Owens v. State

851 S.W.2d 398, 1993 Tex. App. LEXIS 1092, 1993 WL 107074
CourtCourt of Appeals of Texas
DecidedApril 13, 1993
DocketNo. 2-92-051-CR
StatusPublished
Cited by10 cases

This text of 851 S.W.2d 398 (Owens v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Owens v. State, 851 S.W.2d 398, 1993 Tex. App. LEXIS 1092, 1993 WL 107074 (Tex. Ct. App. 1993).

Opinion

OPINION

FARRAR, Justice.

Appellant, Charles Earl Owens, Jr., was convicted by a jury of indecency with a child. The trial court sentenced him to thirty years in the Institutional Division of the Texas Department of Criminal Justice. Owens appeals the punishment assessed against him.

We affirm.

The controversy in this appeal centers around an enhancement paragraph in the indictment which alleges that Owens was previously convicted of the felony “SEXUAL ABUSE-CHILD” in cause number 11880. Owens did not enter a plea to this enhancement allegation. As proof of the enhancement paragraph, the State offered the pen packet for cause number 11880.

Owens objected to the introduction of the pen packet, claiming that the prior conviction was void because it was a general conviction to an indictment with four counts. The first three counts in that indictment charge Owens with sexually abusing a child on August 5, 1977 (each count names a different victim). The fourth count charges Owens with sexually abusing another child on August 1, 1977. The judgment for the prior conviction states that the “OFFENSE” of “SEXUAL ABUSE-CHILD” occurred on “AUGUST 5th, 1977 and AUGUST 1st, 1977” for “COUNTS ONE, TWO, THREE AND FOUR.” When Owens objected to the multiple conviction, the State effectively elected to proceed only on one offense. The trial court admitted the entire pen packet into evidence with the limitation that it would only consider one prior felony conviction.

Owens brings two points of error. He argues that his sentence is excessive because the trial court failed to find true the State’s enhancement allegation of a prior conviction. We overrule this point of error. The judgment reflects that the trial court found “ONE PRIOR FELONY CONVICTION” from the enhancement allegations.

In Owens’ second point of error, he argues that the trial court erroneously admitted the prior conviction into evidence because it was void and, because no other evidence supports the enhancement allegation, the sentence is excessive. We hold that, while the conviction is erroneous because it is for more than one offense, it is not entirely void, and the trial court properly admitted the enhancement evidence with the limitation that it would only consider one prior felony conviction.

The State must present evidence which supports the enhancement allegations contained in an indictment because “[i]f the proof fails to correspond with the enhancement allegations the punishment cannot be legally enhanced.” Cole v. State, 611 S.W.2d 79, 80 (Tex.Crim.App. [Panel Op.] 1981) (quoting Hollins v. State, 571 S.W.2d 873 (Tex.Crim.App.1978)). The State may meet this burden by introducing authorized copies of the Texas Department of Corrections records, including the judgment and sentence. Beck v. State, 719 [400]*400S.W.2d 205, 209 (Tex.Crim.App.1986). The State must also present evidence that the defendant is the person previously convicted. Id. at 210. Once the State introduces this evidence, the burden shifts to the defendant to prove the invalidity of the prior conviction. Clifton v. State, 755 S.W.2d 556, 562 (Tex.App.—Fort Worth 1988, no pet.).

Here, the pen packet contains the authorized copies of the Texas Department of Corrections records for cause number 11880, including: photographs, fingerprints, the judgment, and the sentence. Owens stipulated that the pen packet contains his photograph and fingerprints. Thus, the State met its burden to produce evidence of the prior conviction and connected it to Owens. Owens contests the validity of the prior conviction by arguing that it is void because it violates the carving doctrine and Tex.Code Crim.PROC.Ann. art. 21.24 (Vernon 1989).

The carving doctrine is the rule that a prosecutor can “carve as large an offense out of a single transaction as he can, yet he must cut only once.” Ex parte Cantrell, 580 S.W.2d 369, 370 n. 1 (Tex.Crim.App. [Panel Op.] 1979) (citing Quitzow v. State, 1 Tex.Ct.App. 47, 53-57 (1876)). The court of criminal appeals identified two tests for the application of this doctrine:

Initially, carving was applied when the two offenses charged contained common material elements or when the two offenses required the same evidence to convict. [Citations omitted]. This Court added the ‘continuous act or transaction’ test in Paschal v. State, 49 Tex.Cr.R. 111, 90 S.W. 878 (1905). Since that time the ‘same evidence’ and the ‘continuous assaultive transaction’ tests have been randomly applied.

Ex parte McWilliams, 634 S.W.2d 815, 823 (Tex.Crim.App.) (opinion on reh’g), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982); Clay v. Lynaugh, 770 S.W.2d 800, 801 (Tex.Crim.App.1989) (per curiam). This doctrine was abolished in 1982, in favor of the Blockburger double jeopardy test. Ex parte McWilliams, 634 S.W.2d at 822, 824; see Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). But Owens’ prior conviction was obtained in 1978, so the carving doctrine is applicable to his prior conviction. Clay, 770 S.W.2d at 800.

At the time of Owens’ prior conviction, article 21.24 stood for the rule that multiple convictions for non-property offenses could not be had upon a single indictment, regardless of whether they arose out of the same or different transaction. Fortune v. State, 745 S.W.2d 364, 369-70 (Tex.Crim.App.1988). For the purposes of this appeal, the carving doctrine and article 21.24 form the rule that any conviction obtained in excess of one offense per indictment violates the laws of this State.1

The’ State argues that the prior conviction was obtained only for the first offense because the fingerprint page shows that the crime Owens committed was “Sex Abuse-child (1)(2 to 9½).” But this does not change the fact that the judgment lists Owens’ offenses as counts one, two, three, and four. We agree with Owens that the judgment recites a conviction for each of the offenses charged in the indictment and violates the one offense per indictment rule. The judgment was never reformed; thus, it still violates the rule.

Owens argues that only the court of criminal appeals can correct and reform the final misjoined convictions and until it does so none of the convictions can be used for enhancement purposes. This argument raises two questions of first impression. First, can only the court of criminal appeals correct misjoined convictions when the defendant first questions their validity in a post-conviction collateral attack? If so, did the trial court erroneously consider evi[401]*401dence of one of the prior felony convictions for enhancement purposes?

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851 S.W.2d 398, 1993 Tex. App. LEXIS 1092, 1993 WL 107074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owens-v-state-texapp-1993.