Tommy Earl Brown v. State of Texas ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Tommy Earl Brown

Appellant

Vs.                   Nos. 11-01-00009-CR & 11-01-00010-CR -- Appeals from Dallas County

State of Texas

Appellee

In Cause No. 11-01-00009-CR, the jury convicted appellant of robbery, found the enhancement paragraphs to be true, and assessed his punishment at 60 years confinement.  In Cause No.  11-01-00010-CR, the jury convicted appellant of forgery, found the enhancement paragraphs to be true, and assessed his punishment at 5 years confinement.  We affirm.

There is no challenge to the sufficiency of the evidence.  The victim testified that on August 2, 2000, she was walking to the house where she worked as a baby-sitter when someone driving by in a pickup stopped and asked her a question.  The victim stated that she kept walking but that she felt something and turned around.  When she turned around, appellant was running toward her.  The victim started running and screaming for help; and then appellant pushed her from behind, knocking her to the ground. The victim testified that she hit her head on the ground and that she Asaw darkness and stars.@ Appellant then took her purse and drove off in the pickup.  The victim stated that she had a paycheck in her purse from Lynn Carroll.   Later that day, appellant was arrested in a grocery store when he tried to cash the check made payable to the victim from Carroll.   Appellant had marked through the victim=s name and had written his own name as the payee.  

In his sole point of error in each appeal, appellant argues that the trial court erred in allowing testimony at the punishment phase of trial of the details of one of appellant=s prior convictions that was used for enhancement purposes. Each indictment included two enhancement paragraphs.  The first enhancement paragraph alleged that appellant had previously committed the offense of robbery, and the second alleged that appellant had previously committed the offense of attempted burglary of a building.  In each cause number, appellant pleaded not true to both enhancement paragraphs.

Elsie Roberta Berry testified at the punishment phase of trial that on July 25, 1989, she stopped for gas on her way home from work. She paid for her gas and then put five dollars that she received in change in her purse.  While she was pumping her gas, she had her purse in her left hand resting on the trunk of her car.  Her purse was snatched out of her hand; and, as she turned around, she saw someone getting into a car with her purse.   Berry stated that she reached into the driver=s side window to retrieve her purse and that the driver knocked her to the ground. The driver then ran over her leg with the car.  Berry testified that she developed a Amassive infection@ in her leg that required two surgeries.   Berry identified appellant as the person who took her purse and ran over her with the car.  Appellant was detained at the scene until the police arrived.

TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 3(a) (Vernon Supp. 2002) provides in part:

[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant...any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Appellant argues that Article 37.07, section 3(a) allows the details of unadjudicated offenses to be admitted during punishment but that the details of adjudicated offenses are inadmissible.  Appellant contends that, because the prior robbery offense was adjudicated and used for enhancement, the details of the offense were not admissible, only the fact of conviction. 

Article 37.07, section 3(a) allows the trial court to admit any matter it deems relevant to sentencing.  Pursuant to Article 37.07, section 3(a), the jury is allowed to hear the details of a defendant=s criminal history when assessing punishment.  See Davis v. State, 968 S.W.2d 368 (Tex.Cr.App.1998); Hambrick v. State, 11 S.W.3d 241 (Tex.App. ‑ Texarkana 1999, no pet=n).  The trial court did not err in allowing Berry to testify about the details of appellant=s prior conviction for robbery.

The judgments of the trial court are affirmed.

PER CURIAM

May 9, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.