Ex Parte Brown , 1988 Tex. Crim. App. LEXIS 161 ( 1988 )

TEAGUE, Judge,

concurring.

There is absolutely no need to overrule Ex parte Klasing, 738 S.W.2d 648 (Tex.Cr.App.1987), as the majority opinion does, although there is perhaps a need to distinguish it from the facts of this cause.

The record of this cause clearly reflects that in proving up the two prior felony convictions that it alleged in the indictment to enhance appellant and cause the trial judge to assess his punishment at life imprisonment, the State introduced into evidence applicant’s “pen packets”. Contained within the “pen packet” that relates to the alleged 1962 prior conviction is the indictment that recounts that offense, which clearly shows that that offense occurred subsequent to the date when the first alleged prior conviction occurred, namely, June 19, 1956. Thus, under this Court’s many decisions, the evidence is clearly sufficient to sustain the enhancement allegations.

Stokes v. Procunier, 744 F.2d 475, 483 (5th Cir.1984), on which Ex parte Klasing, supra, relied, is not on point because, as the Fifth Circuit clearly pointed out in its opinion: “[T]he State failed to introduce any evidence of the date Stokes committed the second felony. Since the State produced no evidence as to this essential element, it is impossible to say that a ‘rational trier of fact’ could have found beyond a reasonable doubt the facts necessary to support the life sentence.” (484). In Stokes, supra, the State did not introduce any evidence reflecting the “sequence” of the alleged prior convictions. In this cause, however, the State did introduce evidence of the date of the commission of the alleged second prior conviction.

When the State introduces no evidence of the date that the second alleged offense was committed, and the trier of fact on punishment is the jury, then it is necessary for the trial judge to instruct the jury on the statute of limitations. Stokes, supra. However, when the State introduces evidence of the date of the commission of the second alleged prior conviction, there is no need to instruct the jury on the statute of limitations.

The defendant is not entitled to any relief.

Therefore, I concur.

CAMPBELL, J., joins.