White v. State

247 S.W.2d 396, 157 Tex. Crim. 171, 1952 Tex. Crim. App. LEXIS 1728

Opinions

MORRISON, Judge.

Appellant was found guilty by a jury as evidenced by the following verdict:

“We, the jury, find the defendant guilty as charged" in the Indictment, and that he has been convicted previously of two felony cases less than capítol on which the judgment had become final.

“W. E. Brown,

“Foreman.”

Based upon this verdict, the court adjudged the appellant guilty of attempted burglary and as an habitual criminal and sentenced him to confinement in the state penitentiary for life.

There are no bills of exception in the record, but it is the contention of the appellant that the habitual criminal statute which contemplates the conviction of the present felony and of two other felonies as - provided -in Article 63 of . the Penal Code, cannot be based upon proof of three prior felonies; or in other words, that the accused must be proven to have .committed two other prior felonies, and that proof of three prior felonies would vitiate the conviction.. It is shown herein that appellant was proven to have committed not only the present felony but three other felonies prior to this time. Appellant contends that he cannot be sentenced as an habitual criminal because of such fact and that this conviction should have been only of the presently charged offense. This contention is not sound. See Ex parte Bonds, 148 Tex. Cr. R. 198, 185 S.W. (2) 984.

The allegations in the indictment merely alleged a prior conviction in Cause No. 58677 on the docket of the Criminal District Court of Harris County, Texas, and a further final conviction in Cause No. 61921 on the docket of the same court, and that thereafter appellant committed the offense presently charged a,gainst him, same being Cause No. 65129 in the Criminal District Court No. 2 of Harris County, Texas.

We do find from the proof that these above two extra causes were not only alleged but proven, and while there may have been further causes proven in the case, the court did not utilize them in his charge to the jury but merely instructed them on the two prior convictions as above alleged.

The appellant took the witness stand and without objection testified to his criminal record, and among other things, he admitted his prior convictions as alleged in the indictment.

We see no error presented herein, and the judgment will therefore be affirmed.