Ex Parte Girnus ( 1982 )

OPINION

McCORMICK, Judge.

This is a post-conviction application for writ of habeas corpus pursuant to Article 11.07, V.A.C.C.P.

On July 22, 1974, the applicant was convicted of the offense of burglary with intent to commit theft in Harris County cause number 215440. Punishment, enhanced by two prior felony convictions, was assessed by the court at imprisonment for life. This conviction was affirmed in Girnus v. State, 595 S.W.2d 118 (Tex.Cr.App.1980).

During the pendency of the applicant’s appeal, this Court remanded the cause to the trial court three times. The second remand was on July 14, 1976. The unpublished per curiam opinion delivered by this Court on that date stated that the cause was remanded for a new hearing on punishment because the State had not proved at the original punishment hearing that the second prior conviction alleged for enhancement was for an offense that had been committed after the first prior conviction had become final. The opinion also stated that the State had not proved that the applicant was the individual whose convictions were evidenced by the pen packets that were introduced in evidence at the original punishment hearing. A second punishment hearing was held and this Court ultimately affirmed the conviction, rejecting the applicant’s contention on appeal that the double jeopardy clause of the Fifth Amendment to the United States Constitution was violated when the State was given a second chance to prove the prior convictions. This Court held that the opinions of the United States Supreme Court in 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) did not apply to the proof of prior convictions for the purpose of enhancement of punishment.

In the instant application for writ of habeas corpus, the applicant notes that this Court has changed its view as to the application of Burks and Greene to the proof of prior convictions. This Court has now held that if the State fails to sufficiently prove all facts necessary to find an enhancement paragraph true, the State may not, at a new hearing in the same cause, have a second opportunity to prove the original allegations. Cooper v. State, 631 S.W.2d 508 (Tex.Cr.App.1982). Since this Court has held, in another context, that the rule announced in Burks v. Greene applies retroactively, Ex parte Mixon, 583 S.W.2d 378 (Tex.Cr.App.1978), it would appear at first glance that the applicant is entitled to a reassessment of punishment without reference to one or both of the enhancement paragraphs. However, for the reasons hereafter stated, we have determined that the applicant is not entitled to this relief.

The applicant testified on his own behalf during the guilt-innocence stage of his trial. During cross-examination, the applicant admitted several prior convictions. Among the prior convictions admitted by the applicant were McLennan County cause number 15609 and Bell County cause number 18324, the two prior convictions alleged for enhancement. This Court has held that where the defendant takes the stand at the guilt-innocence stage of the trial and any part of his prior criminal record is properly used for impeachment, the same need not be reintroduced at the hearing on punishment and such evidence may be properly considered by the judge or jury assessing the penalty. Thus, this Court was in error when it stated in its per curiam opinion delivered July 14, 1976, that the State had failed to prove that the applicant was the individual whose convictions were evidenced by the pen packets tendered at the original punishment hearing. The applicant’s admission of these prior convictions relieved the State of any further burden of proof in this regard.

Three pen packets were introduced in evidence at the original punishment hearing. One of these pen packets contains the judgment and sentence from McLennan County cause number 15609, the earliest of the two prior convictions alleged for enhancement. The judgment and sentence are dated March 11, 1965, and this conviction was not appealed. Another pen packet contains copies of the judgment, sentence, and indictment in Bell County cause number 18324, a conviction for attempted burglary and the more recent of the two prior convictions alleged for enhancement. This indictment, which is certified by the district clerk, bears a file mark of March 25, 1971. In 1971, the limitation period for attempted burglary was three years. Article 12.04, V.A.C.C.P. (1965). Because the indictment in Bell County cause number 18324 was returned more than six years after the conviction in McLennan County cause number 15609 became final, introduction of this indictment was sufficient to prove that the Bell County offense was committed after the McLennan County conviction became final. Villareal v. State, 468 S.W.2d 837 (Tex.Cr.App.1971). Thus, this Court was in error when it stated in its per curiam opinion delivered July 14, 1976, that the State failed to prove at the original punishment hearing that the second prior conviction alleged for enhancement was for an offense committed after the first conviction had become final.

In summary, the evidence introduced by the State at the applicant’s original trial was sufficient to prove the two prior convictions alleged for enhancement. This Court was in error when it stated in its opinion delivered July 14, 1976, that the evidence was insufficient. Although the State was given a second opportunity to prove the enhancement allegations, no harm was suffered by the applicant because the proof adduced at the first trial was sufficient. Thus, there was no violation of the rule announced in Cooper v. State, supra.

For the reasons stated, the relief sought is denied.

IT IS SO ORDERED this 27th day of October, 1982.

CLINTON, J., dissents.