Laday v. State

685 S.W.2d 651, 1985 Tex. Crim. App. LEXIS 1402

• Court: Court of Criminal Appeals of Texas
• Decided: January 9, 1985
• Docket: 399-84
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This is an appeal from a conviction for burglary of a building pursuant to V.T.C.A. Penal Code, § 30.02(A)(1). Punishment, enhanced by proof of one prior felony conviction for aggravated assault, was assessed by the jury at 30 years confinement in the Texas Department of Corrections.

On February 29, 1984, the Beaumont Court of Appeals reversed the judgment of the trial court and ordered the cause remanded for a new trial. The court of appeals held that the State had failed to prove that appellant was the identical person who had previously been convicted of burglary of a building in Cause No. 37774 on March 4, 1980. Laday v. State, 685 S.W.2d 681 (Tex.App.—Beaumont, 1984). At the punishment phase of appellant’s trial, the judgment and sentence in Cause No. 37774 were admitted into evidence to show the appellant’s prior criminal record in accordance with Art. 37.07, § 3, V.A.C.C.P. The court of appeals held that there was no proof that appellant and the person named in the judgment and sentence were the same individual. Further, the court of appeals held that, even though there was no trial objection complaining of the failure to introduce identification evidence, such error was fundamental and required reversal.

In its petition for discretionary review, the State for the first time indicates that the record shows that the appellant and the person named in the judgment and sentence in Cause No. 37774 are the same individual.¹

The record reflects that the appellant took the witness stand and testified in his own behalf at the guilt-innocence stage of trial. During cross examination by the prosecuting attorney, the following colloquy occurred:

“Q. Mr. Laday, I want to make sure that you are the same Robert Lee Laday, who was finally convicted in Cause Number 36820, in the 252nd District Court of Jefferson County, Texas, on March fourth, Nineteen-eighty, for the offense of Burglary of a Building?

“A. Yes, sir.

“Q. And are you, also, the same Robert Lee Laday who was finally convicted in Cause Number 37774, in the 252nd District Court of Jefferson County, Texas, on March fourth, Nineteen-eighty, for the offense of Aggravated Assault?

“A. Well, I was convicted to serve those two cases running “CC”, yes, sir. “Q. Okay. You got sentences to run concurrent?

“A. Yes, sir.

“Q. But you are the same person finally convicted in each of those Cause Numbers?

“A. Yes, sir.”²

This Court has approved several different methods by which it may be proved that a defendant is the same person previously convicted. See, Daniel v. State, 585 S.W.2d 688, 690-91 (Tex.Cr.App.1979). One such method is a judicial admission of the defendant that he has been so convicted. Daniels, supra; Davison v. State, 510 S.W.2d 316 (Tex.Cr.App.1974); Beard v. State, 458 S.W.2d 85 (Tex.Cr.App.1970).

We find that appellant’s judicial admission at the guilt-innocence stage of trial is sufficient to prove he was the same individual named in the judgment and sentence in Cause Number 37774. Having so held, we need not consider whether the lack of such proof constitutes “fundamental error.” ³

The judgment of the court of appeals is reversed and the cause is remanded for consideration of appellant’s other grounds of error.

1 . The sole issue presented to the court below both on original submission and on the State’s Motion for Rehearing was whether the appellant had sufficiently - preserved the error for review. Neither party pointed the court to the appellant's judicial admission at the guilt-innocence phase of trial.

2 . Even though the prosecuting attorney inadvertently got the cause numbers backwards when cross examining the appellant, we find that the appellant’s affirmative reply to the question whether he was "the same person finally convicted in each of those Cause Numbers” [37774 and 36820] was sufficient to show appellant was the same person previously convicted in each. See, Davison v. State, 510 S.W.2d 316 (Tex.Cr.App.1974).

3 .This phraseology was used by the court of appeals in the context of the necessity of objecting (to the failure to introduce this type of evidence) in order to preserve error. Compare Jackson v. State, 493 S.W.2d 158 (Tex.Cr.App.1973) (sustaining defendant’s objection to the lack of identification evidence sufficient to cure error) with Smith v. State, 489 S.W.2d 920 (Tex.Cr.App.1973) (overruling defendant’s objection to the lack of identification evidence constituted reversible error).