explaining that the proper procedure to place the evidence before the jury in these circumstances is to permit the State to reintroduce the evidence unless the defendant stipulates to the same
How later courts described this case
- explaining that the proper procedure to place the evidence before the jury in these circumstances is to permit the State to reintroduce the evidence unless the defendant stipulates to the same
- setting out that the proper procedure to place the evidence before the jury in these circumstances is to permit the State to reintroduce the evidence unless the defendant stipulates to the same
- holding jury's consideration of evidence presented before the appellant's plea, and not having been stipulated or reintroduced, was clearly harmful to appellant
- recognizing that failure to read enhancement allegations and take defendant’s plea may be cured
Written by the judges who cited it.
The opinion
McCORMICK, Judge,
dissenting.
I must register my dissent to the majority opinion in this case. This Court in the recent case of Bush v. State, 642 S.W.2d 787 (1982) (motion for leave to file rehearing denied January 5, 1983), considered an analogous situation. On appeal, Bush contended that the evidence was insufficient to support the court’s findings that the second prior conviction alleged for purposes of enhancement was committed after the first prior conviction became final. Bush pled not true to the enhancement allegations of the indictment. The trial judge, over the defendant’s objection, found the enhancement allegations true based upon evidence presented during the guilt phase. Presiding Judge Onion, in writing for this Court, held that in viewing Bush’s testimony during the guilt-innocence phase as a whole the evidence was sufficient to sustain the allegations as to the prior convictions.
The same situation is presented in the case at bar. Evidence taken before appellant's plea to the enhancement allegations may be properly considered by the trier of fact on the issue of punishment. No reversible error was committed here and no harm has been shown. Until the majority realizes this, I must dissent.
W.C. DAVIS, MILLER and CAMPBELL, JJ., join in this dissent.