Ex Parte Christian , 1988 Tex. Crim. App. LEXIS 239 ( 1988 )

OPINION

McCORMICK, Judge.

This is a post-conviction habeas corpus proceeding which is before this Court pursuant to the provisions of Article 11.07, V.A.C.C.P.

In May of 1978, applicant was convicted by a jury of the offense of burglary of a building. At the punishment phase of the trial, applicant pled “not true” to the two enhancement paragraphs’ allegations.¹ The jury, however, found the allegations of two prior convictions to be true. In accordance with the requirements of the law at that time, the trial judge entered judgment and mandatorily assessed applicant’s punishment at confinement for life in the Texas Department of Corrections. Y.T.C.A., Penal Code, Section 12.42(d), prior to 1983 amendment.² A direct appeal was subsequently made to this Court and the conviction was affirmed in a per curiam opinion dated March 7, 1979 under Cause No. 60,-869.

Applicant, in this post conviction writ of habeas corpus, has alleged that the State failed to present evidence with regard to the proper sequence of the enhancement allegations as is required under Section 12.42(d), supra.

The trial court judge has entered findings of facts and conclusions of law in which she asserts that applicant is challenging the sufficiency of evidence in this case and that it has long been the rule in this State that sufficiency of evidence claims may not be raised in a collateral attack. The judge cites Ex parte Ash, 514 S.W.2d 762 (Tex.Cr.App.1974), to support her arguments. We agree.

In Ex parte Williams, 703 S.W.2d 674, 677 (Tex.Cr.App.1986), this Court held that when the trial court has jurisdiction to render judgment and the law affords a remedy by appeal, this Court may not in habeas corpus proceedings inquire into questions concerning the sufficiency of the evidence upon which judgment was rendered. Thus, as long as the record is “not totally devoid of evidentiary support of the [enhancement] allegations,” then this Court will not set aside an applicant’s conviction. Williams, 703 S.W.2d at 680.

The State introduced two pen packets as proof of applicant’s two prior convictions. Both packets contain judgments and sentences relative to the two prior convictions. The judgment found in the pen packet for the 1966 theft conviction contains an allegation that “said defendant committed said offense on the 28th day of August, 1965_” The pen packet for the conviction of breaking and entering a motor vehicle contains no allegations of when that offense was committed. We have previously held that pen packets constitute some evidentiary support for enhancement allegations. Ex parte Brown, 757 S.W.2d 367 (Tex.Cr.App.1988). See also Ex parte Williams, supra. The record, therefore, is not totally devoid of evidentiary support.

The relief prayed for is denied.

1 . The State alleged for enhancement purposes that applicant had been convicted of two prior felonies. The first conviction alleged was obtained under Cause No. C-68-953-HL from the Criminal District Court No. 5 of Dallas County on October 24, 1969. This conviction was for breaking and entering a motor vehicle with intent to commit theft. The second offense was a conviction obtained under Cause No. F-2582-J from the Criminal District Court No. 3 of Dallas County on August 12, 1966. This conviction was for theft.

2 . V.T.C.A., Penal Code, Section 12.42(d), since amended by Acts 1983, 68th Leg. p. 1750, ch. 339, Section 1, eff. Sept. 1, 1983, reads as follows:

"If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.”

The section, as amended, reads as follows:

"If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than 99 years or less than 25 years.”

The present amendment obviously leaves to the jury a degree of discretion in sentencing of repeat offenders that was heretofore denied them. Previously, the issue was placed in the trial judge’s hands and the sentence was made mandatory upon a factual finding by the jury.