Beyer v. State

ON APPELLANT’S MOTION FOR REHEARING

DICE, Judge.

*284Appellant strenuously insists that we were in error in reforming the trial court’s judgment so as to find appellant guilty of the primary offense of cattle theft and fix his punishment at confinement in the penitentiary for a term of three years as found by the jury in their verdict No. 1 returned under the first count of the indictment.

It is first contended that the two verdicts returned by the jury were nullities because they in effect found appellant guilty of two different felony offenses under one single indictment. Numerous cases are cited by appellant which support the proposition that an accused cannot be convicted of more than one offense under a single indictment.

While such is the rule in this State, appellant does not here stand convicted of two different offenses under the one indictment. In each verdict, the jury found appellant guilty of the primary offense of cattle theft. The finding of the jury in the second verdict that appellant had been previously convicted of cattle theft was not a finding of his guilt of another offense. The statutes, Articles 61-64, V.A.P.C., authorizing enhancement of punishment upon proof of a prior conviction or convictions do not create an offense but merely prescribe a more severe punishment. 16 Texas Jur. 2d, par. 403, page 624; Ellison v. State, 154 Texas Cr. Rep. 406, 227 S.W. 2d 545.

Appellant next insists that we were in error in reforming the court’s judgment because the two verdicts returned by the jury and accepted by the court were so indefinite, uncertain and inconsistent as to the punishment that they cannot support any judgment of conviction rendered thereon.

In support of his contention appellant cites certain decisions by this Court where it has been held that verdicts finding an accused both “guilty” and “not guilty”; assessing the punishment at a fine “and/or” confinement in jail; fixing two different punishments for the same offense or fixing a punishment in excess of that provided by law are too indefinite to support a judgment of conviction thereon.

We have carefully reviewed the cases cited and remain convinced that the verdicts returned by the jury in the instant case were sufficient to support the judgment of conviction, as reformed by this Court, finding appellant guilty of the primary offense of cattle theft and ordering that he be punished by confinement in *285the penitentiary for three years as fixed by the jury in its verdict No. 1 which was returned into the court.

As heretofore pointed out, each verdict returned by the jury found appellant guilty of the primary offense of cattle theft. In verdict No. 1, the jury specifically fixed appellant’s punishment at confinement in the penitentiary for three years. No punishment was fixed by the jury in the second verdict.

Remaining convinced that a proper disposition was made of the case upon original submission, the motion for rehearing is overruled.

Opinion approved by the Court.