Gamble v. State , 1986 Tex. Crim. App. LEXIS 749 ( 1986 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appellant was tried by a jury for the offense of burglary of a habitation in Harris County. See V.T.C.A., Penal Code Sec. 30.02(a)(3). The jury, after returning a verdict of guilty, assessed punishment at 50 years in the Texas Department of Corrections. Appellant’s co-defendant, Gary Wayne Fisher, jointly tried with appellant, was sentenced to 45 years in the Texas Department of Corrections. On direct appeal, appellant alleged five grounds of error. The Court of Appeals affirmed. Gamble v. State, 681 S.W.2d 769 (Tex.App.—Houston [14th] 1984). Fisher’s conviction was also affirmed on direct appeal. Fisher v. State, 681 S.W.2d 202 (Tex.App.—Houston [14th] 1984) (pet. ref’d).

We granted review to determine whether the Court of Appeals erred in holding that appellant failed to demonstrate the harmful effect of the error in admitting State’s exhibits six and seven. The exhibits admitted are copies of judgments of prior misdemeanor convictions, introduced during the punishment phase of appellant’s trial. See Art. 37.07(3)(a), V.A.C.C.P.

Finding no error, we affirm.

The facts of the case are adequately set out in the Court of Appeals’ opinion, 681 S.W.2d 770-771.

Appellant does not question the trial court’s admission of the fact he had previously been convicted two times of misdemeanor theft, and served a sentence in the Harris County jail for each offense. Appellant’s complaint is that the judgments indicate that the prior convictions were originally filed as felonies, but were reduced to misdemeanors.

Appellant objected before the exhibits were introduced, and a discussion of the matter, outside the presence of the jury, appears in the statement of facts. The trial judge subsequently ordered that the portion of each judgment which indicated the prior convictions had originally been indicted as felonies was to be “whited out.”

Appellant claimed in the Court of Appeals that he was prejudiced by the failure of the trial court to additionally delete other words which indicated that the prior offenses had been reduced from felonies. After the judgments had been “whited out,” the following handwritten words remained on the exhibits: “upon motion of the State, the second paragraph was reduced to a misdemeanor, the defendant on trial for theft, a class A misdemeanor” [Ex. 6], and “upon motion of the State the offense was reduced to theft, a class A misdemeanor. The defendant on trial for theft, a class A misdemeanor.” [Ex. 7].

The Court of Appeals found that under our holding in Davis v. State, 642 S.W.2d 510 (Tex.Cr.App.1982), the words probably should have been deleted, but any error in admitting the judgments was harmless. Gamble, supra, at 773. The Court of Appeals thus rejected appellant’s contentions that the jury’s returning a sentence in less than three hours, rejecting his application for probation, and giving a penalty in excess of the statutory minimum was an adequate show of harm.'

We find the Court of Appeals was correct in its holding of harmless error. In Davis, supra, we held that words to the effect that the defendant had previously been charged with a felony was harmless beyond a reasonable doubt in light of the gross criminal conduct on the part of the defendant and several reputation witnesses presented by the State. Davis, supra, at 513.

In the course of committing thé offense of burglary, appellant jumped on top of Wally Posey [the complaining witness] while he was asleep in his bedroom. Appellant held a gun to the side of Posey’s head and demanded money. Appellant told Posey he would kill him if he moved. Appellant subsequently placed a pillow over Posey’s head and told his co-defendant, Gary Fisher, to get a weapon to hit Posey with if he moved. Appellant left the bedroom. When Posey turned his head in response to a noise, Fisher hit Posey across the hand with a piece of metal. We find this type of conduct to be sufficient to justify the actions and verdict of the jury for which appellant complains.

In addition, in a subsequent paragraph in both exhibits, as well as in the title of State’s exhibit six, there are printed words which indicate the prior convictions were originally indicted as felonies. This was not brought to the attention of the trial court, nor is it explained how “reduced to a misdemeanor” could be prejudicial when the printed language was not objected to. Appellant’s objection to the judgments was specifically addressed to the handwritten portions and not any pre-printed parts of the judgments.

We further find that the fact that a felony offense was reduced to a misdemeanor is not a “detail” of the prior offense. See Fairris v. State, 515 S.W.2d 921 (Tex.Cr.App.1974), and Knox v. State, 487 S.W.2d 322 (Tex.Cr.App.1972), overruled on other grounds, Bradford v. State, 608 S.W.2d 918, at 921 (Tex.Cr.App.1980). Consequently, the introduction of such evidence is not prohibited by the cases which forbid details of a prior offense to be admitted for Art. 37.07(3)(a) purposes. See Walker v. State, 610 S.W.2d 481 (Tex.Cr.App.1980); Lege v. State, 501 S.W.2d 880 (Tex.Cr.App.1973); Mullins v. State, 492 S.W.2d 277 (Tex.Cr.App.1973).

Still further, we do not find appellant was harmed, because the same evidence of reducing the prior felony charges to misdemeanors was admitted elsewhere in the exhibits without objection. See Montelongo v. State, 681 S.W.2d 47 (Tex.Cr.App. 1984); Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980); McMahon v. State, 582 S.W.2d 786 (Tex.Cr.App.1978), cert, den., 444 U.S. 919, 100 S.Ct. 238, 62 L.Ed.2d 175 (1979). Further, the verdict of the jury was more than justified by the actions of appellant in committing the offense. See Davis, supra.

The judgment of the Court of Appeals affirming the judgment of the trial court is affirmed.

CLINTON and MILLER, JJ., concur in the result.