McCoy v. State

ON MOTION FOR REHEARING

MORRISON, Judge

As pointed out in our original opinion, the jury were instructed to acquit if they believed or had a reasonable doubt that appellant took only one of the radios alleged in the indictment. Such instruction was clearly more favorable to appellant than a charge on misdemeanor theft or a charge authorizing a finding of guilt of felony theft not enhanced by reason of prior convictions. In Punchard v. State 142 Texas Crim. Rep. 53, 154 S.W. 2d 648, this court held that a charge which authorized an acquittal if the jury entertained a reasonable doubt as to whether the accused was the same person convicted in one of the prior convictions alleged for enhancement was more favorable to accused than one which would have permitted a finding of guilt as to the primary offense alone because it placed a greater burden of proof upon the State. Such reasoning was followed by this court in Cox v. State, 157 Tex. Crim. Rep. 51, 246 S.W. 2d 474, and in Handy v. State, 160 Tex. Crim. Rep. 258, 268 S.W. 2d 182.

Remaining convinced that we properly disposed of this matter originally, appellant’s motion for rehearing is overruled.