West v. State , 93 Tex. Crim. 288 ( 1922 )

It is insisted that the effect of our opinion is to shift the burden of proof to appellant West in requiring him to prove the conviction in the Federal Court was for a misdemeanor and not a felony. When appellant West filed his application for a suspended sentence the very law he invoked placed the burden on him of showing that he had not been convicted of a felony. He undertakes to discharge the burden through the evidence of a witness who testified that West had never been convicted of a felony. The State then on cross-examination proved by this witness (without objection as to the manner of proof) that this appellant had been convicted in the Federal Court of transportation of intoxicating liquor, an offense which might or might not be a felony under Federal statute, depending on whether the conviction was for a first, second or third offense. The State having met appellant's proof in this manner, we think the burden was still on him to bring himself within the terms of the suspended sentence law, and show the conviction was not for a felony. We cannot presume the State was offering it merely to show that appellant had been convicted of a similar offense, but rather must we indulge the presumption in the absence of a showing to the contrary, that the State was legitimately seeking to defeat the plea for suspended sentence by showing that a prior conviction for a felony stood in the way of granting it.

We have examined the other questions presented on rehearing, but believing the former opinion properly disposed of them, and finding no reason to change the views therein expressed, the motion for rehearing will be overruled.

Overruled.