Gary Allan Seals v. State ( 2005 )

Opinion filed November 17, 2005

The Court on this day, November 16, 2006, has withdrawn this opinion and judgment dated November 17, 2005, and substituted the opinion and judgment dated November 16, 2006.

Opinion filed November 17, 2005

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00009-CR

                                                    __________

                                    GARY ALLAN SEALS, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 42nd District Court

                                                          Taylor County, Texas

                                                 Trial Court Cause No. 21,277-A

                                                                   O P I N I O N

After the jury convicted Gary Allan Seals of burglary of a building, a state jail felony, the trial court found that appellant had two prior felony convictions and assessed his punishment at confinement for 15 years.   We affirm.

                                                                Background Facts

The indictment charged that on or about March 24, 2003, appellant intentionally and knowingly entered a building which was not then open to the public without consent of the owner; that appellant entered the building with intent to commit theft; that appellant had been finally convicted of burglary of a building in Harris County in 1989; and that appellant had been finally convicted of burglary in Garza County in 1986.

                                                                  Issues Presented

Appellant presents two points of error for appellate review.  First, we will discuss the point which has become moot. Appellant argues in his second point of error that the trial court erred Ain enhancing the range of punishment to a first degree felony.@  The original judgment of conviction stated that appellant was convicted of a state jail felony which was enhanced by proof of two prior offenses to a first degree felony. The supplemental transcript contains a judgment nunc pro tunc which corrects that error.  The record now shows that the punishment was enhanced to a second degree felony, and the second point of error is overruled as moot. Appellant argues in his other point of error that the trial court erred in admitting evidence of his prior conviction in Garza County. 

                                                        The Garza County Conviction

Appellant=s attorney objected to State=s Exhibit No. 14 Aon the grounds that the offense was committed on 2-3 of 086, date of the judgment was 2-11 of 086.@ Appellant argued that nowhere in the judgment was there any waiver of the ten days in which to prepare for trial, and appellant=s lawyer said that he and his client would object to the exhibit on that basis. That objection was overruled, and the exhibit was admitted into evidence after the expert witness testified that the fingerprints on that exhibit matched appellant=s fingerprints.

State=s Exhibit No. 14 is the penitentiary packet which contains the judgment from Cause No. 1511, State of Texas v. Gary Seals, 106th District Court of Garza County, Texas.  The date of the judgment is February 11, 1986; and the judgment states that the offense was committed on February 3, 1986.  The judgment also shows that notice of appeal was not given, and the judgment reads in relevant part as shown:

The Defendant appeared both in person and by counsel and the Defendant, having elected to waive a jury herein and submit all matters of both law and fact to the Court, in person, in open Court and with his attorney, and upon entering his plea of guilty herein, waived his right to a jury.

Whereupon the Defendant having been duly arraigned before the Court and both the State and Defense in open Court announced ready for trial, the Defendant, in open Court, and in person, and represented by his attorney, pleaded guilty. (Emphasis added)

The judgment states that the court admonished appellant, that it appeared to the court that appellant was sane, and that the plea of guilty was supported by evidence which was introduced.  Appellant was convicted of burglary and sentenced to serve a term of 12 years confinement.

                                                                        Opinion

TEX. CODE CRIM. PRO. ANN. art. 27.11 (Vernon 1989) provides that, in all cases, the defendant Ashall be allowed ten entire days@ to file written pleadings.  None of the cases cited by appellant involved a collateral attack on a prior final conviction.  Oliver v. State, 646 S.W.2d 242 (Tex.Cr.App.1983), is a case where the record shows that the defendant made Aan affirmative request@ for the time allowed by Article 27.11 and that the request was refused.  Young v. State, 752 S.W.2d 235 (Tex.App. - Fort Worth 1988), aff=d, 796 S.W.2d 195 (Tex.Cr.App.1990), is a case where the court of appeals said that the failure to allow appointed counsel ten days to prepare for trial requires reversal on direct appeal.  Henson v. State, 530 S.W.2d 584 (Tex.Cr.App.1975), is a case where the cause was remanded for a new punishment hearing because the appointed counsel was not allowed ten days to prepare for the enhancement allegations in the reindictment of a habitual offender.  The court in Henson noted in its opinion that it was a Adirect appeal from conviction.@  Henson v. State, supra at 585.  The last case cited by appellant on this point of error is Peters v. State, 575 S.W.2d 560 (Tex.Cr.App.1979), where the court noted that the failure to allow appointed counsel ten days to prepare for trial Arequires reversal on direct appeal without the necessity of showing harm or prejudice.@ The case before us involves a collateral attack on a final conviction.  New v. State, 583 S.W.2d 781 (Tex.Cr.App.1979).  Point of Error No. 1 is overruled.

                                                                This Court=s Ruling

The judgment of the trial court is affirmed.        

BOB DICKENSON

SENIOR JUSTICE

November 17, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Dickenson, S.J.^[1]

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^[1]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.