# Cooper v. State

> Court of Criminal Appeals of Texas · April 21, 1982 · 631 S.W.2d 508

URL: https://www.frixlaw.com/law-library/cases/9857969

## Case

- **Full name:** Jack Wayne COOPER, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 21, 1982
- **Citations:** 631 S.W.2d 508; 1982 Tex. Crim. App. LEXIS 888
- **Precedential status:** Published
- **Opinion:** Concurrence by Onion
- **Judges:** McCormick, Onion, Odom, Clinton, Teague
- **Cited by:** 110 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Bell v. State, 1999 Tex. Crim. App. LEXIS 74 (1999).
- Negative treatments: 1
- Distinguished by: 3
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9857969

## How later opinions describe it (automated extraction)

- stating that the Court of Criminal Appeals is not bound by federal constitutional interpretations of the lower circuit courts
- holding that a less- than-positive identification may be sufficient to corroborate accomplice-witness testimony

## Opinion text

ONION, Presiding Judge,
concurring.
In Elizalde v. State, 507 S.W.2d 749 (Tex.Cr.App.1974), the State, as in the instant case, failed to sustain its burden of proof as to a prior conviction alleged for enhancement of punishment. The trial court nevertheless assessed punishment under Article 62, V.A.P.C., 1925. On appeal this court *515 remanded to the trial court for the assessment of punishment under the range of punishment provided for the primary offense of burglary with intent to commit theft (Article 1397, V.A.P.C., 1925). There an unanimous court stated: “In assessing the punishment, the court shall consider the record made at the trial of the case, omitting the evidence which we have held inadmissible.” The State was thus not permitted a second bite at the apple. Today we reach the same result.
Regrettably in Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App.1976), the majority, over this writer’s dissent, overruled Elizalde to the extent of any conflict. In Bullard the majority stated:
“Inasmuch as the State’s proof of prior convictions is insufficient, the proper remedy is to set aside the life sentence and remand the case to the trial court for a new hearing or trial on the issue of punishment to be assessed by the court, at which time the State may again attempt to prove the prior convictions for the purpose of enhancing punishment
Of course this was wrong. Article I, § 19, Texas Constitution, and the Due Process Clause of the Fourteenth Amendment and the double jeopardy provisions of the federal and state Constitutions were in place at the time. We shouldn’t have needed Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19 , 98 S.Ct. 2151 , 57 L.Ed.2d 15 (1978), or Bullard v. Estelle, 665 F.2d 1347 (5th Cir. 1982), to see that double jeopardy, due process and fundamental fairness were all involved.
I applaud today’s overruling of Bullard v. State, supra, and its progeny. Elizalde is again alive and well.
I concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9857969. Public record. Not legal advice.