Rounsavall v. State

480 S.W.2d 696, 1972 Tex. Crim. App. LEXIS 2207

• Court: Court of Criminal Appeals of Texas
• Decided: May 31, 1972
• Docket: 44715
• Status: Published

Opinions

OPINION

DALLY, Commissioner.

The conviction was for the offense of burglary, enhanced under Article 63, Vernon’s Ann.P.C.; the punishment, assessed by the court, life imprisonment.

A summary of the facts is not necessary to the disposition of appellant’s grounds of error and is therefore omitted.

The appellant’s complaint that it was error to admit certain evidence at appellant’s preliminary trial on the issue of insanity will not be considered, as this court has consistently refused to consider appeals from judgments rendered in preliminary trials on the issue of insanity. See Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972); Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App.1967); Pena v. State, 167 Tex.Cr.R. 406, 320 S.W.2d 355 (1959) and Ex parte Hodges, 166 Tex.Cr.R. 433, 314 S.W.2d 581 (1958).

The appellant complains that it was not proved that he was the same Robert Garry Rounsavall convicted of the offenses alleged for enhancement of punishment.

The record contains a portion of the transcription of the testimony of the preliminary trial on the issue of insanity. At that trial the State introduced the prison packet properly certified, showing the judgments of conviction, photographs, fingerprints and commitments in both of the convictions alleged for enhancement purposes. At the preliminary trial a fingerprint identification expert, who had compared the known fingerprints of the appellant with those certified in the prison packets, testified that the appellant was one and the same person.

The same judge presided at the preliminary trial on the issue of insanity and the trial on the burglary charge. As the appellant did not elect to have the jury assess his punishment, it was assessed by the court. In the punishment phase of the trial the same prison packets were remarked for identification purposes and offered in evidence. The court admitted the exhibits into evidence over the appellant’s objection that the appellant was not shown to be the same person convicted of such offenses. The court did not err in admitting the exhibits in the penalty stage of the proceedings, which had already been properly proved and admitted before the court in the preliminary trial on the issue of insanity. The court could consider for the purpose of enhancement of penalty the evidence regarding the identity of the appellant as the person convicted of the former offenses, admitted on the preliminary trial. See and compare Branch v. State, 445 S.W.2d 756 (Tex.Cr.App.1969) and Bridges v. State, 468 S.W.2d 451 (Tex.Cr.App. 1971).

However, we do not find the evidence in the record sufficient to support the enhancement allegations under the provisions of Article 63, V.A.P.C.

The indictment in this case alleges that the appellant was convicted of the offense of burglary in McLennan County on the 30th day of December, 1966, in Cause Number 15,923 and that prior to the commission of that offense he was convicted for the offense of burglary in McLennan County on the 12th day of December, 1963, in Cause Number 15,369.

There is no evidence in the record to show when the offense alleged in Cause Number 15,923 was committed.

This court has consistently held that to invoke the provisions of Article 63, V.A.P.C., it is necessary that each succeeding conviction be subsequent both in point of time of the commission of the offense and the conviction therefor.

The indictment must so allege and the averments of the indictment must be supported by proof. Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697 (1959); Rogers v. State, 169 Tex.Cr.R. 239, 333 S. W.2d 383 (1960); Lee v. State, 400 S.W.2d 909 (Tex.Cr.App.1966); Jones v. State, 422 S.W.2d 183 (Tex.Cr.App.1967) and cf. Villareal v. State, 468 S.W.2d 837 (Tex.Cr.App.1971).

The evidence proves that the appellant was convicted of both offenses of burglary in Causes 15,923 and 15,369, prior to the date he was proved to have committed the primary offense alleged in this case. This proof will sustain a conviction for a subsequent offense of the same nature under the provisions of Article 62, V.A.P.C. The punishment provided by law is twelve years imprisonment.

The judgment and sentence are therefore reformed to provide for appellant’s confinement in the Texas Department of Corrections for a period of twelve years. See Lee v. State, supra and Hamilton v. State, 397 S.W.2d 225 (Tex.Cr.App.1965).

The judgment, as reformed, is affirmed.

Opinion approved by the court.