Acosta v. State

ONION, Presiding Judge,

concurring.

We are here presented with a burden of proof question relating to the allegations of two prior non-capital felony convictions from California.

The escape conviction with punishment enhanced by the two prior convictions were reversed by the Corpus Christi Court of Appeals holding that the prior California convictions were not properly utilized to enhance punishment since the felony convictions were based on informations, not indictments, and the State failed to show a waiver of indictment in these California cases, the law being presumed to be the same in California as Texas in absence of a showing to the contrary. There was no showing as to the California law regarding prosecution of felonies upon informations.

This court granted the State’s petition for discretionary review to examine this holding by the Court of Appeals.

The question presented begs for clarification for the benefit of the bench and bar. In reversing the Court of Appeals, the majority does not, in my view, adequately explore or come to grips with the question. For this reason I write.

V.T.C.A., Penal Code, § 12.42(d), provides:

“(d) If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.”

Said § 12.42(d) and its forerunners have been held valid against constitutional attack. Moore v. State, 629 S.W.2d 266 (Tex.App.1982); Passmore v. State, 544 S.W.2d 399 (Tex.Cr.App.1976), and cases there cited; Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). See Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); 25 Tex.Jur.3rd, Crim. Law, § 3710, p. 724.

It is true, of course, that in proceedings under § 12.42(d) and its forerunners most prior convictions are or were prior Texas felony convictions. It has long been held, however, that a conviction in a court of a sister state may be used to enhance punishment in felony cases if the crime constituted a felony in Texas. Garcia v. State, 140 Tex.Cr.R. 340, 145 S.W.2d 180 (Tex.Cr.App.1940); Massey v. State, 160 Tex.Cr.R. 49, 266 S.W.2d 880 (Tex.Cr.App.1954); Ex parte Auten, 447 S.W.2d 159 (Tex.Cr.App.1969); 25 Tex.Jur.3rd, Crim.Law, § 3713, pp. 736-737.

It is also well established that if there are allegations in the indictment to invoke the *830provisions of said § 12.42(d) for the purpose of enhancing punishment then the burden of proof is upon the State beyond a reasonable doubt. Bullard v. Estelle, 665 F.2d 1347 (5th Cir.1982); Jackson v. State, 571 S.W.2d 1 (Tex.Cr.App.1978). See.and cf. Green v. State, 387 S.W.2d 410 (Tex.Cr.App.1965); Texas Criminal Pattern Jury Charges, C.P.J.C. 12.42(d), p. 85; McClung, Jury Charges for Texas Criminal Practice (1981), p. 20; 1 Branch’s Ann.P.C., 2d ed., p. 689; Erisman Manual of Reversible Errors, § 618 (1st Ed.). See also 25 Tex.Jur.3rd, Crim.Law, § 3716, p. 749.

Article I, § 10 of the Texas Constitution relates to the rights of an accused in criminal prosecutions. It provides in part:

“Sec. 10. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof ...; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.”

Accordingly it has been held that in a Texas felony case the State Constitution requires an indictment presented by a grand jury and such is essential to a valid trial. Hollingsworth v. State, 87 Tex.Cr.R. 399, 221 S.W. 978 (Tex.Cr.App.1920). See also Ex parte Krarup, 422 S.W.2d 173 (Tex.Cr.App.1967); Kennedy v. State, 161 Tex.Cr.R. 303, 276 S.W.2d 291 (Tex.Cr.App.1954); Turpin v. State, 86 Tex.Cr.R. 96, 215 S.W. 455 (Tex.Cr.App.1919); Turman v. State, 81 Tex.Cr.R. 320, 196 S.W. 181 (Tex.Cr.App.1917); Ethridge v. State, 75 Tex.Cr.R. 41, 172 S.W. 784 (Tex.Cr.App.1915); Ex parte Nitsche, 75 Tex.Cr.R. 131, 170 S.W. 1101 (Tex.Cr.App.1914); Kinley v. State, 29 Tex.App. 532, 16 S.W. 339 (1891); Graham v. State, 43 Tex. 550 (1875). See generally 30 Tex.Jur.2d, Indict & Info., § 7, at 542.

In Melacon v. State, 367 S.W.2d 690 (Tex.Cr.App.1963), the State sought to enhance punishment under former Article 63, V.A.C. C.P., 1925, a forerunner of said § 12.42(d) by allegation of a prior Texas felony conviction and a prior Louisiana felony conviction. With regard to the Louisiana conviction, this court wrote:

“The evidence is insufficient because of the variance between the allegation of the indictment that the conviction was upon an indictment and evidence showing it was upon information. It is also insufficient because of the presumption that the Laws of Louisiana are the same as the Laws of this state. Green v. State, 165 Tex.Cr.R. 46, 303 S.W.2d 392; Ex parte Cooper, 163 Tex.Cr.R. 642, 295 S.W.2d 906. A conviction for a felony cannot be had in Texas without an indictment. See Art. I, Sec. 10, Constitution of Texas, Vernon’s Ann.St.”

In Melancon the State made no effort to prove that Louisiana laws permitted prosecution of felonies on informations. If it had done so then the presumption would never have arisen. Melancon made clear that in determining the sufficiency of evidence relating to a prior felony conviction in a sister state alleged for enhancement of punishment, it is to be presumed that the laws of the sister state are the same as the laws of Texas in absence of a showing to the contrary. See also Holcombe v. State, 424 S.W.2d 635 (Tex.Cr.App.1968).1

In Masters v. State, 437 S.W.2d 868 (Tex.Cr.App.1969), it was held the trial court did not err in refusing to quash the enhancement portion of the indictment where the motion to quash came after made proof of *831Oklahoma statutes authorizing prosecution of felonies in that state upon information. Thus the State overcame the presumption that would have otherwise prevailed.

Article 1.141, V.A.C.C.P., was enacted in 1971 (Acts 1971, 62nd Leg., p. 1148, ch. 260, eff. May 19, 1971). It provides:

“A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment of any offense other than a capital felony. On waiver as provided in this article, the accused shall be charged by information.”

King v. State, 473 S.W.2d 43 (Tex.Cr.App.1971), involved a direct appeal where a waiver of indictment was executed under Article 1.141, supra. King held that the state constitutional requirement of an indictment in a felony case was not jurisdictional but was a privilege or right of an accused, which guarantee could be waived in accordance with the statute in a non-capital felony case. Thus the statute permitting waiver of indictment was not violative of the constitutional provision and where there has been a valid waiver the trial court may proceed on an information in a non-capital felony case.

King made clear, however, for the waiver of indictment to be effective it must be intelligently, voluntarily and knowingly given by the accused while represented by counsel, and if an accused has not effectively waived his right to indictment in full accordance with the statute, the felony information is void, and as the validity of the felony information is essential to the court’s jurisdiction as a substitute for an indictment, an indictment is still mandatory in absence of a valid waiver.

In King the waiver of indictment in the appellate record was in accord with the statute and upheld.

In Lackey v. State, 574 S.W.2d 97 (Tex.Cr.App.1978), it was held that the absence in the appellate record of a valid waiver of an indictment as required by Article 1.141, supra, mandated reversal of the felony conviction on direct appeal. Further, the court stated: “We hold that appellant did not waive the right to be tried by an indictment by failing to voice an objection to trial upon a felony information.”

Thus on direct appeal of a non-capital felony conviction the appellate record must affirmatively reflect a valid waiver of an indictment and a felony information. Without the same an indictment is still a necessity. An indictment is not waived by failure of the accused to object to the absence of the same.

Gibbs v. State, 544 S.W.2d 403 (Tex.Cr.App.1976), was a direct appeal of a rape conviction where the indictment also alleged a prior rape conviction in Idaho for enhancement of punishment.

While he did not object at trial, Gibbs on appeal contended the Idaho rape conviction was unusable for enhancement as it was based upon an information rather than an indictment. At trial the State made no effort to show what the laws of Idaho were. The court, without expressly mentioning the presumption that laws of Idaho are the same as Texas in absence of proof to the contrary, noted the 1971 enactment of Article 1.141, V.A.C.C.P., permitting non-capital felony trials in Texas and utilized in effect the presumption. Without mentioning burden of proof, the court then proceeded to find waiver in the recitations of the Idaho judgment to satisfy Article 1.141, supra, and King.2

In Hall v. State, 619 S.W.2d 156 (Tex.Cr.App.1980), on original submission a panel *832opinion reversed the voluntary manslaughter conviction because the indictment alleged for enhancement of punishment a pri- or Minnesota felony conviction based “upon an indictment” while the proof showed the out-of-state conviction was based upon an information. In holding the variance rendered the proof insufficient, the panel opinion cited Boone v. State, 450 S.W.2d 614 (Tex.Cr.App.1970), and Melancon v. State, supra.

The majority of the court en banc on the State’s motion for rehearing overruled Me-lancon and Boone to the extent of any conflict and held that allegation of “indictment” and proof of “information” is not a material or fatal variance which would mislead a defendant to his prejudice.

In the opinion on rehearing the Hall court went further and wrote:

“The appellant also complains that there is insufficient evidence to show that the law in Minnesota authorized prosecution of felonies by information. In the absence of proof it is presumed that the law of another state is the same as this state. Ex parte Nichols, 604 S.W.2d 81 (Tex.Cr.App.1979); Almand v. State, 536 S.W.2d 377 (Tex.Cr.App.1976); McKinney v. State, 505 S.W.2d 536 (Tex.Cr.App.1974); Jackson v. State, 494 S.W.2d 550 (Tex.Cr.App.1973). Since a felony may now be prosecuted by information in this state, Art. 1.141, V.A.C.C.P., it is presumed that in Minnesota a felony may be prosecuted by information. Gibbs v. State, 544 S.W.2d 403 (Tex.Cr.App.1976). This ground of error is overruled.”

It does not appear that the question of waiver of indictment was raised in Hall.

Turning to the facts of this case, it is observed that the indictment alleged two prior California felony convictions for the purpose of enhancement of punishment. One enhancement paragraph alleged conviction for the possession of a controlled substance, heroin, on September 27,1976, upon an information pending in the Superior Court of Fresno County, and the second enhancement paragraph alleged the conviction for burglary, first degree on May 22, 1972, upon an information pending in the Superior Court of Fresno County.

In support of these allegations the State offered its exhibits 8, 9, 10 and 11 which were California pen packets and exemplified court documents relating to the alleged prior convictions. These exhibits and other evidence offered clearly supported the enhancement allegations. The State, however, offered no proof of California laws, and there was no attempt to show waiver of indictments in the prior convictions.

Only to exhibit No. 10, an “abstract of judgment” and other certified and exemplified court documents did appellant offer an objection as follows:

“I object to 10 on the grounds that the prosecution in the case is predicated ... is a prosecution for a felony predicated on an information and there is no waiver of indictment in the file and the court is well aware that the law of California is presumed to be the same as the law in Texas and no one may prosecute on an information without a waiver.
“Three other unrelated objections to exhibit no. 10 were offered and then all objections were overruled and the exhibit was admitted.”

There is no requirement in Texas that the requisites of a judgment must include a recitation of a waiver of indictment, Article 42.01, V.A.C.C.P., albeit better practice even though not statutorily required. Presuming that California law is the same as Texas law in absence of proof to the contrary, there was no requirement that the “abstract of judgment” and other documents in exhibit 10 in and of themselves *833include a recitation of a waiver of indictment. The objection directed only to exhibit No. 10 was without merit and was properly overruled.3

Contrary to the Court of Appeals’ opinion, the objection to exhibit No. 10 was the only objection offered at trial relating to the complaint now urged on appeal. Appellant did recite in his motion for new trial his appellate complaint, but the motion appears to have been overruled without a hearing.

On appeal appellant contends that there “was insufficient evidence introduced by the State of Texas at the hearing on punishment to authorize enhancement of appellant’s punishment.”

In his response to the State’s petition for discretionary review, appellant states in part:

“What appellant has done since the time of trial, and continues to do, is object to the admissibility of the ‘pen packets’ offered by the State of Texas at trial; and further state that there was insufficient evidence introduced by the State of Texas at the hearing on punishment to authorize enhancement of appellant’s punishment * * * Appellant herein has not attacked any variance between the enhancement allegations in the indictment and the proof shown by the State. His objection and points on appeal, again, are that the State failed to meet its burden. * * * the appellant has never requested that this court or any other court ‘invalidate’ any alleged California convictions. * * * Appellant is not attacking the validity of the alleged convictions themselves but is attacking the State’s efforts in attempting to prove the allegations contained * * * in the indictment. * * * The State could have met that burden by doing one of two things; first the State could have shown that appellant waived his right to indictment if that were the case, second the State could have shown that the laws of the State of California do not require indictments, but permit prosecution to be had upon information.”

The State did not offer proof of the laws of California, so we must deal with the presumption that the laws of California are the same as the laws of Texas in absence of proof to the contrary. Here the proof supported the facial allegations of the indictment as to the prior convictions.

Further, we observe that the allegations of prior convictions were for non-capital felonies and occurred after the effective date of Article 1.141, supra. While Texas law requires an affirmative waiver of an indictment in a non-capital felony case, there is no requirement that the waiver of necessity be reflected in a formal judgment or sentence. There is also a presumption of the regularity of the judgment.

In Moore v. State, 629 S.W.2d 266 (Tex. App.1982), it was held that where the State made a prima facie showing that the judgment of conviction used to enhance punishment and the resulting sentence were regular on their face and there was no affirmative showing of any defect by the defendant, the presumption of regularity in the prior judgment prevailed.

Before a prior conviction may be relied upon for enhancement of punishment, it must have become final prior to the commission of the primary offense alleged in the indictment. Arbuckle v. State, 132 Tex.Cr.R. 371, 105 S.W.2d 219 (Tex.Cr.App.1937); Carter v. State, 510 S.W.2d 323 (Tex.Cr.App.1974). Once, however, the State makes prima facie proof of finality then the burden shifts to the defendant. Lewis v. State, 501 S.W.2d 88 (Tex.Cr.App.1973); Carter v. State, supra; Ashley v. State, 527 S.W.2d 302 (Tex.Cr.App.1975); Tinney v. State, 578 S.W.2d 137 (Tex.Cr.App.1979); Williams v. State, 596 S.W.2d 862 (Tex.Cr.*834App.1980). See also Hamlin v. State, 632 S.W.2d 203, 206 (Tex.App.—Ft. Worth 1982).

In 25 Tex.Jur.3rd, Crim.Law, § 3716, p. 752, it is written:

“Once the state has made a prima facie case, the burden then shifts to the defendant. It has been held that the defendant has, generally, a burden to sustain his assertion that he had received a pardon, that the judgment had been set aside, that a new trial had been granted in the prior case, or that an appeal had been taken therein, or that the judgment of conviction relied on for enhancement purposes is void. These burdens do not, ordinarily, fall on the state.... ”

In the instant case the judgments, sentences and pen packets were properly certified and appellant was identified with them by expert fingerprint testimony. The proof was in conformity with the enhancement allegations in the indictment that the prior convictions were upon informations. Once the State made a prima facie case the burden shifted to the appellant to show that the prior convictions were void because of lack of a waiver of the indictment in each case.

The appellant did not offer evidence of a lack of indictment waivers and did not in the trial court attack the insufficiency of the evidence to support the enhancement allegations. His only objection was to one exhibit because it did not include indictment waivers. This objection was without merit as previously mentioned. He makes no claim the California convictions were void, only that the State did not meet its burden of proof.

While it would have removed all question from the case if the State had made proof that California law did not require an indictment in a felony case, or utilizing the presumption that California law was the same as Texas showed that there were waivers of indictment, I cannot conclude that reversible error is reflected by the circumstances. Once the State made out a prima facie case the burden shifted to the appellant, which burden he did not sustain.

For the reasons stated, I concur.

CAMPBELL, J., joins this opinion.

. In Holcombe the defendant’s mere admission that he had been convicted in a sister state as alleged did not constitute proof that laws of the sister state authorized prosecution for felony on information.

. There may be a serious question as to the correctness of the holding as to Gibbs. A current examination of the appellate record in Gibbs reflects the prior Idaho conviction was for rape in 1950 when rape was a capital felony offense in Texas. Article 1183 and 1189, V.A. P.C., 1925. Further, the Idaho conviction occurred prior to the 1971 enactment of Article 1.141, supra, permitting prosecution only of non-capital felonies upon information.

Still further, one may question the validity of the waiver found.’ The Idaho judgment reflected Gibbs appeared in open court with counsel and pleaded guilty to the felony rape *832information. The judgment also reflected when asked if he had any legal cause to show why judgment should not be pronounced against him Gibbs answered “None.” Upon further reflection it hardly seems that this would constitute a waiver in full accord with Article 1.141, supra, and King as Gibbs holds.

. Even if the State was required to prove waiver of an indictment, it would not be limited to proof by judgment or any one exhibit,