OPINION
JACKSON, Commissioner.
The conviction was for cattle theft; the punishment, assessed by the jury, four (4) years.
In his sole ground of error, appellant complains that the trial court committed reversible error at the punishment stage of the trial by admitting into evidence testimony concerning a previous conviction of the appellant in the absence of proper evidence that the conviction testified to was a valid and final conviction. We agree.
During the punishment stage of the trial, the State introduced into evidence a prior Oklahoma judgment of conviction for cattle theft. DeWayne Cates, a witness at the previous trial, took the stand and identified appellant as the defendant in the Oklahoma proceedings. Said conviction was properly proven, and no complaint is made thereof. For our purposes we will call this the Arnett conviction.
After the State had rested, appellant called Mrs. Morgan, his mother, to the [280]*280stand to testify concerning the hardships and burdens of appellant’s life. During her testimony, Mrs. Morgan admitted that appellant had been previously convicted of cattle theft and had spent approximately fifteen months in the Oklahoma penitentiary. In the cross-examination of Mrs. Morgan, the State’s attorney first asked her if her son had been convicted of cattle theft in Oklahoma more than one time. Mrs. Morgan answered, “No, Sir.” The prosecutor then asked if she knew anything about a second, prior trial that took place in Buffalo, Oklahoma. Mrs. Morgan stated that she knew about it but had not been present. When asked if she knew the results of that trial, she said she' really didn’t know what the results were and then voluntarily added, “I know they brought up three different things on one group of cattle, and had him staying in three different places, which looked like it was very unfair.” The State asked no further questions of Mrs. Morgan. Neither the State nor the appellant objected to any part of her testimony.
At the conclusion of Mrs. Morgan’s testimony, the State recalled DeWayne Cates who testified that he had been a witness at the Buffalo trial and that appellant had been the defendant. Appellant’s counsel then made the following objection:
“Your Honor, we are going to object to this line of questioning unless counsel has any authenticated copies of judgments of convictions, or anything in that regard.”
The State’s attorney admitted that he did not have any such authenticated judgment but urged that the questions were proper in view of the answers given by Mrs. Morgan. Appellant’s objection was overruled, and Cates was permitted to testify that appellant had been found guilty of cattle theft at the Buffalo trial and that the jury had sentenced appellant to three years. Cates also denied that the Buffalo trial had involved the same offense as that involved in the Arnett conviction. No further questions were asked. It is this testimony that appellant complains of.
Appellant’s objection was directed to the failure of the State to prove that appellant had been convicted of any crime as a result of the Buffalo trial. It was the same as saying, “We object to this inquiry into the proceedings at Buffalo, unless the State is able to offer and does offer some satisfactory proof that the trial resulted in a final conviction.”
"Article 37.07, subd. 3(a), Vernon’s Ann.C.C.P., authorizes the State to offer evidence of the prior criminal record of the defendant at the punishment stage of the trial. The statute defines the term “prior conviction” as meaning “a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any conviction material to the offense charged.” Admissible evidence of a defendant’s prior criminal record, under the statute, is limited to proof of final convictions.
We construe the term “conviction,” as used in Article 37.07, to contemplate something more than a jury’s verdict and assessment of punishment. No conviction, final or otherwise, has resulted until the trial court has entered judgment and sentenced the defendant, where sentences are required. Absent a showing that a conviction has resulted, the question of finality of the conviction is not reached.
The State urges that the testimony of Cates, either alone or in conjunction with Mrs. Morgan’s testimony, properly establishes a prior final conviction. The testimony of Cates shows no more than that the Buffalo jury returned a verdict of guilty and assessed the punishment at three years. There is no evidence that the trial court entered judgment and sentenced appellant. It is true that Mrs. Morgan testified that appellant had been confined to the Oklahoma penitentiary some fifteen months for cattle theft, but at the time she so testified only the Arnett conviction was [281]*281before the court. No mention had been made of any alleged conviction at Buffalo. The natural inference is that Mrs. Morgan was speaking of the results of the Arnett conviction. There is nothing in the record to connect her testimony about appellant’s imprisonment with the trial at Buffalo. Mrs. Morgan’s testimony to the effect that she knew of the trial at Buffalo but did not know the result in no way connected the two. Such testimony was no evidence at all that appellant had actually been convicted at Buffalo.
Even if proof of a jury’s verdict of guilty were sufficient to show that appellant had been previously convicted, without a showing that he had been sentenced, there would be no proof of the finality of that conviction. In White v. State, 171 Tex.Cr.R. 683, 353 S.W.2d 229, we said:
“In a felony case, the sentence is the final judgment of conviction, without which there is no final conviction . We know of no way to show a final judgment in a felony case other than to also show the sentence.”
In that case we defined “sentence” by quoting old Article 737, V.A.C.C.P. The same definition presently, appears substantially unchanged in Article 42.02, V.A.C.C. R:
“A 'sentence’ is the order of the court in a felony or misdemeanor case made in the presence of the defendant and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law.”
In White, the State had introduced certified copies of prior judgments at the punishment stage of the trial for purposes of enhancement. The court held that, without proof that the defendant had actually been sentenced, there was no showing that a final conviction had resulted, and the evidence of the prior conviction was, therefore, inadmissible. There is no reason why the same rule that applies to proof of a prior conviction for enhancement purposes should not apply also where the State is seeking to prove a prior conviction as part of a defendant’s criminal record under the provisions of Article 37.07, V.A.C.C.P.
Though a judgment and sentence are two distinct and separate things, the sentence must be based on a judgment and without a judgment the court is not authorized to sentence the defendant. Scott v. State, Tex.Cr.App., 461 S.W.2d 619; Horn v. State, 117 Tex.Cr.R. 22, 35 S.W.2d 145.
The one stands upon the other.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
JACKSON, Commissioner.
The conviction was for cattle theft; the punishment, assessed by the jury, four (4) years.
In his sole ground of error, appellant complains that the trial court committed reversible error at the punishment stage of the trial by admitting into evidence testimony concerning a previous conviction of the appellant in the absence of proper evidence that the conviction testified to was a valid and final conviction. We agree.
During the punishment stage of the trial, the State introduced into evidence a prior Oklahoma judgment of conviction for cattle theft. DeWayne Cates, a witness at the previous trial, took the stand and identified appellant as the defendant in the Oklahoma proceedings. Said conviction was properly proven, and no complaint is made thereof. For our purposes we will call this the Arnett conviction.
After the State had rested, appellant called Mrs. Morgan, his mother, to the [280]*280stand to testify concerning the hardships and burdens of appellant’s life. During her testimony, Mrs. Morgan admitted that appellant had been previously convicted of cattle theft and had spent approximately fifteen months in the Oklahoma penitentiary. In the cross-examination of Mrs. Morgan, the State’s attorney first asked her if her son had been convicted of cattle theft in Oklahoma more than one time. Mrs. Morgan answered, “No, Sir.” The prosecutor then asked if she knew anything about a second, prior trial that took place in Buffalo, Oklahoma. Mrs. Morgan stated that she knew about it but had not been present. When asked if she knew the results of that trial, she said she' really didn’t know what the results were and then voluntarily added, “I know they brought up three different things on one group of cattle, and had him staying in three different places, which looked like it was very unfair.” The State asked no further questions of Mrs. Morgan. Neither the State nor the appellant objected to any part of her testimony.
At the conclusion of Mrs. Morgan’s testimony, the State recalled DeWayne Cates who testified that he had been a witness at the Buffalo trial and that appellant had been the defendant. Appellant’s counsel then made the following objection:
“Your Honor, we are going to object to this line of questioning unless counsel has any authenticated copies of judgments of convictions, or anything in that regard.”
The State’s attorney admitted that he did not have any such authenticated judgment but urged that the questions were proper in view of the answers given by Mrs. Morgan. Appellant’s objection was overruled, and Cates was permitted to testify that appellant had been found guilty of cattle theft at the Buffalo trial and that the jury had sentenced appellant to three years. Cates also denied that the Buffalo trial had involved the same offense as that involved in the Arnett conviction. No further questions were asked. It is this testimony that appellant complains of.
Appellant’s objection was directed to the failure of the State to prove that appellant had been convicted of any crime as a result of the Buffalo trial. It was the same as saying, “We object to this inquiry into the proceedings at Buffalo, unless the State is able to offer and does offer some satisfactory proof that the trial resulted in a final conviction.”
"Article 37.07, subd. 3(a), Vernon’s Ann.C.C.P., authorizes the State to offer evidence of the prior criminal record of the defendant at the punishment stage of the trial. The statute defines the term “prior conviction” as meaning “a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any conviction material to the offense charged.” Admissible evidence of a defendant’s prior criminal record, under the statute, is limited to proof of final convictions.
We construe the term “conviction,” as used in Article 37.07, to contemplate something more than a jury’s verdict and assessment of punishment. No conviction, final or otherwise, has resulted until the trial court has entered judgment and sentenced the defendant, where sentences are required. Absent a showing that a conviction has resulted, the question of finality of the conviction is not reached.
The State urges that the testimony of Cates, either alone or in conjunction with Mrs. Morgan’s testimony, properly establishes a prior final conviction. The testimony of Cates shows no more than that the Buffalo jury returned a verdict of guilty and assessed the punishment at three years. There is no evidence that the trial court entered judgment and sentenced appellant. It is true that Mrs. Morgan testified that appellant had been confined to the Oklahoma penitentiary some fifteen months for cattle theft, but at the time she so testified only the Arnett conviction was [281]*281before the court. No mention had been made of any alleged conviction at Buffalo. The natural inference is that Mrs. Morgan was speaking of the results of the Arnett conviction. There is nothing in the record to connect her testimony about appellant’s imprisonment with the trial at Buffalo. Mrs. Morgan’s testimony to the effect that she knew of the trial at Buffalo but did not know the result in no way connected the two. Such testimony was no evidence at all that appellant had actually been convicted at Buffalo.
Even if proof of a jury’s verdict of guilty were sufficient to show that appellant had been previously convicted, without a showing that he had been sentenced, there would be no proof of the finality of that conviction. In White v. State, 171 Tex.Cr.R. 683, 353 S.W.2d 229, we said:
“In a felony case, the sentence is the final judgment of conviction, without which there is no final conviction . We know of no way to show a final judgment in a felony case other than to also show the sentence.”
In that case we defined “sentence” by quoting old Article 737, V.A.C.C.P. The same definition presently, appears substantially unchanged in Article 42.02, V.A.C.C. R:
“A 'sentence’ is the order of the court in a felony or misdemeanor case made in the presence of the defendant and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law.”
In White, the State had introduced certified copies of prior judgments at the punishment stage of the trial for purposes of enhancement. The court held that, without proof that the defendant had actually been sentenced, there was no showing that a final conviction had resulted, and the evidence of the prior conviction was, therefore, inadmissible. There is no reason why the same rule that applies to proof of a prior conviction for enhancement purposes should not apply also where the State is seeking to prove a prior conviction as part of a defendant’s criminal record under the provisions of Article 37.07, V.A.C.C.P.
Though a judgment and sentence are two distinct and separate things, the sentence must be based on a judgment and without a judgment the court is not authorized to sentence the defendant. Scott v. State, Tex.Cr.App., 461 S.W.2d 619; Horn v. State, 117 Tex.Cr.R. 22, 35 S.W.2d 145.
The one stands upon the other. The absence of a judgment invalidates a sentence, and without a sentence no final conviction has resulted from the trial.
The State argues that the testimony of Cates was proper in rebuttal and impeachment of Mrs. Morgan’s testimony. Citing Gilmore v. State, Tex.Cr.App., 493 S.W.2d 163, and Ames v. State, Tex.Cr.App., 499 S.W.2d 110, the State contends the rule to be that, where a witness leaves the impression that a defendant has committed no offense other than the one in question, the State may refute such testimony by bringing in evidence of such other offenses. We find it significant that the present case is not one in which the defendant himself took the witness stand or offered some other witness to make blanket statements concerning his exemplary conduct so as to warrant the introduction of prior offenses without proof of final conviction. It is also significant that it was the State and not appellant who opened the inquiry into prior convictions in addition to the Arnett conviction and that Mrs. Morgan readily admitted knowledge of the existence of the Buffalo trial when asked by the prosecutor. Her statement concerning “three different things on one group of cattle” was nonresponsive and could have been cured by a proper objection and motion that the jury be instructed to disregard.
The State contends that, in any event, appellant was not prejudiced by the [282]*282testimony concerning the alleged Buffalo conviction because he had been previously convicted of a felony and was not eligible for a probated sentence, and because the jury gave him only four years. At the punishment stage of a trial for cattle theft, the jury may assess the penalty for any number of years from two to ten. The very purpose for introducing evidence of a defendant’s prior criminal record is to encourage the jury to assess a greater, rather than a lesser, number of years. Under such circumstances, improper evidence of a prior charge or conviction before the jury is inherently prejudicial.
We reverse the judgment and remand the cause.
Opinion approved by the Court.
MORRISON and DOUGLAS, JJ., dissent.