author: ODOM, Judge. DALLY, Judge,

text:
    Melvin C. SHIVERS, Appellant, v. The STATE of Texas, Appellee.
    No. 59627.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 13, 1978.
    C. David Stasny, Bryan, (on appeal), John M. Barron, Jr., Bryan, for appellant.
    Roland M. Searcy, Jr., Dist. Atty. and Larry A. Catlin, Asst. Dist. Atty., Bryan, (on appeal), W. T. McDonald, Jr., Dist. Atty. and W. W. Torrey, Asst. Dist. Atty., Bryan, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for possession of heroin; punishment, enhanced by proof of two prior convictions, was fixed at life by the terms of V.T.C.A., Penal Code Sec. 12.42(d).

Appellant’s court-appointed counsel has filed a brief in which he concludes the appeal is wholly frivolous and without merit. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Appellant has filed a pro se brief raising several grounds of error.

We have reviewed the record and briefs and agree that the appeal is frivolous, and we affirm the judgment.

The concurring opinion has seized upon one of the grounds urged in the pro se brief as an opportunity to argue that a long line of statutory construction be overruled. The established judicial construction of the felony habitual offender statute is that no felony conviction may be twice used under its provisions to obtain a punishment enhanced to life. The adoption of a new penal code in 1973 did not evidence any intent on the part of the legislature that a different interpretation should thereafter govern. See Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.) and the Practice Commentary to Sec. 12.42(d), supra. The legislature’s failure to indicate a change in intent is of significance because we are here addressing a matter of statutory construction, not of judicially created rules of decision, as in evidentiary matters.

The facts upon which the issue would turn in this case show that the doctrine against multiple use of prior convictions for securing punishment as a habitual offender was not violated. Appellant argues his pri- or conviction in Cause No. 9614 in the 85th Judicial District Court of Brazos County, used for enhancement in this case, had previously been used to secure a life sentence in 1969 in Cause No. 9985 in the 85th Judicial District Court of Brazos County. The history of that 1969 conviction, however, shows that the life sentence was set aside in a collateral attack in Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.). Hence, the prior conviction used here had not previously been used successfully to secure a life sentence. Johnson v. State, 158 Tex.Cr.R. 154, 253 S.W.2d 1006. Thus, the proposal to abandon the long-standing rule upon which appellant attempts to rely is not even necessary for the affirmance of this case, since appellant is not within the terms of that rule. The position would be mere dictum.

We do, however, take this opportunity to bring to the attention of the legislature the numerous complexities existing in this area of the law, and the ease with which the legislature could simplify those matters and the litigation involving them. For a comprehensive discussion of this unnecessarily complex area of the law we cite the concurring opinion in this case as recommended reading.

The judgment is affirmed.

DALLY, Judge,

concurring.

After a review of the record, counsel’s brief, and the pro se brief I believe one contention merits discussion. That contention is that appellant’s prior conviction in Cause No. 9614 for the offense of burglary in the 85th Judicial District Court of Brazos County had previously been used to enhance his punishment in another cause.

Appellant was indicted in 1969 in Cause No. 9985 in the 85th Judicial District Court of Brazos County for the primary offense of burglary with intent to commit theft under the former Penal Code. The indictment also alleged two prior non-capital felony convictions for purposes of enhancement of punishment under Article 63, Vernon’s Ann. P.C. (1925). These were a 1965 burglary conviction in Cause No. 9614 in the District Court of Brazos County and a conviction for burglary in Cause No. 9454 in the District Court of Brazos County. Appellant was convicted of the primary offense, and his punishment was assessed at life imprisonment pursuant to Article 63, supra. Appellant appealed this conviction to this Court; however, the conviction and life sentence were affirmed. Shivers v. State, 460 S.W.2d 915 (Tex.Cr.App.1970).

Subsequently, appellant filed, a post-conviction habeas corpus proceeding under the provisions of Article 11.07, Vernon’s Ann.C. C.P. There he contended that at the time his probation was revoked in Cause No. 9454 in the 85th Judicial District Court, which was one of the two prior burglary convictions alleged for enhancement, he was indigent, did not have counsel, and did not waive counsel. Following an evidentia-ry hearing in the convicting court, the trial judge entered findings of fact and conclusions of law that appellant’s allegations were correct and that he was entitled to the relief sought. This Court found that the evidence supported the trial court’s finding and ordered appellant released from the Department of Corrections and remanded to the custody of the sheriff of Brazos County to answer the indictment in Cause No. 9985. Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.1973).

On motion for rehearing, the State contended that if appellant was entitled to any relief it was that appellant’s sentence should be reformed to confinement in the Department of Corrections for a term of 12 years, the maximum sentence under Article 62, Vernon’s Ann.P.C. (1925), for the offense of burglary with intent to commit theft. This Court agreed, concluding:

“The State’s motion for rehearing is granted to the extent that the order remanding petitioner to the sheriff of Brazos County to answer the indictment in Cause No. 9985 is set aside, and it is ordered that petitioner’s confinement under this conviction cannot exceed 12 years in accordance with Article 62, V.A.P.C.” Ex parte Shivers, supra, at 902.

Appellant was indicted in the instant cause for the primary offense of knowingly and intentionally possessing heroin. Two prior felony convictions were alleged for the purpose of enhancement of punishment under V.T.C.A., Penal Code, Sec. 12.42(d). The first prior conviction alleged was appellant’s 1969 conviction for burglary of a building in Cause No. 9985 in Brazos County, which was the primary offense alleged in appellant’s conviction which was affirmed in Shivers v. State, supra. The other conviction which was alleged was appellant’s 1965 conviction for burglary in Cause No. 9614 in Brazos County. This conviction had previously been used to enhance punishment in Cause No. 9985.

The seminal case on the subject is Kinney v. State, 45 Tex.Cr.R. 500, 79 S.W. 570 (1904). There it was stated:

“. . . Evidently it never was intended that prior offenses could thus be made to do double duty; that is, that prior cases could be used to enhance the punishment in any given case more than once. To give the statute such an effect would be violative of the principle of former jeopardy, which inhibits a defendant from being convicted more than once for the same offense. The only difference is that here the same offense was used more than once in order to enhance his punishment. The statute allows these offenses to enter into a subsequent offense for the enhancement of the punishment in as many as four cases. There is no statutory authority that prior offenses can be used more than in the four cases on the contingencies mentioned. So it would follow that the judgment in this case cannot be sustained, because the same cases on which the enhanced punishment is predicated here had previously been exhausted.”

From the discussion to follow it will be seen that Kinney was based on a false premise; that is, that the multiple use of a prior conviction for enhancement purposes “would be violative of the principle of former jeopardy.”

Since at least 1895 the Supreme Court of the United States has held that recidivist statutes do not twice put a defendant in jeopardy for the same offense. Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895); McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912); Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Likewise, this Court has held that our recidivist statutes do not place a defendant in jeopardy a second time for the conviction so used. See e. g., Mullins v. State, 409 S.W.2d 869 (Tex.Cr.App.1966); Cherry v. State, 447 S.W.2d 154 (Tex.Cr.App.1969); Franks v. State, 462 S.W.2d 287 (Tex.Cr.App.1971); Schultz v. State, 510 S.W.2d 940 (Tex.Cr.App.1974).

The ruling in Kinney was criticized by Judge Beauchamp on motion for rehearing in Brown v. State, 150 Tex.Cr.R. 386, 196 S.W.2d 819 (1946). Kinney, however, was not overruled because the conclusion reached there had been consistently followed for the 42 years intervening. Judge Beauchamp stated:

“. . . In as much as the articles on the subject have been re-enacted by the legislature with a knowledge of the judicial construction given same, we would not at this time, under the general rule of construction, be justified in overruling the Kinney case and those which have followed it. The fact that we still adhere to the conclusion does not mean that we endorse the reasoning given.”

Likewise, our decision in Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975), followed the Kinney rule for the reason stated in the above-quoted language from Brown, despite the State’s contention that Sec. 12.42(d), supra, “should be construed differently from old Art. 63.” Carvajal v. State, supra, at 521. The Court quoted from the Practice Commentary as follows:

“Subsection (d) preserves prior Article 63 . And presumably, in the context of this and the following section, the old rules regulating use of prior convictions for enhancement will also apply. See e. g., Mayo v. State, 166 Tex.Cr.R. 470, 314 S.W.2d 834 (1957); Kinney v. State, 45 Tex.Cr.R. 496, 79 S.W. 570 (1904).”

The Court then stated:

“The State contends that the failure of the Legislature to prohibit the repeated use of the same prior convictions to enhance punishment manifests an intent that Kinney and its progeny be abandoned. It strikes us that the omission of any significant additional or different language in Sec. 12.42(d) cuts quite the other way. The Legislature was aware of the venerable Kinney rule, now seventy years old. The Legislature’s silence on the question of multiple use for enhancement purposes of prior convictions must evidence a lack of dissatisfaction with the established judicial construction of the statutes. A comparison of Y.T.C.A. Penal Code, Sec. 1.05(a), and the old Art. 7 does not dissuade us from the soundness of this conclusion.”

It thus appears that Kinney has been continuously followed by the decisions of this Court because of the principle of stare decisis. However, we have held that stare decisis should be controlling only if it makes sense or follows logical reasoning. Middleton v. State, 476 S.W.2d 14 (Tex.Cr.App. 1972). Moreover, the legislative silence toward the rules stated in Kinney should not be interpreted as legislative acceptance of that decision. In Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604 (1940), it is stated that “It would require very persuasive circumstances enveloping Congressional silence to debar this Court from reexamining its own doctrines.” In Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946), it was stated that “It is at best treacherous to find in Congressional silence alone the adoption of a controlling rule of law. We do not think under the circumstances of this legislative history that we can properly place on the shoulders of Congress the burden of the Court’s own error.” See also Boys Markets, Inc. v. Retail Clerk’s Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). Therefore, in the absence of any persuasive circumstances evidencing a clear design that legislative inaction be taken as acceptance of Kinney, the mere silence of the Legislature is not a sufficient reason for refusing to reconsider that decision. Boys Markets, Inc. v. Retail Clerk’s Union, Local 770, supra.

It appears that the Kinney rule was first followed some 36 years after it was stated in the cases of Miller v. State, 139 Tex.Cr.R. 406, 140 S.W.2d 859 (1940), and Cothren v. State, 139 Tex.Cr.R. 339, 140 S.W.2d 860 (1940). The judgment in Miller was reversed with Kinney the only authority cited. Cothren was reversed without the citation of any authority. The opinion merely states:

“The same conviction cannot be twice used for the purpose of enhancing a penalty. This has been so frequently held by this court and in recent cases that we do not consider it necessary to here discuss the matter or cite authorities.”

In Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 179 (1940), the defendant’s punishment had been affixed at life imprisonment pursuant to Art. 63, Vernon’s Ann.P.C. (1925). In reversing that case the court stated:

“It is shown that at a time prior to this trial this defendant had been tried for a similar offense, and that for the purpose of an enhancement of the punishment, the previous convictions used in the present case had been used for the purpose of enhancing the penalty in the former case. 140 Tex.Cr.R. 347, 145 S.W.2d 177. The same conviction cannot be twice used for enhancement purposes. In Kinney v. State, 45 Tex.Cr.R. 500, 78 S.W. 225, 79 S.W. 570, 571, this court said: ‘Evidently it was never intended that pri- or offenses could thus be made to do double duty; that is, that prior cases could be used to enhance the punishment in any given case more than once.’ See also Miller v. State, 139 Tex.Cr.R. 406, 140 S.W.2d 859 and Cothren v. State, 139 Tex.Cr.R. 339, 140 S.W.2d 860.”

Gooden was followed by the case of Sigler v. State, 143 Tex.Cr.R. 220, 157 S.W.2d 903 (1941). There the defendant had a 1934 felony conviction and a 1938 felony conviction out of Kaufman County. Thereafter, he was tried on a charge of theft in Bexar County, the indictment in that case charging the two prior Kaufman County convictions for enhancement of punishment. The jury found the defendant guilty of the primary offense and assessed punishment at 10 years in prison, ignoring the enhancement of punishment, as submitted in the court’s charge. He was thereafter tried for theft in Gregg County with the same two Kaufman County convictions used to affix the defendant’s punishment at life imprisonment. The defendant urged on appeal that when the Bexar County jury ignored the enhancement allegations that that was tantamount to being an acquittal and, therefore, constituted former jeopardy, and he further urged that he could not again be tried under the habitual criminal act, based upon the two previous convictions in Kaufman County. This Court, however, affirmed the Gregg County judgment which assessed the defendant’s punishment at life imprisonment. It was in this case that it appears that the Court first began to distinguish between the successful and unsuccessful use of prior convictions for enhancement purposes. We quote extensively from that opinion as follows:

“We have heretofore held that such prior offenses can be successfully used but once because of the fact, among other reasons, that the statute permitting such use is of a reformative nature. What that means the writer confesses his inability to know, especially where the additional offenses are more than one, and the necessary punishment a lifetime imprisonment, but be that as it may, we have been furnished with exhaustive briefs and argument by both sides to this question, and find ourselves with no well-defined authority in this State on this matter. We do think that such enhancement allegations are no part of the substantive offense, but are merely a guide for the court or the jury in affixing the final punishment in the event of a present conviction. It is no part of the charged theft, and no proof of another and different offense is needed nor permitted; it is but an historical fact to show the persistence of the accused, and the futility of ordinary measures of punishment as related to him. The accused is not again placed in jeopardy nor punished for the prior offenses, nor is there created new offenses, but such are merely offered for the purpose of arriving at the punishment to be assessed in the present case.
“24 Corpus Juris Secundum, Criminal Law, § 1958, p. 1143, says: ‘However, statutes authorizing a more severe penalty to be inflicted on one who is a persistent offender do not create an offense, nor inflict additional punishment for the prior offense, nor do they authorize a conviction on a charge of being an habitual criminal; they merely prescribe punishment for the subsequent offense which is to be more severe, because the offender’s persistence in the perpetration of crime evinces a depravity which merits greater punishment.’
“Suppose no proof was offered of the offense of theft over the value of $50 as charged in this indictment, but proof was offered relative to the fact of the prior convictions, and appellant’s identity and connection therewith established, could it be contended that such proffered prior convictions alone had established guilt for the herein charged theft? We think not; and we also therefore think that such prior offenses are not a part of the substantive offense of theft, but merely enter into the problem of fixing the punishment, provided guilt is satisfactorily shown to the jury in the present charge of theft. The only special pleas, such as former jeopardy, which can be heard for the defendant are:
‘1. That he has been convicted legally, in a court of competent jurisdiction, upon the same accusation, after having been tried upon the merits for the same offense.
‘2. That he has been before acquitted by a jury of the accusation against him, in a court of competent jurisdiction, whether the acquittal was regular or irregular.’ Art. 508, C.C.P.
“The only matters that we here find present that were present in any other case against this appellant was the presentation of the former convictions in the Bexar County case, which allegations were not used by the jury in affixing the penalty in that case, and which case was improperly tried, so this court said, and therefore in such case appellant has not been legally tried. Of course it is not contended that the facts upon which the Bexar County case was based are the same as the herein charged theft, and we think that for that reason also jeopardy in this offense should not attach. It is said in 12 Tex.Jur. p. 554:
‘Before an accused can interpose the defense of former jeopardy the former trial must have been upon the same identical criminal act for which the state is again seeking to prosecute him. This is also the rule as to the defense of former conviction, and former acquittal. The crime must be the same in both cases though the pleadings differ in immaterial circumstances. The same offense means the identical criminal act or omission; not the same offense eo nomine, or one of the same nature.’
“We do not find any Texas cases that bear directly in point on this question. We do have our attention called to a case by the Supreme Court of Kansas, State v. Schmidt, 92 Kan. 457, 140 P. 843, 844, in which the accused was tried as a persist--ent offender in 1912, and a prior conviction in 1905 was attempted to be utilized in order to enhance the punishment. At such time Schmidt was acquitted and of course no enhanced punishment was inflicted. Again in 1913 Schmidt was presented for trial, and again, among others, the offense of 1905 was alleged in order to show his persistency and to enhance his punishment. In such latter case he pleaded that it was improper to include therein the offense of 1905, he having been once placed in jeopardy therefor, and had been awarded an acquittal thereon, — -same having been once unsuccessfully used in an effort to enhance his punishment. That court held: ‘The conviction in 1905 is the only element the two informations have in common. They relate to separate crimes. The issues are not identical. Neither offense includes the other offense. In each information an act which constitutes an indispensable element of the crime is necessary to conviction which is different from any act necessary to conviction under the other. All the evidence necessary to prove the first charge would not establish the second, and all the evidence necessary to prove the second charge would not establish the other. * * * The doctrine of res judicata does not apply in criminal cases to particular facts in issue, as, for example, to the conviction in 1905, as it frequently does in civil cases. * * In criminal cases the ultimate test applied in determining the validity of a plea of former conviction or former acquittal is identity of offenses, and it is not decisive that the two offenses may have some material fact in common. [Quoting Lord Denman in Regina v. Button, 11 Ad. & Ellis, New Series, 946.] * * * ’
“Again the Supreme Court of Kansas said in the case of State v. Gassady, 121 Kan. 331, 246 P. 508, in the syllabus by the court: ‘The rule is followed that an acquittal on a charge of the sale of liquor as a second offense does not prevent the use of the same prior conviction as a basis (in conjunction with a different alleged second offense) for a later prosecution as a persistent violator.’
“In the case of Long v. State, 36 Tex. 6, page 13, it being one of early impression in this State, there is quoted the following: ‘Lord Campbell, C. J., in an English case observed: “A statement of a previous conviction does not charge an offense. It is only the averment of a fact which may affect the punishment. The jury do not find the person guilty of the previous offense; they only find that he was previously convicted of it, as a historical fact.” (Regina v. Clark, Dears, 198 and 201.)’ and we might add: to be used in affixing the punishment.
“We think that the allegations relative to previous convictions were not any element of the substantive offense charged, either in the Bexar County case, or in the present case, but merely an effort upon the pleader to have determined a more than ordinary provided penalty for an infraction of the statute in Bexar County, and upon the failure of the jury in Bexar County to favorably respond to such effort, such an endeavor was not successfully used as attempted.
“In line with the above reasoning, we hold that the State had a right to attempt to use such prior convictions in the present case, and that no jeopardy arose herein because of the unsuccessful attempt to use such prior convictions in the Bexar County trial. We express no opinion at this time relative to the proposition that had such former convictions been successfully used in the trial in Bexar County, and through the vagaries of chance appellant had become enlarged from his confinement and again placed upon trial with such prior convictions again alleged, but are merely passing upon such an unsuccessful use thereof.”

It is interesting to note that Kinney is not cited in Sigler.

Brown v. State, supra, was decided in 1946. As stated above, Judge Beauchamp severely criticized the Kinney rule as being “illogical and confusing.” It is for this reason that Kinney should no longer be followed; “[sjtare decisis should be controlling only if it makes sense or follows logical reasoning.” Middleton v. State, supra. Because Judge Beauchamp’s criticism shows the incorrectness and fallacy of the Kinney rule, we quote from it at length below:

“In the opinion of the writer such holding has always been illogical and confusing. Habitual criminality is the state of the individual and not a crime. 24 C.J.S., Criminal Law, § 1958, p. 1143. To allege and prove a state of the individual by whatever means the fact may be ascertained, whether because of repeated convictions or otherwise, does not allege and prove a crime. The allegations of former convictions are no part of the allegation of the substantive offense, but are to serve merely as a guide to the court in fixing the punishment in case of a present conviction. Sigler v. State, 143 Tex.Cr.R. 220, 157 S.W.2d 903. Hence, the question of jeopardy has no place in the consideration whatsoever. Any discussion of the question of jeopardy invariably leads to confusion, as it has definitely done in the instant case and the line of decisions considered.
“Beginning with Kinney v. State, 45 Tex. Cr.R. 500, 79 S.W. 570, 571, the opinions on the subject have consistently held that former convictions cannot be utilized more than once to enhance a penalty. Judge Henderson stated, in the Kinney case: ‘Evidently it was never intended that prior offenses could thus be made to do double duty; that is, that prior cases could be used to enhance the punishment in any given case more than once. To give the statute such an effect would be violative of the principle of former jeopardy, which inhibits a defendant from being convicted more than once for the same offense.’
“He further stated that such use is not permitted by the statute. We find nothing in the statute which would justify this statement. However, it appears that his conclusion has been consistently followed for the forty-two years intervening. In as much as the articles on the subject have been re-enacted by the legislature with a knowledge of the judicial construction given same, we would not at this time, under the general rule of construction, be justified in overruling the Kinney case and those which have followed it. The fact that we still adhere to the conclusion does not mean that we endorse the reasoning given. If the principle of former jeopardy should be violated by a second use of a former conviction to enhance a penalty, then the use of the former conviction in the first instance would be violative of the same principle and the enactment would be contrary to the Constitution of the United States and of our own State.
“The lack of logic in the rule which we now recognize is exposed by the results which necessarily follow. The appellant may pay the penalty based on the ground that he has been previously convicted twice for a similar offense. Tomorrow he commits the same character of offense and is again brought before the court. All prior convictions having been once used, he can no longer be adjudged an habitual criminal, but stands before the court as a first offender. The payment of the penalty cannot change the state of the man. If he is an habitual criminal today and continues his habits by a similar violation tomorrow, after having suffered the consequences of the enhanced penalty, he is all the more an habitual criminal. It is only the construction of the statute that relieves him from being thus adjudged. If he should continue day after day to violate the law, every third day he would be an habitual criminal and, if so convicted, on the fourth he would not be such. Or, if the state should use every ‘first’ conviction to double the penalty in the next one, he could commit the same character of offense day after day, pay the double fine when assessed, and never become an habitual criminal.
“If the principle of double jeopardy applies we must sustain appellant and grant his motion. A complete answer to the argument in his motion is found in the conclusion that the principle of jeopardy does not apply. He is not convicted of a former conviction. Such former convictions are proven for the purpose of determining the state of the accused as he stands before the bar of justice and such former convictions fix upon him, as a penalty in the case at bar, a punishment as prescribed by the statute.
“A further test convincing the writer of the correctness of this conclusion is found in the fact that former offenses need not be within the jurisdiction of the court trying him. In fact, the conviction may have been in another state, government, or country, provided such offense would have been subject to the same classification under the laws of the State of Texas. 24 C.J.S., Criminal Law, § 1960-d, p. 1151. Again, the former conviction might have been far beyond the period of limitation so that he could not be again tried for it. It has also been held, with practical unanimity, that a conviction for which a full pardon has been subsequently granted may, nevertheless, be utilized to enhance a penalty.
“Under the state of the decisions of this court, as fully treated in the original opinion to which we adhere, the judgment of affirmance must be sustained and the motion for rehearing is overruled.”

Although Kinney had been dealt a restrictive blow by the decision in Sigler, it was yet to receive further limitation in the case of Ex parte Calloway, 151 Tex.Cr.R. 90, 205 S.W.2d 583 (1947). There Judge Beauchamp fully discussed the holdings in Kinney, Miller, Cothren, Gooden, and Brown. Nevertheless, the Court concluded that the use of a prior conviction to enhance punishment as a second offender under Art. 62, Vernon’s Ann.P.C. (1925), did not preclude the State from again using that same conviction to fix a defendant’s status as an habitual criminal under Art. 63, Vernon’s Ann.P.C. (1925).

The case of Evans v. State, 160 Tex.Cr.R. 517, 272 S.W.2d 732 (1954), did not follow Calloway. However, in Mayo v. State, 166 Tex.Cr.R. 470, 314 S.W.2d 834 (1957), Evans was expressly overruled. Mayo established Calloway as the correct rule. The Court quoted from Calloway as follows:

“So then, to prosecute one as an habitual criminal the State would of necessity be called upon to forego or waive its right to proceed against an accused as a second offender when that right presented itself and before the accused had committed and been convicted of a third or subsequent offense. In other words, so long as the State exercised the right to prosecute as a second offender it could never prosecute one as an habitual offender. Thus is demonstrated the fallacy in relator’s contention.”

The opinion in Mayo went on to criticize Kinney by quoting from Judge Beau-champ’s remarks in Brown. See also Head v. State, 419 S.W.2d 375 (Tex.Cr.App.1967), and Cleveland v. State, 493 S.W.2d 145 (Tex.Cr.App.1973), in which Calloway and Mayo were followed.

In Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93 (1953), the defendant was convicted of the offense of driving while intoxicated as a subsequent offender. It was there contended that the defendant’s 1947 misdemeanor conviction for driving while intoxicated could not be used in his 1952 trial, because it had been successfully used in a 1949 felony conviction for driving while intoxicated. The defendant contended that the rule in Kinney would prevent the re-use of the 1947 misdemeanor, since it had successfully been used in the 1949 felony conviction. In rejecting that contention this Court stated:

“This Court has not held the rule in the Kinney case applies to Article 802b, Vernon’s Ann.P.C., and we do not now feel inclined to so hold. To the contrary, we have held in Broughton v. State, 148 Tex.Cr.R. 445, 188 S.W.2d 393, and Clifton v. State, 156 Tex.Cr.R. 655, 246 S.W.2d 201, that said article is not an enhancement of punishment statute but creates a new and independent crime of the grade of felony, an essential element of which is that the person charged has previously been convicted of a misdemeanor offense of driving while intoxicated. The additional allegation of the prior misdemean- or conviction thus vests the District Court with jurisdiction. It is only in cases arising under Articles 61-64, Vernon’s Ann. P.C., that the rule in the Kinney case, and those which follow it, apply. We hold that the prior use of the misdemeanor conviction does not prevent its subsequent re-use for the same purpose and that such subsequent re-use does not violate the constitutional prohibition against placing an accused twice in jeopardy.
This Court, as now constituted, is not inclined to extend the rule in the Kinney case, supra.”

Another exception to the Kinney rule is found in Johnson v. State, 158 Tex.Cr.R. 154, 253 S.W.2d 1006 (1953). There the defendant was indicted for the primary offense of burglary, which was alleged to have been committed on February 3, 1950. Three prior felony convictions were alleged for enhancement purposes. Johnson was convicted and appealed; but, the case was reversed because of the failure of the State to corroborate the testimony of an accomplice. Subsequently, the grand jury returned another habitual criminal indictment against the defendant. The primary offense there was a burglary alleged to have occurred on June 14, 1951. Two of the prior offenses alleged were the same as those alleged in the previous case. Johnson was again convicted and appealed. He contended that the prior convictions could not be used to enhance his punishment, because they had previously been used in the prior case. This Court rejected that contention and created yet another exception to the Kinney rule, stating:

“In the instant case, the State had not successfully used the prior convictions at the time of the trial on the instant indictment, because this Court had, prior to such time, reversed the previous habitual criminal conviction; and the original indictment remained pending on the docket of the trial court. Such a situation did not constitute a successful use of the pri- or conviction so as to prevent their being used in the instant case.”

In Mooring v. State, 158 Tex.Cr.R. 434, 256 S.W.2d 97 (1953), the defendant was convicted for sale of whiskey in a dry area, with prior offenses alleged to enhance the punishment. On appeal he contended that the prior convictions could not be used, because the same prior offenses were alleged and proven to enhance punishment in another case against the defendant, even though the prior case had resulted in an acquittal. The Court stated:

“We hold that, where the prior convictions were alleged and proven to enhance the punishment in a case which results in an acquittal, this does not constitute a successful use of the prior conviction so as to prevent their being used in a subsequent case for the same purpose.
“If the Kinney case be construed as holding in conflict with the decision here reached, it is expressly overruled to that extent.
“We hold the doctrine of jeopardy does not apply to the case at bar.”

See also Florez v. State, 479 S.W.2d 683 (Tex.Cr.App.1972).

Thus, down through Mooring, this Court had overwhelmingly rejected the basis of the Kinney rule that the doctrine of jeopardy barred the re-use of a prior conviction for enhancement purposes. Mooring even went further; it suggested that Kinney be overruled to the extent of conflict.

Although Kinney has been criticized, discredited, found illogical, led to confusion, and given rise to conflicting cases, it has nevertheless been followed. See e. g., Carvajal v. State, supra; Shaw v. State, 530 S.W.2d 838 (Tex.Cr.App.1975); Way the v. State, 533 S.W.2d 802 (Tex.Cr.App.1976); Ex parte White, 538 S.W.2d 417 (Tex.Cr.App.1976); Rollins v. State, 542 S.W.2d 163 (Tex.Cr.App.1976); Ex parte Friday, 545 S.W.2d 182 (Tex.Cr.App.1977). Moreover, until recent years it has been the continuing policy of this Court to create exceptions to the Kinney rule. See, for example, Ex parte Montgomery, 571 S.W.2d 182 (Tex.Cr. App.1978), and cases there cited.

That the Kinney rule makes no sense is further demonstrated by the following examples. Let us suppose that a defendant is finally convicted of felony A in 1970. In 1974 he commits felonies B and C. Felony A can be used to enhance felony B, but the Kinney rule would prohibit using felony A to also enhance felony C. However, let us suppose that in 1970 a defendant is finally convicted of felonies A and B. In 1974 he commits felonies C and D. Felony A can be used to enhance felony C, and felony B can be used to enhance felony D. Likewise, felony A can be used to enhance felony D, and felony B can be used to enhance felony C. However, felony A cannot be used to enhance felonies C and D, nor can felony B be used to enhance felonies C and D.

In the habitual criminal situation, if a defendant is finally convicted of felony A in 1970 and felony B in 1974 and the defendant commits felonies C and D in 1978, felonies A and B can be used to make the defendant an habitual criminal under felony C; but they cannot also be used to make him an habitual criminal under felony D. However, if the defendant is finally convicted of felonies A and B in 1970 and finally convicted of felonies C and D in 1974 and then commits felonies E and F in 1978, felonies A and C can be used to make the defendant an habitual criminal for felony E and felonies B and D can be used to make the defendant an habitual criminal under felony F. Likewise, felonies B and C can be used to make the defendant an habitual criminal under felony E and felonies A and D can be used to make the defendant an habitual criminal under felony F. However, felony A cannot do double duty with felonies C and D under both felonies E and F. Likewise, felony B cannot do double duty with felonies C and D under both felonies E and F. Felony C cannot do double duty with felonies A and B under both felonies E and F. Felony D cannot do double duty with felonies A and B under both felonies E and F.

Once a defendant’s status is fixed as a second offender, that status should stand unless the defendant later becomes an habitual offender. Likewise, once a defendant’s status is fixed as an habitual offender, that status should remain. That the Kinney rule makes no sense is amply demonstrated by the cases cited and the examples given above. Therefore, we have decided that the doctrine of stare decisis no longer requires us to follow Kinney, because it neither makes sense nor follows logical reasoning. Middleton v. State, supra.

Insofar as the Kinney rule has been applied to Art. 62, Vernon’s Ann.P.C. (1925), because there “is no statutory authority that prior offenses can be used more than” one time, a reading of the statute itself belies that interpretation. That article provides:

“If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.” (Emphasis supplied)

Thus, it may be seen that under Art. 62, supra, one prior felony conviction may not only be used to enhance a second conviction, but any other subsequent conviction. Moreover, the penalty for such second or other subsequent conviction is mandatorily set by the statute at “the highest which is affixed to the commission of such offenses in ordinary cases.”

Art. 68, Vernon’s Ann.P.C. (1925), has no similar express statutory authorization for multiple use of prior convictions as did Art. 62, supra. It merely provided:

“Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.”

In construing Art. 63, supra, this Court held that the first prior conviction must become final prior to the commission of the second offense and the conviction for the second offense must become final prior to the commission of the third offense. It is interesting to note that, in enacting the new penal code, the Legislature specifically adopted this interpretation when it enacted the new habitual criminal statute. That statute, V.T.C.A., Penal Code, Sec. 12.42(d), provides:

“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.”

Thus, the Legislature has specifically adopted this Court’s previous construction of Art. 63, supra, in enacting Sec. 12.42(d), supra. This should be contrasted with the rule of construction that, by their silence, the Legislature has adopted the judicial constructions of the recidivist statute.

A reading of V.T.C.A., Penal Code, Sec. 12.42, shows that the Legislature did not expressly prohibit the multiple use of prior convictions for purpose of enhancement of punishment. To the contrary, the wording of this statute strongly implies that multiple use is encouraged. Let us look, for example, at subsection (a) of Sec. 12.42, supra. That statute provides:

“If it be shown on the trial of a third-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a second-degree felony.” [Emphasis supplied].

Thus, in order to invoke the mandatory second-degree felony punishment under the statute, it only need be shown that, on the trial of a third-degree felony, the defendant has been once before convicted of any felony. The statute is mandatory, and the fact that the first felony conviction has previously been used to enhance punishment is no bar to its subsequent use.

On September 27, 1978, a panel of this Court, with one judge dissenting, held that once a prior conviction has been successfully used to enhance punishment under Sec. 12.-42(d) it could not again be used to enhance punishment under Sec. 12.42(a). Ex parte Montgomery, supra. It is interesting to note that one week before, on September 20, 1978, another panel of this Court set aside Montgomery’s life sentence under Sec. 12.42(d) and remanded the cause to the trial court for assessment of punishment under Sec. 12.42(a). Montgomery v. State, 571 S.W.2d 18 (Tex.Cr.App.1978). These two cases amply demonstrate that Kinney has sired conflicting cases; for, at the time Ex parte Montgomery, supra, was decided, Montgomery’s punishment had not been successfully enhanced under Sec. 12.42(d), as Montgomery’s life sentence had been set aside one week before in Montgomery v. State, supra.

On October 11,1978, still another panel of this Court decided Ex parte Hill, 571 S.W.2d 900 (Tex.Cr.App.1978). There the petitioner had been given a life sentence under Art. 68, supra. Petitioner contended that the three felonies alleged against him in the enhancement paragraphs of the indictment were unavailable for such use because two of the three were used to enhance the third in a 1961 Oklahoma conviction. The record reflected that in 1951 petitioner had been convicted in Cause No. 1762 of the offense of assault with a dangerous weapon in the District Court of Jackson County, Oklahoma and received a four-year sentence. In 1957 petitioner had been convicted of the offense of forgery in Cause No. 2056 in the District Court of Lea County, New Mexico and was assessed a five-year sentence. In 1961 he was charged by information with having committed the offense of sodomy in Cause No. 2093 in the District Court of Jackson County, Oklahoma. Such charge was alleged in the information as being “a third and subsequent offense. . . . ” The 1951 conviction in Cause No. 1762 and the 1957 conviction in Cause No. 2056 were then alleged and the information concluded with the allegations of the primary sodomy offense and the statement that such had occurred “. . . after having been twice before convicted of a felony.” On conviction the jury assessed punishment at 10 years.

In 1971 petitioner was indicted for the offense of burglary in Cause No. 6906 in Wilbarger County. The indictment further alleged, for purposes of enhancement, the 1951 Oklahoma conviction in Cause No. 1762, the 1957 New Mexico conviction in Cause No. 2056, and the 1961 Oklahoma conviction in Cause No. 2093. The jury returned a guilty verdict and petitioner was sentenced to life imprisonment in the Department of Corrections.

In this Court petitioner contended that since the 1951 and 1957 convictions had been previously used to enhance the 1961 Oklahoma conviction, they were unavailable to the State of Texas for enhancement use in the 1971 Wilbarger County conviction. The contention was overruled, with the opinion stating:

“This Court has consistently held that the fact that a defendant has suffered increased punishment on conviction of a second or subsequent offense [footnote omitted] by reason of his being a prior offender will not prevent imposition of a life sentence when a third conviction fixes his status as an habitual offender. West v. State, 511 S.W.2d 502 (Tex.Cr.App.1974); Head v. State, 419 S.W.2d 375 (Tex.Cr.App.1967); Tuley v. State, 151 Tex.Cr.R. 442, 208 S.W.2d 366 (1948); Mayo v. State, 166 Tex.Cr.R. 470, 314 S.W.2d 834 (1947), cert. denied, 357 U.S. 935, 78 S.Ct. 1385, 2 L.Ed.2d 1550; Ex parte Calloway, 151 Tex.Cr.R. 90, 205 S.W.2d 583 (1947).
“It is clear, if only by virtue of the fact that the 1961 ‘enhanced’ conviction was obtained in a sister state, that the priors of which petitioner now complains had never before been utilized to enhance a punishment under Article 63 of the Texas Penal Code. The prohibition against use of a prior conviction more than one time for the purpose of enhancing punishment applies only when such double use is attempted by the State under the same statutory provision. Id.; [See also Ex parte White, 538 S.W.2d 417, 418 n.2 (Tex.Cr. App.1976.)]”

The principle of former jeopardy does not prohibit the multiple use of prior convictions for. the purposes of enhancing punishment under our recidivist statutes. Kinney and its progeny should be expressly overruled.


source: Caselaw Access Project

author: TOM G. DAVIS, Judge. VOLLERS, Judge,

license: Public Domain

text:
    Dwayne Carry LLOYD aka Dwayne Kerry Lloyd, Appellant, v. The STATE of Texas, Appellee.
    No. 59733.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 13, 1978.
    Ronald H. Tonkin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde A. Wilson, Jr. and Candelario Elizondo, Asst. Dist. Attys., Houston, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from an order revoking probation.

On June 2, 1976, appellant entered a guilty plea to the offense of possession of heroin. Punishment was assessed at ten years, probated.

On June 24,1977, the State filed a motion to revoke the appellant’s probation, and among the violations alleged was the following:

. . that said defendant did then and there violate the terms of his probation by unlawfully committing the offense of Passing a Forged Instrument on or about April 2, 1977 . . .

After a hearing was held on the motion on July 22,1977, the court entered an order revoking appellant’s probation. The basis for the judge’s order was a violation of a condition of his probation as set out above.

Appellant maintains that the trial judge erred in granting the motion to revoke in that there was no proof that the appellant knew the check was forged when he cashed it.

The record reflects that Pang Liu, a grocery store employee, testified that he cashed a government check for the appellant. The check was a Social Security check made out to Junius Lavan. Liu stated that he knew the appellant, and that the appellant represented to him that the check was an income tax refund. Liu called or was called by a female representing that she was the appellant’s mother and was told by this woman that the check was valid. Liu further testified that appellant signed the back of the check before giving it to him. The check, identified as the instrument passed on the occasion in question, was introduced into evidence and bears only one endorsement, that being the name of “Junius Lavan.”

Junius Lavan testified that he had never received the check and that, since he could neither read nor write, the endorsement in his name was not his signature.

We find that this evidence was sufficient to support a finding that the appellant knew the endorsement was forged. See, Stuebgen v. State, Tex.Cr.App., 547 S.W.2d 29; Phillips v. State, Tex.Cr.App., 488 S.W.2d 97; Hilton v. State, Tex.Cr.App., 443 S.W.2d 843.

Appellant next contends that the trial court erred in revoking his probation on the basis of the Social Security check in question. Appellant maintains that it was necessary to first prove that the check was a valid obligation of the United States Government before it could be properly admitted into evidence. He relies on Hill v. United States, 275 F. 187 (7th Cir. 1921).

The offense of forgery under V.T.C.A. Penal Code, Sec. 32.21, does “not require that the instrument in writing be such as to create, increase, diminish, discharge or defeat pecuniary obligation.” Martinez v. State, Tex.Cr.App., 551 S.W.2d 735, 737. Thus, there was no requirement to prove that the check was a valid obligation.

Appellant finally contends that the trial court erred in denying appellant’s Motion for Reconsideration of the Revocation in light of his subsequent acquittal by a jury on the same charge.

The standard of proof in a revocation is a preponderance of the evidence; in a trial on the substantive charge proof beyond a reasonable doubt is required. Russell v. State, Tex.Cr.App., 551 S.W.2d 710; Keel v. State, Tex.Cr.App., 544 S.W.2d 151. An acquittal under the higher burden of proof is not inconsistent with a granting of a revocation motion under the lower burden of proof. Thus, a subsequent acquittal does not affect the prior revocation. Cf. Russell v. State, supra.

The only question presented in an appeal from an order revoking probation is whether the trial court abused its discretion in revoking the appellant’s probation. Rice v. State, Tex.Cr.App., 548 S.W.2d 725; McGuire v. State, Tex.Cr.App., 537 S.W.2d 26. We hold that no abuse of discretion has been shown.

The judgment is affirmed.

VOLLERS, Judge,

concurring.

I concur in the result reached, but I wish to point out that the implication in the majority opinion that the evidence must be sufficient to show that the appellant knew that the check was forged is improper. Section 32.21(b), V.T.C.A. Penal Code provides that:

“A person commits an offense if he forges a writing with intent to defraud or harm another."

Under Section 32.21(a)(1), V.T.C.A. Penal Code, “forge” means:

“(b) To issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of paragraph A of this subdivision . . ”

The clear wording of these provisions requires the conclusion that the passing of an instrument that is altered or executed so as to purport to be the act of another who did not authorize it is a forgery, whether or not the person passing it knows it to be forged. It becomes an offense when this person passes the forged instrument “with intent to defraud or harm another.” The intent to defraud can be established by showing that the person passing the forged instrument knows that it is forged, but this is not the exclusive method. If the State can prove in some other manner that there was an intent to defraud or harm, then this provision of the statute is satisfied. Proof of knowledge that the instrument was forged by the person passing it is not the only way that the intent to defraud can be shown.

I concur in the result reached by the majority opinion.


author: TOM G. DAVIS, Judge.

text:
    Ex parte Linda Kaye REED.
    No. 59773.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 13, 1978.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

TOM G. DAVIS, Judge.

This is an application for a post-conviction writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

On May 16,1975, petitioner was convicted upon her plea of guilty for the offense of credit card abuse and placed on probation for a period of three years. No appeal was taken. On March 29,1978, petitioner’s probation was revoked. It appears from the record before us that no appeal was taken from the order revoking probation.

On September 5, 1978, petitioner filed an application for writ of habeas corpus pursuant to Art. 11.07, V.A.C.C.P., in the trial court alleging that the judgment of conviction was based upon an information which was fundamentally defective because it failed to contain the necessary elements to establish an offense under V.T.C.A. Penal Code, Sec. 32.31(b)(1)(A). The district court entered an order recommending that the relief sought be granted. We agree.

The information in the instant case alleges in pertinent part that on or about February 20, 1975, the petitioner did unlawfully:

“then and there present a Titches Credit Card # 352-2666-1 to Virginia Dunn, with intent to obtain property and service without the effective consent of the cardholder, namely, Charles A. Davidson.

In Ex parte Walters, 566 S.W.2d 622 (Tex.Cr.App.1978), this Court held that an indictment for credit card abuse under V.T. C.A. Penal Code, Sec. 32.31(b)(1)(A), was fundamentally defective when it failed to allege that the petitioner used the card with knowledge that it had not been issued to him and with knowledge that his use of it was without the effective consent of the cardholder. In Ex parte Mathis, 571 S.W.2d 186 (Tex.Cr.App.1978), this Court held an indictment for credit card abuse under V.T.C.A. Penal Code, Sec. 32.-31(b)(1)(A), fundamentally defective where it failed to allege that the petitioner had the intent to obtain the property fraudulently and also failed to allege that he acted with knowledge that the credit card had not been issued to him and that it was used without the effective consent of the cardholder.

It is apparent that the information in the instant case, like the indictment in Ex parte Mathis, supra, fails to allege that petitioner had the intent to obtain the property fraudulently and it also fails to allege that she acted with knowledge that the credit card had not been issued to her and was used without the effective consent of the cardholder. Since it is apparent that the indictment in the instant case omits essential elements of the offense, it is fundamentally defective. Ex parte Walters, supra; Ex parte Mathis, supra.

The relief requested in the habeas corpus is granted and the prosecution under this indictment is dismissed.

It is so ordered.

      . This section provides as follows:
      “A person commits an offense if: with intent to obtain property or service fraudulently, he presents or uses a credit card with knowledge that: the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder . . ..”


text:
    Ex parte Albert William LUCAS.
    No. 59887.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 13, 1978.

      Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

TOM G. DAVIS, Judge.

This is an application for writ of habeas corpus pursuant to Art. 11.07, V.A.C.C.P.

In 1977, petitioner pleaded guilty to aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. Punishment was set at 45 years.

The judge of the trial court made findings of fact and conclusions of law supporting his recommendation that relief should be granted. This Court, however, is not bound by such findings or conclusions of law. Ex parte Hagans, 558 S.W.2d 457, and cases cited therein.

Petitioner contends that the indictment is fundamentally defective in that it fails to describe the property taken and allege the ownership of this property. The trial judge cited our decision in Ex parte Canady, Tex.Cr.App., 563 S.W.2d 266, as authority for his conclusion that the indictment was fundamentally defective for failing to describe the property.

Reliance on Ex parte Canady, supra, is misplaced, however, as an important distinction exists between that case and the present case. The defendant in Canady was prosecuted under Art. 1408, V.A.P.C. (1925), while the petitioner here was convicted for an offense under V.T.C.A. Penal Code, Sec. 29.03. As set out below, the decisions relating to the sufficiency of an indictment under Art. 1408, supra, so far as they speak to the necessity for a description of the property or an allegation of ownership, are not applicable to indictments under Sec. 29.03, supra.

The basis of the holding in Canady is this Court’s decision in Mankin v. State, 451 S.W.2d 236. In Mankin, we held that the failure to describe the property allegedly taken rendered the indictment fundamentally defective. The Court reasoned that since under the common law robbery was but an aggravated form of theft, when charging robbery it was necessary to describe the property as if charging theft. This decision is still followed in cases involving Art. 1408, supra. Ex parte Cannady, Tex.Cr.App., 571 S.W.2d 16; Ex parte Forgason, Tex.Cr.App., 567 S.W.2d 517; Ex parte Canady, supra.

In Lucero v. State, 502 S.W.2d 128, this Court held that the failure to allege the ownership of property in an indictment under Art. 1408, supra, rendered that indictment fundamentally defective. The decisions cited in support of this holding reveal that the reasoning underlying Lucero is the same as that in Mankin. In Higgins v. State, Tex.Cr.App., 19 S.W. 503 (cited in Lucero v. State, supra), as in Mankin, the Court stated that robbery was an aggravated form of larceny or theft. 19 S.W. at 504. Lucero still retains its vitality in regard to cases prosecuted under Art. 1408, supra. Ex parte Rivers, Tex.Cr.App., 559 S.W.2d 659; Ex parte Haywood, Tex.Cr.App., 550 S.W.2d 292; Ex parte Banks, Tex.Cr.App., 542 S.W.2d 183; Ex parte Jones, Tex.Cr.App., 542 S.W.2d 179.

The common law analysis of the nature of a robbery offense was correct under Art. 1408, supra, as the offense required a completed theft as an element of the crime. Watson v. State, Tex.Cr.App., 532 S.W.2d 619; Dickey v. State, 169 Tex.Cr.R. 576, 336 S.W.2d 165. Under Sec. 29.03, however, no completed theft is required. Earl v. State, Tex.Cr.App., 514 S.W.2d 273; Reese v. State, Tex.Cr.App., 531 S.W.2d 638. Under the new Penal Code, the offense is no longer an aggravated form of theft.

This Court has considered the effect of this change on the necessity to allege the ownership of the property when charging a robbery under Sec. 29.03, supra. In Reese v. State, supra, the Court held that this allegation was no longer necessary under Sec. 29.03, supra. The Court found that since a completed theft was no longer a prerequisite to robbery, the allegations of theft required under Art. 1408, supra, were no longer necessary. 531 S.W.2d 640. This same reasoning is applicable to the present case.

A description of the property involved in the robbery was required under Art. 1408 because the offense was characterized as a theft. The change in the focus of the statute, coupled with this Court’s decision in Reese, compels the conclusion that the present robbery offense is assaultive in nature. Cf. Servance v. State, Tex.Cr.App., 537 S.W.2d 753; Watson v. State, 532 S.W.2d 619, 621; Davis v. State, Tex.Cr.App., 532 S.W.2d 626; Earl v. State, supra. Thus, no description of the property is necessary in an indictment under Sec. 29.03, supra.

We hold that an indictment under Sec. 29.03, supra, does not require a description of the property or an allegation as to ownership.

The relief sought is denied.


author: DOUGLAS, Judge.

text:
    Ex parte Samuel Dwayne COLEMAN.
    No. 59888.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 13, 1978.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Douglas M. O’Brien, Asst. Dist. Attys., Houston, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

DOUGLAS, Judge.

This is a post-conviction habeas corpus proceeding under Article 11.07, V.A.C.C.P. Coleman, the applicant, contends that he should be granted relief because of an error in the charge to the jury. On September 20, 1978, relief was denied by this Court. Because the same or similar contentions have been raised many times, leave to file the application for a writ of habeas corpus was granted.

The indictment charged that Coleman “while in the course of committing theft did . . intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death by using and exhibiting a deadly weapon, namely, a pistol. . . . ”

The court instructed the jury to find Coleman guilty if he “intentionally, knowingly or recklessly caused bodily injury or intentionally or knowingly threatened or placed the complainant in fear of imminent bodily injury or death; . . . and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, that the defendant caused serious bodily injury to Harold Hobart [complainant] or the defendant used or exhibited a deadly weapon, to-wit, a pistol, then you will find defendant guilty as charged in the indictment.”

Will an error in the instruction to find Coleman guilty, if he caused bodily injury to the complainant or threatened serious bodily injury violate due process because robbery by committing bodily injury was not alleged in the indictment? This was held to be reversible error on appeal in Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977).

There was no objection to this instruction in the present case. The first time the matter has been raised is in the application for writ of habeas corpus.

Was a constitutional right violated? In In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970), the Supreme Court of the United States held “ . . . the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” The Supreme Court applied Winship to a collateral attack upon a state conviction concerning an instruction to the jury. The court held the test to be “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). The court reaffirmed that rule in Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). Error in instructions to the jury rarely rise to a constitutional level. Victory v. Bombard, 570 F.2d 66, 69 (2nd Cir. 1978). We adopt the rule set out by the Supreme Court of the United States and which has been in substance previously followed by this Court.

In Ex parte Gomez, 389 S.W.2d 308, 310 (Tex.Cr.App.1965) cert. denied 386 U.S. 937, 87 S.Ct. 958, 17 L.Ed.2d 810 (1967), this Court wrote:

“The writ of habeas corpus cannot be utilized, after conviction, to point out alleged errors in a court’s charge, as these are matters which should be urged on appeal . . .”

There are several instances where this Court has held something fundamental error on appeal but not subjected to a collateral attack by habeas corpus. We have held that failure to allow appointed counsel 10 days in which to prepare for trial is reversible error in violation of Article 26.04, V.A.C.C.P., but such an error may not be the basis for a collateral attack by way of habeas corpus. Ex parte Shields, 550 S.W.2d 670 (Tex.Cr.App.1977); Ex parte Meadows, 418 S.W.2d 666 (Tex.Cr.App.1967).

A collateral attack is not allowed because a sentence was pronounced untimely, Ex parte Shields, supra, when it has been considered under Art. 40.09, Sec. 13, V.A.C.C.P. Conaway v. State, 549 S.W.2d 181 (Tex.Cr.App.1977); Means v. State, 552 S.W.2d 166 (Tex.Cr.App.1977). The sufficiency of the evidence will be considered on appeal, but not in a habeas corpus proceeding. Ex parte Sepulvada, 172 Tex.Cr.R. 455, 358 S.W.2d 630 (1962); Ex parte Wingfield, 162 Tex.Cr.R. 112, 282 S.W.2d 219 (1955), cert. denied 350 U.S. 1002, 76 S.Ct. 553, 100 L.Ed. 866 (1956).

Where there has been no evidence upon which to base a conviction, a violation of due process has occurred and the conviction may be attacked collaterally in a habeas corpus proceeding.

We hold in the present case that no violation of due process has been shown.

The relief sought is denied.


author: ONION, Presiding Judge.

text:
    Ex parte Thomas Cullen DAVIS.
    No. 59929.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 13, 1978.

      Richard Haynes and Randy Schaffer, Houston, Phil Burleson and Michael P. Gibson, Dallas, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, Candyce Howell, Frederick M. Schattman and Paul E. Gartner, Asst. Dist. Attys., Fort Worth, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order refusing to set bail with appellant contending that his right of appeal arises under the provisions of Article I, § 11a of the Texas Constitution.

Appellant is shown to be held without bail as a person accused of a felony less than capital allegedly committed while on bail for a pending felony indictment or indictments. The record reflects that appellant had been indicted for the felony offenses of capital murder and murder, returned on August 24, 1976, indicted for attempt to murder and attempted murder, and later in another indictment for an attempt to murder, which indictments were returned on February 15, 1977. It appears that appellant was released on bail in these cases. Then on September 7, 1978 a four count indictment was returned against him charging him with criminal solicitation of murder, etc., alleging offenses occurring on or about the 18th day and 20th of August, 1978. He was also indicted at the same time for the possession of a prohibited weapon. On August 22, 1978 the appellant was denied bail on the charge of criminal solicitation of murder after a hearing under the provisions of Article I, § 11a of the Texas Constitution, two days after his arrest and incarceration on such charge on August 20, 1978. No appeal was taken from such order as is permitted by the constitutional provision.

Subsequently a change of venue was ordered, after a hearing, on the criminal solicitation of murder indictment from the 213th District Court of Tarrant County to the 184th District Court of Harris County.

On October 24,1978 a hearing was held in the latter court on appellant’s motion to set bail. The record reflects that appellant filed a first motion for “continuance” on October 13, 1978 asking the case be reset for trial on the merits until November 6 or November 13, 1978 in order for further preparation of the case and the hiring of expert witnesses, etc. The written order granting the motion reset the ease on October 23, 1978, ten days later. A second motion for “continuance” was filed on October 20, 1978 asking for a two weeks’ delay for the testing of certain tape recordings by expert witnesses and asked for a resetting on October 30 or November 6, 1978. No written order on this motion appears in the record, but a docket sheet entry shows the case was reset until October 30, 1978. In light of the “continuance” sought and secured, the court refused to set bail. It is an appeal from this order refusing to set bail that is now before this court.

Article 17.01, V.A.C.C.P. provides:
“ ‘Bail’ is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or personal bond.”
“The prime object or purpose of bail is to secure the presence of an accused upon the trial of the accusation against him. Bail is not a revenue measure intended to be a substitute for a fine; rather, it is intended to secure the trial of the defendant instead of to mulct his securities in a penalty.” 7 Tex.Jur.2d Rev., Part 2, Bail and Recognizance, § 2, p. 596; Grantham v. State, 408 S.W.2d 235 (Tex.Cr.App.1966).

The general rule favors the allowance of bail. Ex parte Newman, 38 Tex.Cr.R. 164, 41 S.W. 628 (1897); Ex parte Stephenson, 71 Tex.Cr.R. 380, 160 S.W. 77 (1913); Ex parte Hill, 83 Tex.Cr.R. 146, 201 S.W. 996 (1918). “Thus, presumptions are not to be indulged against the applicant, and the power to deny or require bail will not be used as an instrument of oppression.” 7 Tex.Jur.2d Rev., Part 2, Bail and Recognizance, § 9, p. 605; Ex parte Stephenson, supra.

Article I, § 11 of the Texas Constitution provides:

“Sec. 11. All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.” See also Article 1.07, V.A.C.C.P.

In addition to the built-in exception to the right to bail (in capital cases where the proof is evident) set forth in § 11 above, other exceptions are contained in Article I, § 11a of the Texas Constitution as follows:

“Sec. 11a. Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, or (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above or of the offense committed while on bail in (2) above, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above or the accusation and indictment used under (2) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the ac-eused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals.” As amended Nov. 8, 1977. (Emphasis supplied.)

The exceptions contained in Article I, § lla, supra, to the constitutional right to bail proclaimed by Article I, § 11, supra, include the seeds of preventive detention urged by. many to be abhorrent to the American system of justice. It is obvious that for these reasons the provisions of said § lla contain strict limitations and other safeguards.

It is clear that in three situations bail may be temporarily denied under the provisions of Article I, § lla, supra. This is true where in accordance with the constitutional provisions bail is denied pending trial after a hearing by a district judge and said order denying bail pending trial is issued within seven (7) calendar days subsequent to the time of the incarceration of the accused. It is thus apparent that if a district judge does not deny bail within the seven (7) days’ time limitation any order to deny bail for the first time will not invoke the constitutional provision.

The original order denying bail in the instant case was issued within the seven (7) days’ period, but no notice of appeal was given from this order. The question thus presents itself whether the order of the 184th District Court on October 24th refusing to fix or set bail (and from which notice of appeal was immediately given) is an applicable order under the provisions of Article I, § lla, supra. The State insists that it was just another pre-trial order and that this court is without jurisdiction to entertain this appeal.

Not every order relating to bail in a criminal case, even after the provisions of Article I, § lla, supra, have once been invoked, is appealable under such constitutional enactment. In the instant case the first order denying bail was entered within the seven (7) days’ time limitation and invoked the constitutional enactment. The order refusing to set bail after the expiration of sixty (60) days following appellant’s incarceration on August 20,1978 was based on the fact he had secured a “continuance.” Since the constitutional provision itself provides a continuance may defeat an accused’s release on bail after the expiration of the sixty (60) days after his incarceration, we conclude the order so based is appealable to this court under the provisions of Article I, § lla, supra. We reject the State’s contention that this court is without jurisdiction to entertain this appeal.

Did the securing of a “continuance” or “continuances” at the behest of the appellant authorize the trial judge to deny bail under said § 11a? The terms “postponement” and “continuance” are frequently used interchangeably, but strictly speaking, a postponement is a delay of a trial until a later day of the same term whereas a continuance is the adjournment of the case until a subsequent term of the court. 12 Tex.Jur.2d, Continuance, § 1, pp. 542-543; Tarver v. State, 124 Tex.Cr.R. 485, 63 S.W.2d 554 (1933).

This is supported by various statutory provisions. Article 29.05, V.A.C.C.P., provides that among the requisites of a subsequent motion for continuance the motion must show:

“2. That the applicant expects to be able to procure the attendance of the witness at the next term of court; and .” (Emphasis supplied.)

Article 29.06, § 6, V.A.C.C.P. (First motion by defendant), reads in part:

“6. That there is no reasonable expectation that attendance of the witness can be secured during the present term of court . . .” (Emphasis supplied.)

Article 29.07, V.A.C.C.P. (Subsequent motion by defendant), provides in part:

“2. That the defendant has reasonable expectation of procuring the same [testimony of a witness or witnesses] at the next term of the court.” (Emphasis supplied.)

Article 29.13, V.A.C.C.P. (Continuance after trial is begun), provides in part:

“A continuance or postponement may be granted on the motion of the State or defendant after the trial has begun . . ” (Emphasis supplied.)

The terms of the 184th Judicial District Court of Harris County commence on the first Monday in August, the first Monday in November, the first Monday in February, and the first Monday in May. Article 119a, § 3.012, V.A.C.S. Thus, the granting of a “continuance” from October 13, 1978 to October 23, 1978, and a second “continuance” from October 20 to October 30,1978 were in effect postponements from one date to a later date within the same term of court. Since the term “continuance” is frequently used, even by members of the bench and bar, as meaning “postponement” or a delay of any kind in the trial of a case without regard to terms of court, in what sense was the word used when inserted into Article I, § 11a, supra? If the word “continuance” was used within its strict legal meaning, the two ten (10) days’ delays within the same term of court secured by appellant’s motions for a “continuance” would not defeat his release upon bail under the provisions of said Article I, § 11a, as found by the trial court. If, however, the word “continuance” was used to mean any delay or postponement, then appellant may well have defeated any present right to bail.

Some years ago the methods of communications and transportation were not what they are today. Many district courts were multi-county courts and district judges were not in some counties for the purpose of holding court except at the term of court for a particular county. If a motion for continuance was granted, it was understandable that the case could not be reached until the next term of court in that county. Communications and transportation are greatly improved today and judges in multicounty district courts do not wait until term time to transact judicial business in certain counties. The importance of term time has been greatly diminished, and many courts now have continuous terms. As earlier noted, the bench and bar use the term “continuance” interchangeably with any delay or postponement, and a legislative continuance, Article 2168a, V.A.C.S., certainly does not conform to the terms of court which vary from court to court, some in the same county. We conclude that the term “continuance” as used in said § 11a means any delay or postponement requested by the defendant rather than the strict legal meaning that may be attributed to a continuance.

We are immediately confronted with the question of whether a defendant, held without bail under the second situational provision of said § 11a, loses his present right to bail when he asks and receives a “continuance” on either the accusation or the pending indictment? Or must he have asked and received a “continuance” on both before his present right to bail can be denied?

It is observed said § 11a provides in part: “. . . provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above or the accusation and indictment used under (2) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused . . (Emphasis supplied.)

It is noted that the provision for a trial within sixty (60) days is to be upon the accusation in situations (1) and (3) above and upon the accusation and indictment in situation (2) above. (1) and (3) involve pri- or felony convictions while (2) does not but involves a pending felony indictment in addition to the accusation.

Thus, appellant argues and we agree that an accused held without bail under the second situational provision of the constitutional enactment must be accorded a trial upon both the accusation and the pending indictment within sixty (60) days after his incarceration upon the accusation or the accused is entitled to bail on the accusation. This is clear from the very language of the constitutional provision itself and is supported by evidence in this record showing such interpretation being offered before the Criminal Matters Subcommittee of the Senate Jurisprudence Committee on March 1 and 8, 1977 and before the whole Senate Jurisprudence Committee on March 17,1977 on consideration of Senate Joint Resolution No. 3 of the 65th Legislature, which became the amended version of Article I, § 11a of the Texas Constitution when adopted by the voters of this state. This may seem a harsh interpretation as far as the prosecution is concerned, but it should be remembered we are here dealing with the denial of bail because one pending felony charge (for which the accused is on bail) is followed by the alleged commission of a felony less than capital in both of which charges he retains the presumption of innocence. Article 38.03, V.A. C.C.P.; V.T.C.A., Penal Code, § 2.01. As mentioned earlier, said Article I, § 11a, contains modern exceptions to the constitutional right to bail, a valuable right of all Texas citizens, and it is by no accident that severe limitations and safeguards were written into the constitutional enactment.

We are now faced with the question of whether a “continuance” obtained upon either the “accusation” or the pending indictment defeats the present right to bail. While we agree that a defendant must be accorded a trial on both the accusation and the pending felony indictment within sixty (60) days, we conclude that when a defendant requests and receives “a continuance” upon either the accusation or pending indictment he defeats his right to present bail. For how long is his right to bail defeated by such action on his part? Ex parte Smith, 555 S.W.2d 756 (Tex.Cr.App. 1977), is instructive in this matter, and in accordance with such decision we hold that a defendant who has been properly denied bail under Article I, § 11a of the State Constitution, and who requests and receives a “continuance” is not entitled to bail for sixty (60) days from the last day in the time period provided for by the “continuance” granted.

Thus in the instant case, the appellant is not entitled to bail until sixty (60) days from October 30, 1978, the last day of the second continuance requested and obtained (December 30, 1978). Whether the appellant will be actually entitled to bail on that date may well depend on other circumstances. The record before this court reflects that the trial on the accusation of solicitation of murder is now in progress. If the appellant is acquitted by December 30, 1978, then the question of bail will have become moot. If, on the other hand, the appellant is convicted, his right to bail may be governed by the provisions of Article 44.04, V.A.C.C.P., as amended 1977.

The State argues that in addition to the constitutional enactment appellant also is not entitled to bail since it has been shown that the trial upon the solicitation of murder charge has commenced in the 184th District Court of Harris County. The State contends that before trial an accused has a constitutional right to bail with certain exceptions, see Article I, §§ 11 and 11a, supra, and that after conviction his right to bail, if any, is fixed by Article 44.04, V.A.C. C.P., but that during trial he has neither constitutional nor statutory bail rights. The State, in its brief, carefully traces the history of the statutes relating to bail during trial, noting in the early Code of Criminal Procedure in this state a defendant in a felony case was required to be taken into custody when the trial commenced and bail, if the accused had been released on bail, was then considered discharged. As the State observes, this procedure was changed in 1907 to permit an accused in a felony case who had previously been released on bail to remain on such bail until a verdict of guilty was returned. Article 44.04, V.A.C. C.P., as enacted as part of the 1965 Code of Criminal Procedure, contained the following provision:

“(b) If the defendant is on bail when the trial commences, he shall have the same right to remain on bail during the trial of the case and until the return into court of the verdict as he had under the law before the trial commences.”

The State, however, calls attention to the fact that said Article 44.04 has been amended and rewritten (Acts 1977, 65th Leg., p. 636, ch. 234, § 1, eff. Aug. 29, 1977), and that the quoted provision above is no longer to be found in the statute or elsewhere in the Code of Criminal Procedure. Hence, the State reasons that there is now no statutory authority for bail during trial. It is true that the above quoted provision has been deleted, whether by design or oversight, we cannot tell. It may well be that the drafters of the 1977 amendment thought the eliminated provision was out of place in a statute dealing with bond pending appeal.

Whatever interpretation may be eventually placed on the right to bail pending trial in view of the amendment to Article 44.04, supra, that question is not now before this court. The court denied bail in the instant case under the provisions of Article I, § 11a, supra, because the appellant had requested and obtained “continuances.” Trial had not been commenced. We today affirm the trial court’s action on that basis. We do not reach the question proffered by the State.

In summary, we hold that this court has jurisdiction of an appeal under Article I, § 11a of the State Constitution where the right to bail is denied thereunder because the accused has sought a continuance. We further hold that “continuance” as used in the said constitutional enactment means any delay or postponement rather than its strict legal meaning. We further conclude that an accused held without bail under the second situational provision of the said constitutional enactment is entitled to a trial upon both the accusation and indictment within sixty (60) days of his incarceration on the accusation by the clear language of the enactment, but a requested continuance on the part of the accused in either the accusation or indictment will result in the denial of bail for sixty (60) days after the last day of the continuance.

The order of the trial court denying bail is affirmed.

W. C. DAVIS, J., concurs in the result.

      . It appears the appellant was permitted bail on the possession of a prohibited weapon charge.

      . The language in said Article I, § 11, guaranteeing bail to “all prisoners,” has reference to prisoners before conviction. Ex parte Ezell, 40 Tex. 451 (1874); Ex parte Nielssen, 446 S.W.2d 882 (Tex.Cr.App.1969); Ex parte Bitela, 452 S.W.2d 501 (Tex.Cr.App.1970).

      . Said § lla of Article I of the Texas Constitution as adopted November 6, 1956, read:
      “Sec. lla. Any person accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor may, after a hearing, and upon evidence substantially showing the guilt of the accused, be denied bail pending trial, by any judge of a court of record or magistrate in this State; provided, however, that if the accused is not accorded a trial upon the accusation within sixty (60) days from the time of his incarceration upon such charge, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder.”
      This earlier version of said § lla was held to be based upon a reasonable and substantial classification and did not violate constitutional rights against a class. Ex parte Miles, 474 S.W.2d 224 (Tex.Cr.App. 1971).
      The authority granted the Court of Criminal Appeals to review any judgment or order entered under the 1977 and current version of said § lla appears to extend the jurisdiction of the court which would not be subject to “such exceptions and under such regulations as may be prescribed by law.” See Article V, § 5 of the Texas Constitution.

      . The time in which notice of appeal must be given from an order or judgment entered under Article I, § lla, supra, is not prescribed by the Constitution or by the statutes. Procedural details should not be written into constitutions, but state constitutions should provide for reasonable procedural regulations by legislative enactment.

      . The State argued that this was not an appeal from a habeas corpus proceeding as appellant readily admitted in the trial court and here and thus could not be considered as such and that the order refusing to set bail was also not appealable under Article I, § 11a of the Texas Constitution.

      . The State argues that the granting of the “continuance” authorized the appellant to be held for another sixty (60) days without bail from October 30, 1978, the last day of the “continuance.” See Ex parte Smith, 555 S.W.2d 756 (Tex.Cr.App.1977).

      . Here the statute makes clear there is a distinction between a continuance and a postponement.

      . It is observed that Article 2168a, V.A.C.S., provides for a legislative continuance where the attorney is a member of the Legislature. The continuance provided is for the duration of the session or special session with thirty (30) days before and thirty (30) days after said session being included. The continuance involved does not appear to turn on the terms of court. See and cf. Ex parte Smith, 555 S.W.2d 756 (Tex.Cr.App.1977).

      . Appellant points out that he was indicted in 1976 for a capital murder offense in addition to the charges that were pending at the time of his incarceration of the solicitation of murder charge on August 20, 1978. He asserts he was denied bail on this earlier charge, and appealed without avail. Ex parte Davis, 542 S.W.2d 192 (Tex.Cr.App.1976). He asserts in his brief he was subsequently acquitted by a jury in 1977 of this additional capital murder charge and the State’s position was that one individual had shot each of the four victims in that capital murder case (where he was acquitted) and the other cases pending upon his arrest for solicitation of murder charge. He urges that the only disputed element of the offenses was the identity of the assailant, and that the acquittal by the jury in the capital murder case conclusively resolved this issue against the State for all time. See Ashe v. Swenson, 397 U.S. 436, 90 S.ct. 1189, 25 L.Ed.2d 469 (1970). Appellant candidly admits the record before us in this case is not adequate for this court to determine if the doctrine of collateral estoppel is applicable and that the trials upon the pending charges can never be legally tried, but argues the State knows this and has unfairly been using the pending indictments in bad faith to prevent bail in this case. In light of the record before us, we cannot pass on this contention.

      . As a practical matter, in many cases, the conclusion of a trial upon either the accusation or indictment will render the provisions of Article I, § 1 la, supra, inapplicable. If an accused is acquitted of the accusation, the question of bail on that charge becomes moot. If acquitted of the pending indictment, then there is no longer any pending indictment and the provisions of the constitutional enactment are no longer applicable. If convicted of the accusation, then other rules of bail become applicable and the constitutional enactment passes out of the picture. If convicted upon the pending indictment, then there is a conviction and no longer a pending indictment rendering the terms of the constitutional enactment inapplicable.

      . It has been held that the language in said Article I, § 11 of the Texas Constitution, guaranteeing bail to “all prisoners” has reference to prisoners before conviction. Ex parte Nielssen, 446 S.W.2d 882 (Tex.Cr.App.1969); Ex parte Bitela, 452 S.W.2d 501 (Tex.Cr.App.1970).

      . See and cf., however, Article 17.09, V.A.C. C.P., and the Special Commentary thereto.

      . It appears that former § (a) of said Article 44.04 (1965) was re-drafted into §§ (a) and (b) in the 1977 amendment and the former § (b) was left out.