Hall v. State , 1980 Tex. Crim. App. LEXIS 1541 ( 1980 )

OPINION

ROBERTS, Judge.

The appellant pleaded guilty to voluntary manslaughter, an offense that is normally a felony of the second degree. It also was alleged that the appellant had been convicted of a felony once before, which would have increased the punishment to that of a felony of the first degree. V.T.C.A., Penal Code, Section 12.42(b). The appellant pleaded untrue to this “repeater” allegation. The issue was submitted to a jury, which found the “repeater” allegation true, and which assessed a punishment of confinement for life.

In his third ground of error the appellant raises the same objection that he made in the trial court: That the proof of the “repeater” allegation was insufficient because the allegation was that he had been convicted previously “upon an indictment” in a Michigan court, while the only proof was that he had been convicted on an information. That variance renders the proof insufficient. Boone v. State, 450 S.W.2d 614 (Tex.Cr.App.1970); Melancon v. State, 367 S.W.2d 690 (Tex.Cr.App.1963).

According to this Court’s decision in Porier v. State, 591 S.W.2d 482 (Tex.Cr.App.1979), the Double Jeopardy Clause does not forbid the State to attempt again to prove the prior conviction. But the present judgment cannot stand, for it is based on insufficient proof.

The judgment is reversed and the cause is remanded.