Brown v. State

HAWKINS, Presiding Judge.

Our State’s Attorney, the Honorable Ernest S. Goens, has filed a brief for the State, which contains a concise and accurate statement of the facts, and presents a clear picture of the legal question involved. We incorporate said brief as part of our opinion.

“This is an appeal from the County Court of Young County, Texas, from a conviction for the offense of selling whisky in a dry area, and a punishment of 90 days in jail and a fine of $400.00.

“The complaint and information each alleged two prior convictions of an offense of like character. The facts in this case are sufficient to support the conviction. The record, as brought forward, contains no bills of exception; neither was there any complaint urged as to the court’s charge or special charges requested.

“Appellant, in his motion for a new trial, complains for the first time that one of the prior convictions set out in the instant case, to-wit, No. 5607, had been previously used by the State for the purpose of enhancing the penalty in another prosecution against this appellant, to-wit, in cause No. 5731, and upon a hearing on appellant’s motion- for a new trial in this cause he offered in evidence the complaint, information and judgment in cause No. 5731, and both the complaint and information in said cause No. 5731 each contained two counts, it being charged in the first count of the complaint and information that the accused did, on or about the 29th day of November, 1944, unlawfully possess for the purpose of sale whisky, following with an appropriate allegation that Young Couny was a dry area; and,

“In the second count of said complaint and information it was charged that the accused, on or about the 29th day of November, A. D., 1944, did unlawfully possess for the purpose of sale whisky, following with an appropriate allegation that Young County was and is a dry area, and then in the second count there is an allegation of one prior conviction of the accused of an offense of like character in cause No. 5607, and it is noted that the allegation with reference to the prior conviction that it applies specifically to the second count and not the first count, since the following language is used: ‘That prior to the commission of the aforesaid offense set forth in the first paragraph of the second count of this information that the said Foster Brown, to-wit, on the 19th day of July, 1943, in the County Court of Young County, Texas, in cause No. 5607, was duly convicted,’ etc.; and,

“It will be noted that the judgment recites ‘Foster Brown waived a jury. Thereupon the information was read to the defendant and he plead guilty to the accusation therein contained (in the first count of said information), and the court having heard the evidence, it is considered and adjudged by the court that said defendant, Foster Brown, is guilty of possession of liquor for the purpose of sale, and assess his punishment thereof at a fine of one hundred dollars.’ It will be noted that the punishment assessed is the minimum punishment that may be assessed for a conviction under Article 666-41, Penal Code of Texas.

“It then appears to us quite obvious, as is definitely stated in the judgment, that appellant plead guilty only to the first count in cause No. 5731 and was convicted only for the offense of possession of whisky for the purpose of sale in a dry area, as set out in cause No. 5731, and that therefore cause No. 5607, as alleged in the second count of the complaint and information in cause No. 5731, was not used by the State for enhancing the penalty in said cause, and in fact, the penalty was not enhanced, and that the appellant in said cause was tried and convicted as a first offender and given the minimum punishment provided under the statute for such offense.”

This court is committed to the proposition that for the purpose of enhancing the punishment a prior conviction may not be used but one time. Many cases so holding will be found in the notes under Articles 61, 62, 63,' and 64. Vernon’s Ann. Tex. P. C. In the present case, appellant is seeking to have us go one step further. In the second count of cause No. 5731,' the State alleged a prior conviction in cause No. 5607, thereby making available to the State, if it so desired, the use of the conviction in No. 5607 to enhance the punishment in No. 5731. It is obvious that the State did not use the conviction in No. 5607 to enhance the punishment. Appellant is seeking to have us say that because the averments in the second cause in cause No. 5731 would have permitted the use of the prior conviction in No. 5607, that the State is precluded from now using the conviction in No. 5607 to enhance the punishment in the present case, although it is perfectly clear that it had never before been used to enhance the punishment in any case. We are not inclined to go so far as urged by appellant. See Sigler v. State, 143 Tex. Cr. R. 220, 157 S. W. (2d) 903.

The judgment is affirmed.