Wiggins v. State

539 S.W.2d 142, 1976 Tex. Crim. App. LEXIS 1037

• Court: Court of Criminal Appeals of Texas
• Decided: July 19, 1976
• Docket: 51538
• Status: Published

Opinions

OPINION

ODOM, Judge.

The offense is robbery under Art. 1408, V.A.P.C. (1925); the punishment, enhanced under V.T.C.A. Penal Code Sec. 12.42(d), life.

The indictment alleged appellant committed the primary offense of robbery and had previously been convicted of robbery in Cause No. 60,145 in the District Court of Tarrant County, Texas, on March 11, 1958, and of felony theft in Cause No. 46,298 in the District Court of Tarrant County, Texas, on November 27, 1945.

Appellant contends “the State failed to show that the second previous felony conviction was for an offense that occurred subsequent to the first previous conviction having become final.” In its brief, the State recites “the State agrees that the evidence does not support a finding that the offense relating to the 1958 conviction (State’s Exhibit 18) occurred after the 1945 conviction (State’s Exhibit 19).” The State contends, however, that the evidence is sufficient to sustain conviction under Art. 62, V.A.P.C. since “appellant did not file a motion to be punished under the new Penal Code.” The State misreads the record. Appellant timely filed a “Motion for Sever-ability of Punishment” requesting the court “to instruct the jury to assess punishment under the new Act, effective January 1, 1974.” The court charged the jury on the law applicable to second degree felonies, V.T.C.A. Penal Code, Sec. 12.33, and to habitual felony offenders, V.T.C.A. Penal Code, Sec. 12.42(d). The State’s contention is not supported by the record.

Sec. 12.42(d), supra, provides:

“If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.” (Emphasis added)

The showing that a second previous felony conviction occurred subsequent to the finality of the first prior conviction was also a requirement under Art. 63, V.A.P.C. See Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697; Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383; Lee v. State, Tex.Cr.App., 400 S.W.2d 909; Jones v. State, Tex.Cr.App., 422 S.W.2d 183; Jones v. State, Tex.Cr.App., 482 S.W.2d 634; Tyra v. State, Tex.Cr.App., 534 S.W.2d 695.

As conceded by the State, the evidence does not show the required sequence of events for enhancement under Sec. 12.42(d), supra. Although the error relates to punishment only, punishment was tried before the jury. Bray v. State, Tex.Cr.App., 531 S.W.2d 633.

For the error cited, the judgment is reversed and the cause remanded.