Childress v. State

Full title: Robert Steven Childress, Appellant v. State of Texas, Appellee

Court: Court of Appeals of Texas, Eleventh District, Eastland

Date published: Jan 23, 2003

No. 11-02-00200-CR (Tex. App. Jan. 23, 2003)

Opinion

No. 11-02-00200-CR.

January 23, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).

Appeal from Palo Pinto County.

Before ARNOT, C.J., and WRIGHT, J., and McCLOUD, S.J.¹

1 Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.

Opinion

AUSTIN McCLOUD, Senior Justice

The jury found appellant guilty of burglary of a habitation with intent to commit theft. Appellant entered his plea of true to an enhancement paragraph in the indictment, and the jury assessed appellant's punishment at confinement for 20 years. Appellant appeals. We affirm. In a single issue, appellant contends that the trial court erred during the voir dire examination of the jury panel when the court's preliminary instructions to the panel implied that appellant had been previously convicted of a felony. The record reflects the following remarks made by the trial court to the jury panel:

THE COURT: All right. I will further instruct you that our law provides that under certain circumstances, punishments can be enhanced. They can be raised a level or more. And one of those provisions of law is that if somebody has been convicted of a felony previously, one time, that the range of punishment can be raised one notch from that which is provided for the primary offense.

For example, if a person is convicted of a third-degree felony and the range of punishment is two to ten years, and then it is alleged and proven that that person has been previously convicted before of a felony, then the law will raise that punishment up to a higher risk, two to twenty years in prison; in other words, that which is provided for the next higher felony.

If someone is convicted of a second-degree felony, and then it's alleged and proven that they have one final felony conviction, instead of two to twenty, the punishment range is raised up to a first-degree felony, five to ninety-nine or life in prison and the option of a fine.

Everybody understand how punishments can be enhanced by allegations of prior final felony convictions?

(Venire members respond affirmatively.)

THE COURT: Any questions?

(No response.)

THE COURT: All right. Let me ask you this question. In a burglary of a habitation, intent to commit theft, second-degree felony, range of punishment two to twenty years, if there is a conviction, you're on the jury, during the punishment phase of the trial it is alleged and proven that that person, he or she, has a prior felony conviction and the Court instructs you that the range of punishment is from a low of five years to a high of ninety-nine years or life and a fine of up to $10,000, can you reasonably and fairly consider the full range of punishment in a case like that from a low of five years to a high of ninety-nine years or life and a fine of up to $10,000? Anybody who cannot consider the full range of punishment in a case like that, raise your hand.

The court in Frausto v. State, 642 S.W.2d 506, 509 (Tex.Cr.App. 1982), stated:

To reiterate, a prosecutor may inform the jury panel of the range of punishment applicable if the State were to prove a prior conviction for enhancement purposes, but it may not inform the jury of any of the specific allegations contained in the enhancement paragraph of a particular defendant's indictment.

The trial court did not violate the rule announced in Frausto. The court generally informed the panel of the applicable punishment. See Martinez v. State, 588 S.W.2d 954, 956 (Tex.Cr.App. 1979). The court did not inform the jury panel of "the specific allegations contained in the enhancement paragraph" of appellant's indictment. Furthermore, no timely objection was made to the trial court's remarks to the jury panel. See Penry v. State, 691 S.W.2d 636, 649 (Tex.Cr.App. 1985). The judgment of the trial court is affirmed.