Heard v. State , 148 Tex. Crim. 19 ( 1944 )

Appellant was convicted as an habitual violator of the liquor laws, under the provisions of Article 61, P. C., and his punishment assessed at a fine of $400.00 and twelve months' confinement in jail.

The primary offense alleged was the unlawful sale of wine in a dry area. The two prior convictions relied upon were for unlawfully transporting whisky in a dry area and unlawfully possessing wine for the purpose of sale in a dry area.

As to the primary offense, the purchaser named in information testified that at the time and place alleged he purchased from appellant a quart of wine for which he paid him $2.00. This was sufficient to warrant the jury's conclusion of guilt.

Appellant contends that one of the prior convictions here relied upon had been used by the State for the purpose of enhancing the penalty in another case against appellant. In support of this contention, he sought to introduce the information in such case in which the State, for the purpose of enhancing the penalty in that case, alleged one of the prior convictions here relied upon. The objection of the State that the prior conviction had been dismissed and was not relied upon by the State, was sustained. The record before us fails to affirmatively reflect that appellant was finally convicted in the case upon which he relies to sustain his position.

It must be remembered that under the provisions of Article 61, P. C. it is the final conviction, and not a mere accusation, which authorizes the enhancement of the penalty. Appellant's contention is therefore not sustained by the record.

The judgment of the trial court is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.