Madeley v. State

388 S.W.2d 187

• Court: Court of Criminal Appeals of Texas
• Decided: March 3, 1965
• Docket: 37001
• Status: Published

Opinions

ON STATE’S MOTION FOR REHEARING

McDONALD, Presiding Judge.

Our prior opinions on original submission and on appellant’s motion for rehearing are withdrawn, and this one substituted in lieu of them.

The conviction is for burglary of a private residence at night; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., by reason of two prior convictions for felonies less than capital, life imprisonment.

It was shown by the state’s evidence that the prosecuting witness, Jeanne Douglass, lived in apartment #63 of the Royal Windsor apartments at 5133 Richmond Avenue in the city of Houston. On the night in question the witness retired around midnight, at which time the door to her apartment was closed. Later in the night she awakened and saw a person, who appeared to be a man, leaving the apartment. She got up, locked the door, and proceeded to call the police. While using the telephone, two figures, who looked like a man and a girl, appeared at her door. The witness also observed her purse, which she had placed upon a chair when she retired, lying partially open on the floor. Nothing was missing from the purse. Around 2:30 a. m., Officers Smelley and Reed arrived upon the scene in response to a call. As they approached, the officers observed a car being driven away from the apartments onto Richmond Avenue, and stop. They then proceeded to the vehicle and found the appellant and a girl companion seated therein. The two were placed under arrest.

Following his arrest, appellant, after being duly warned, made and signed a written confession to Officer E. W. LaFont, which was introduced in evidence by the state. In his confession appellant stated, in part, as follows:

“ 'On Wednesday, February 27, 1963, about 2:AM a friend was driving me down Richmond Ave., when I spotted some apartments, and I asked this friend to stop the car and I got out, and went up to these apartments, which are in the 5100 block of Richmond Ave. and started checking doors. At 5133 Richmond Ave. Apt. 63, I found the door unlocked, and went in this apt. through the sliding glass door, and found a purse on a small table next to the bed. I picked this purse up and started out the door when I heard some one drive up, and as I did not want to be caught with this purse in my possession I put the purse down next to the door and left the apt. and returned to the car and left.

“ ‘About 15 minutes later while we were sitting in the car I were arrested by uniform__ officers. We had parked the car at the other end of the block from this apt. * * * ’ ”

In making proof of the two prior alleged convictions, the state offered in evidence certified copies from the records of the Texas Department of Corrections of a judgment and sentence in Cause No. 9114 in the Special 9th District Court of Montgomery County, wherein the defendant was convicted, on September 1, 1952, of the offense of “Forgery-Making &' Passing a False instrument in writing” and a judgment and sentence in Cause No. 79322 in the Criminal District Court of Harris County, wherein the defendant was convicted, on April 5, 1957, of the offense of robbery by assault.

Proof was made by the testimony of an expert witness, who compared appellant’s known fingerprints with those appearing in the prison records, that appellant was the person so convicted in the two cases.

Appellant concedes that the evidence is sufficient to sustain the jury’s verdict finding him guilty of the primary offense, but insists that his punishment as an habitual criminal cannot be sustained because the judgment of conviction in Montgomery County, in 1952, used to enhance his punishment, is void.

We agree with appellant that the Montgomery County sentence did not follow the judgment. The judgment ordered that “he be punished by confinement in the State penitentiary for a term of not less than three years”. The sentence pronounced upon the judgment ordered that appellant be confined in the penitentiary “for a term of not less than Two nor more than Two years.” It is apparent that the sentence did not follow the judgment and could not have been reformed because the judgment entered against appellant in Cause No. 9114 was neither definite nor certain as to punishment assessed and, there being no verdict, was void, under the many decisions of this court. Ex Parte Traxler, 147 Tex.Cr.R. 661, 184 S.W.2d 286; Ex Parte East, 154 Tex.Cr.R. 123, 225 S.W.2d 833; Ex Parte Rodriguez, 167 Tex.Cr.R. 305, 320 S.W.2d 346.

Under the record, appellant stands convicted and his punishment enhanced to life imprisonment by virtue of the prior judgment of conviction, which is void. However, the record shows nothing to impair the prior judgment of conviction in Cause No. 79322 in the Criminal District Court of Harris County. Since appellant was convicted of the primary offense of burglary of a private residence at night and the prior conviction in Harris County was for the offense of robbery by assault, a like offense, under Art. 62, V.A.P.C. Flores v. State, 145 Tex.Cr.R. 134, 166 S.W.2d 706; Farris v. State, 155 Tex.Cr.R. 261, 233 S.W.2d 856, appellant brings himself clearly under the terms of Art. 62 V.A.P.C. Fairris v. State, 171 Tex.Cr.R. 416, 350 S.W.; concurring opinion by Judge Woodley in Gibbb v. State, 169 Tex.Cr.R. 608, 336 S.W.2d 625.

We have construed the maximum punishment for the offense of burglary of a private residence at night to be 99 years by our opinion in Joseph v. State, Tex.Cr.App., 367 S.W.2d 330, and we have also made a similar holding in determining the maximum punishment for the offense of assault to rape with a prior conviction, in Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842.

The applicable punishment for the primary offense being 99 years, which has been determined by this Court to be the maximum under Art. 62, V.A.P.C., the judgment is reformed from life imprisonment to a term of 99 years confinement in the state penitentiary. Dozier v. State, 167 Tex.Cr.R. 84, 318 S.W.2d 80.

As reformed, the judgment is affirmed.