Grimmett v. State , 163 Tex. Crim. 148 ( 1956 )

WOODLEY, Judge,

dissenting.

The state offered in evidence the information and judgment in Cause No. 110167 in County Court at Law No. 2 of Harris County, Texas, the court where he was tried in the case at bar. These records reflect that Rayfield Grimmett and another had been convicted upon a plea of guilty of the offense of unlawfully keeping a bawdy house on March 2, 1955. This was the conviction alleged in the complaint and information for enhancement of punishment for the present offense of keeping a bawdy house on or about August 3, 1955.

The present trial occurred on October 5, 1955, seven months after the prior conviction.

The deputy clerk who produced the records of the previous conviction was unable to identify appellant from memory as the defendant in the prior conviction, but testified “he has testified that he is the same man already.”

It is not material that such testimony was given in some other proceeding. Had appellant so testified upon the present trial his identity would have been established without any other testimony on the subject.

In Garza v. State, 159 Tex. Cr. R. 234, 262 S.W. 2d 722, cited by appellant, the sheriff testified that the defendant had admitted to him that he had been previously convicted “at some undisclosed time and for some undisclosed felonies” in the two counties which the records showed a person of the same name had been convicted, as alleged for enhancement purposes.

In Huston v. State, 126 Tex. Cr. R. 355, 71 S.W. 2d 876, a deputy sheriff testified that the defendant was tried in the district court of Hale County in 1928 and again in 1930. The witness testified that he did not remember the number of the case and did not testify that the offense was burglary, the offense of which a man of the same name was, according to the records introduced and the allegation of the indictment, convicted in Hale County.

Neither of these cases relied on by appellant supports his position. Here the evidence shows the prior conviction to have been in the same court and that appellant had admitted under oath that he was the person so convicted.

I respectfully enter my dissent.