Spiers v. State

552 S.W.2d 851 (1977)

George Earl SPIERS, Appellant, v. The STATE of Texas, Appellee.

No. 53248.

Court of Criminal Appeals of Texas.

June 29, 1977.

*852 R. G. Shivers, Jefferson, for appellant.

Tony Hileman, County Atty., Jefferson, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

BROWN, Commissioner.

Appellant's motion for rehearing is granted. Our prior PER CURIAM opinion is withdrawn.

Appellant was convicted of aggravated assault. The punishment, enhanced by two prior felony convictions under V.T.C.A., Penal Code, Sec. 12.42(d), was assessed at life imprisonment.

In support of the enhancement provisions of the indictment the State offered in evidence certified copies of two prior convictions in the State of Mississippi. One conviction was for burglary in cause number 2,658. The other was for assault with intent to commit murder in cause number 2,895. Although appellant admitted these two prior convictions, the burden was upon the State to prove that they were each final convictions. The record reveals that in the burglary conviction appellant's sentence was suspended. There is no showing that this suspended sentence was ever revoked. Accordingly, there is no proof that the burglary conviction was a final conviction. Absent such proof such conviction cannot be used for enhancement. Arbuckle v. State, 132 Tex.Cr.R. 371, 105 S.W.2d 219; Fetters v. State, 108 Tex.Cr.R. 282, 1 S.W.2d 312; Brittian v. State, 85 Tex.Cr.R. 491, 214 S.W. 351.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.