms in cause number 177,592 or 177,594, in Harris County, Texas, on June 15, 1972, you will assess his punishment at confinement in the Texas Department of Corrections at not less than 5 years nor more than 99 years or life, and in addition thereto you may assess a fine not exceeding $10,000.

Appellant contends that the charge is fundamentally defective because it fails to instruct the jury regarding the entire range of punishment, directs a verdict of “true” to the enhancement paragraph, constitutes a comment on the weight of the evidence, and shifts the burden of proof on the enhancement paragraph to appellant.

Appellant’s plea of “not true” forced the State to prove the enhancement allegations beyond a reasonable doubt. The charge instructed the jury on the range of punishment if they found the enhancement allegations to be true,¹ but did not instruct them on the range of punishment if they found the same to be untrue.²

The verdict form did not specify whether the jury found the allegations to be true or untrue. The form stated:

We, the jury, having found the defendant guilty, assess his punishment at confinement in the Texas Department of Corrections for_

We agree with appellant that the charge was erroneous because it did not instruct the jury on the range of punishment if they found the enhancement allegations to be untrue. Our next step is to determine if this error is so harmful that appellant has not had a fair and impartial trial. Almanza, supra.

We will review his contention according to the guidelines and standard set out in Almanza, supra, — that is, whether the error was “so egregious and created such harm that [appellant] ‘has not had a fair and impartial trial.’ ” Almanza at p. —. Harm must be determined from the entire record, not only the erroneous charge.

The record of the punishment hearing held before the jury, shows that the State proved, through the use of a pen packet and fingerprint expert, that appellant had been previously convicted. Appellant’s sole objection to this proof was that the pen packet was not properly certified and authenticated.

During argument at the punishment stage, appellant’s counsel stated:

The Court has charged you [the jury] with what the punishment can be assessed at, five years to ninety-nine years or life. He [appellant] is a second offender. That is to say that he has pleaded guilty to charges, prior to this time, in 1972.

Appellant’s counsel continued to argue essentially that the jury should give no penalty because the evidence in the case was insufficient to prove that appellant committed a robbery.

The charge must be considered in light of this evidence. The fact of the prior convictions was not a contested issue at all. Appellant’s plea of “not true” only put the State to its proof. Considering that the evidence of the prior convictions was undisputed, uncontradicted, and seemed to have been taken almost as a “given” by the parties, we hold that the failure of the court to charge on the range of punishment if the enhancements were found to be untrue, was not so harmful that it deprived appellant of a fair and impartial trial. If the evidence of the prior conviction had not been so strong, or if appellant had contested it in some fashion, this issue would not be so clearcut. But, from the record it appears that all parties, including appellant, assumed the fact of the prior conviction and did not dispute its truth. Also, the prior was proven beyond a reasonable doubt by the State. In light of the record we hold that the error was not fundamental.

We also disagree with appellant that the charge as given instructed a verdict of “true” or constituted a comment on the weight of the evidence. The jury was instructed “If you believe....” (emphasis added) either of the enhancement paragraphs to be true you will assess the punishment. Compare Choice v. State, 164 Tex.Cr.R. 224, 298 S.W.2d 148 (Tex.Cr.App.1957) in which the court did not preface the charge with such a phrase. In addition, the defendant in Choice timely objected to the charge. The judgment of the court of appeals is affirmed.

1 . Not less than 5 years nor more than 99 years or life. V.T.C.A. Penal Code, Sec. 12.42(b).

2 . Not less than 2 years nor more than 20 years. V.T.C.A. Penal Code, Sec. 12.32.