Sellars v. State

401 S.W.2d 835, 1966 Tex. Crim. App. LEXIS 1053

• Court: Court of Criminal Appeals of Texas
• Decided: March 9, 1966
• Docket: 39401
• Status: Published

Opinions

DICE, Commissioner.

The conviction is for burglary of a private residence at night; the punishment, enhanced by reason of a prior conviction for an offense of like character, ninety-nine years.

Trial was at the August, 1965, term of Criminal District Court No. 6 of Harris County, judgment being entered and sentence pronounced on October 8, 1965.

A purported statement of facts filed with the clerk of the trial court on December 30, 1965, consisting of 484 pages, accompanies the record. The instrument appears to be in three parts: pages 1 to 60, inclusive, pages 61 to 349, inclusive, and pages 350 to 452, inclusive. In addition, the exhibits are shown on pages 453 to 484. At page 60 there is a certificate by the official court reporter, Evelyn B. Friedman, which certifies that pages 1 through 59 comprise a true and correct transcript of all the testimony adduced and proceedings had upon the trial of the case that was reported and transcribed by her. Underneath the certificate is an agreement signed by counsel for the state and the defendant as to the correctness of the testimony and proceedings reported and transcribed by the court reporter. On page 349, there appears a certificate of Paul M. Rodriguez, Jr., a notary public in and for Harris County, which certifies that certain proceedings were reported by him which, as set out and transcribed, were true and correct. There is no agreement by counsel for the state and the appellant that such testimony and proceedings purportedly certified to by the notary were true and correct. On page 4S2 is found another certificate by Evelyn B. Friedman, the official court reporter, which certifies that pages 3S0 through 451 comprise a true and correct transcript of all the testimony adduced and proceedings had upon the trial that was reported and transcribed by her. Below this certificate is an agreement signed by the attorneys for the state and the appellant, certifying as to the correctness of the testimony and proceedings reported and transcribed by the court reporter.

The statement of facts is not approved by the trial judge.

As presented, only a portion of the statement of facts is certified to by the official court reporter and approved by counsel for the state and the appellant.

In the absence of a complete statement of facts, this court cannot pass upon the sufficiency of the evidence, questions relating to the court’s rulings on the admission of evidence, or the court’s charge. Stockman v. State, 164 Tex.Cr.R. 469, 303 S.W.2d 410; Sullivan v. State, Tex.Cr. App., 377 S.W.2d 952; Hankins v. State, 163 Tex.Cr.R. 553, 294 S.W.2d 850.

We overrule appellant’s contention that the trial court erred in not requiring the jury to assess the punishment in the case.

The indictment under which appellant was prosecuted and convicted alleged that he had been previously convicted of an offense of like character. Under Art. 62, Vernon’s Ann.P.C., the punishment upon appellant’s subsequent conviction for a felony offense of like character was the highest which is affixed to the commission of the primary offense of burglary.

While Art. 1391, V.A.P.C., fixes the punishment for burglary of a private residence at night at confinement in the penitentiary for any term of years not less than five, under the decisions of this court the trial court was authorized to assess appellant’s punishment under Art. 62, supra, at a term of ninety-nine years. Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842; Joseph v. State, Tex.Cr.App., 367 S.W.2d 330; Madeley v. State, Tex.Cr.App., 388 S.W.2d 187.

In the judgment entered by the court, appellant is adjudged guilty of the offense of nighttime burglary.- The same is ordered reformed so as to adjudge him guilty of nighttime burglary of a private residence as alleged in the indictment and found by the jury.

The judgment, as reformed, is affirmed..

Opinion approved by the court.