Mayo v. State

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

Appellant was convicted of kidnapping and assessed punishment by the jury at 10 years. The Court of Appeals affirmed. We granted petition for review to consider whether the Court of Appeals improperly found harmless error in the admission of evidence of a void conviction.

Appellant asserts that since the prior conviction was based upon a void information,¹ it was reversible error to allow the prior conviction in evidence before the jury at the punishment stage of the trial. The verdict reflects that the allegation of the prior conviction, as set out in the enhancement paragraph of the indictment, was found by the jury as "Not True." The Court of Appeals determined from the finding of the jury that it could not presume that the jury considered the void prior conviction further for any purpose even though the prosecutor's argument at the punishment stage strongly emphasized the appellant's void prior conviction.

To determine whether the admission of the void prior conviction was harmless error, the court must look to the facts and circumstances of each case. Ex parte Flores, 537 S.W.2d 458 (Tex.Cr.App. 1976) and cases cited therein. In the present case the record reflects on several occasions that the prosecutor at the punishment stage referred to the void prior conviction by the following:

"Ladies and gentlemen of the jury, you've been presented with evidence that the defendant, Randy Mayo, has received a prior conviction of a felony offense in Hopkins County, Texas prior to the offense that you found him guilty of today. Following the prior conviction the defendant, Randy Dale Mayo, was placed on probation. He was given a chance, one chance. His probation was subsequently revoked when he violated the terms of his probation. Threw that chance away. Given one chance. Taken away.

* * * * * *

"Ladies and gentlemen, this defendant, Randy Mayo, has had two chances. Both chances have been taken away.

"Ladies and gentlemen, do not give the defendant, Randy Mayo, another chance, for he's had two chances, and by his own actions they've been taken away.

* * * * * *

"Ladies and gentlemen, it's not easy to ask for the maximum penalty, but considering the nature of this offense and the violent nature of this offense and the fact that the defendant, Randy Dale Mayo, has had two chances and that both

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chances were taken away, the State would ask you to carefully consider assessing the defendant, Randy Dale Mayo, the maximum punishment of twenty years.

* * * * * *

"I would ask you to keep in mind the evidence that has shown that the defendant, Randy Mayo, received one chance. It was taken away by his own actions. He received a second chance. That was taken away by his own actions, and ladies and gentlemen, do not give this defendant, Randy Mayo, a third chance."

The emphasis by the prosecutor on the void prior conviction only could have enhanced the prejudicial effect of the already permissible void prior conviction.² The jury assessed punishment at 10 years. This is a maximum penalty for a third degree felony. V.T.C.A., Penal Code Sec. 12.34. The punishment taken with the prosecutor's closing argument as well as the void prior conviction, even in light of a jury answer of "Not True" to the enhancement paragraph, we hold was harmful to the defendant. See Ex parte Flores, supra, and cases cited therein.

Accordingly, the judgments of the Court of Appeals and the District Court are reversed and the cause is remanded to the District Court.

¹ The prior conviction was for forgery. The information is void for failure to allege the maker did not authorize the act.Ex parte Bilton, 602 S.W.2d 534 (Tex.Cr.App. 1980). Appellant objected to admission of the prior conviction on this ground.

² The controlling issue, as conceded by the dissent, is whether the erroneously admitted prior conviction "might have contributed to the penalty assessed." The significance of the jury argument set out above is that it demonstrates the extent to which the inadmissible evidence was emphasized to the jury, and as a consqeuence, the high probability that it did contribute to the punishment assessed. While the dissent says the jury argument should not have been made, we express no opinion on whether it should or should not have been made. We simply recognize the having been made, we cannot hold, as the dissent would, that the matter referred to in that argument did not contribute to the jury's decision to assess the maximum term of imprisonment.