overruling complaint on appeal; trial court instructed venire member concerning the law of reasonable doubt and became satisfied he would give defendant the benefit of any reasonable doubt that might exist
How later courts described this case
- overruling complaint on appeal; trial court instructed venire member concerning the law of reasonable doubt and became satisfied he would give defendant the benefit of any reasonable doubt that might exist
Written by the judges who cited it.
The opinion
ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.
In his motion for rehearing- appellant criticizes our original opinion which is subject to the construction that in the present case a former conviction could be used to fix the status of an “habitual criminal” upon appellant although it had previously been used to enhance the punishment in another case. Appellant points out that the question of an “habitual criminal” was not involved in this case. In this regard appellant is correct. Appellant was contending that in a prosecution for rape the *446 former conviction of appellant in 1934 in Collin County for robbery had been “used” to enhance the punishment in the rape case, and therefore the same conviction in 1934, could not again be “used” to enhance the punishment in the present prosecution for robbery. This was the real issue, and the question turns upon what is meant by the term “used.” The same judge who presided in the trial of the rape case also presided in a hearing in the present case where the propriety of alleging the prior conviction in 1934 in the present case was involved. The bill of exception bringing the question forward, as qualified, shows that in the rape case the motion of appellant to suppress or strike out the paragraph or count in that indictment averring the former conviction in 1934 was sustained, and that in the rape case the allegation of the conviction in 1934 “* * * was never read to the jury or so much as mentioned in their presence at any time; in fact, it then and there passed out of the trial and case and was never thereafter mentioned, referred to or alluded to in any way, shape, form or fashion, the trial being solely, wholly and only upon the first Count of said indictment * * *” charging the offense of rape. The qualification states further: “* * * In this case only (this appeal) has any use, or use for any purpose or substance, ever been made against the defendant Tuley for his previous conviction of Robbery in 1934. * * *”
As we understand it appellant here is urging the very same proposition which was before the court in Brown v. State, 150 Tex. Crim. Rep. 386, 196 S. W. (2d) 819 , and held adversely to appellant’s contention. There a prior conviction was alleged to enhance the punishment and the contention urged that because it was merely so alleged it was such “use” of the prior conviction a"s to preclude its use in a subsequent prosecution. We quote from the opinion in Brown v. State, (supra.)
. “This court is committed to the proposition that for the purpose of enhancing the punishment a prior conviction may not be used but one time. Many cases so holding will be found in the notes under Articles 61, 62, 63 and 64, Vernon’s Ann. Tex. P. C. In the present case, appellant is seeking to have us go one step further. In the second count of cause No. 5731, the State alleged a prior conviction in cause No. 5607, thereby making available to the State, if it is so desired, the use of the conviction in No. 5607 to enhance the punishment in No. 5731. It is obvious that the State did not use the conviction in No. 5607 to enhance the punishment. Appellant is seeking to have us say that because the averments in the second cause in cause No. *447 5731 would have permitted the tose of the prior conviction in No. 5607, that the State is precluded from now using the conviction in No. 5607 to enhance the punishment in the present case, although it is perfectly clear that it had never before been used to enhance the punishment in any case. We are not inclined to go as far as urged by appellant. See Sigler v. State, 143 Tex. Cr. R. 220 ; 157 S. W. (2d) 903 .”
We regard the holding in Brown v. State, (supra) and Sigler v. State (supra) as fundamentally sound and decisive of the question under discussion.
That part of our original opinion is withdrawn which appears to be predicated on the issue that the allegation of the former conviction was to fix upon appellant the status of an habitual criminal.
It is not thought necessary to consider further other matters urged in the motion.
The motion for rehearing is overruled.