Opinion
No. 18933.
Delivered April 7, 1937. State's Rehearing Denied (Without Written Opinion) May 12, 1937.
Burglary — Prior Conviction.
In prosecution for burglary, where the State introduced in evidence certified copies of indictment and judgment (showing prior conviction of defendant for same offense and of appeal therefrom) for purpose of enhancing defendant's penalty, but did not show that defendant had been sentenced, or the disposition of the appeal, conviction was reversed, for although the burden was not on the State to prove that the prior conviction had not been reversed or set aside, however, in view of the fact that the State proved that an appeal had been taken, and failed to show that defendant had been sentenced, it could not be presumed that said judgment of conviction was final.
Appeal from District Court of Freestone County. Tried below before the Hon. Lex Smith, Judge.
Appeal from conviction for burglary; penalty, confinement in penitentiary for twelve years.
Reversed and remanded.
The opinion states the case.
H. L. Williford, of Fairfield, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is burglary; the punishment, confinement in the penitentiary for twelve years.
For the purpose of enhancing the penalty it was averred in the indictment, in substance, that, prior to the commission of the present offense of burglary, appellant had been convicted in the district court of Navarro County of an offense of like character, to-wit: burglary. The State introduced in evidence certified copies of the indictment and judgment showing a prior conviction for burglary in the district court of Navarro County. It was not shown that appellant had been sentenced. The district clerk of Navarro County testified that appellant appealed from said judgment of conviction. The disposition of the appeal was not shown. In the state of the record, the opinion is expressed that it cannot be presumed that the judgment was final. It is true that the burden was not on the State to prove that the judgment had not been reversed or set aside. However, in view of the fact that the State proved that an appeal had been taken, and failed to show that appellant had been sentenced, it cannot be presumed that said judgment was final.
The judgment is reversed and the cause remanded.
Reversed and remanded.
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.