Toone v. State

Appellant, under the provisions of Art. 63, P. C., was assessed a penalty of life imprisonment in the State penitentiary, as an habitual offender, for the offense of forgery.

The sufficiency of the evidence to support the conviction is not seriously challenged.

Appellant contends that the indictment supporting one of the prior convictions relied upon by the State to enhance the punishment was defective, and that, therefore, there was not, and could not have been, a prior valid conviction of appellant under such indictment. The rule is well-established that a judgment of conviction not appealed from cannot be set aside in collateral proceedings for irregularities in the trial. Ex parte Butler, 31 S.W.2d 827, 116 Tex.Crim. R.; Ex parte Holland, 238 S.W. 654, 91 Tex.Crim. R.. The rule is deemed applicable and controlling here. The judgment by reason of the defect in the indictment was not void. Moreover, the judgment shows that appellant pleaded guilty to the offense charged.

Appellant asserts that it was error for the trial court to refuse to permit him to argue to the jury the question of punishment, as also his defense. In such a case as here presented, the question of punishment is not for the jury. The punishment was fixed by the statute mentioned. It is the province of the jury, in such cases, to determine only the guilt or innocence of the accused. Wilson v. State, 139 S.W.2d 598, 139 Tex.Crim. R.; Haro v. State,105 S.W.2d 1093, 132 Tex.Crim. R..

The facts fail to reflect any defense to the State's case. There was, therefore, no defensive issue.

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.