Ruth v. State

653 S.W.2d 437 (1983)

Bryan Lee RUTH, Appellant, v. The STATE of Texas, Appellee.

No. 62883.

Court of Criminal Appeals of Texas, Panel No. 1.

July 13, 1983.

Stephen L. Halsey, Dallas, for appellant.

Henry Wade, Dist. Atty. and J.T. Langford and Kevin Byrne, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before TOM G. DAVIS and W.C. DAVIS, JJ.

W.C. DAVIS, Judge.

Appellant was convicted of credit card abuse. The jury assessed punishment, enhanced under V.T.C.A., Penal Code, § 12.42(a), at 20 years' confinement.

During the punishment phase of the trial, and after the introduction of evidence in that phase including expert testimony *438 showing appellant to be the person convicted of a prior offense as alleged in the indictment, it came to the attention of the court that appellant had not pled to the enhancement count and that that count had not been read to the jury.

At that time appellant was arraigned on the enhancement count, and the indictment was then read to the jury. The court then overruled appellant's request that the jury be instructed to disregard the testimony which had been heard at the punishment phase prior to the reading of the indictment. Appellant now contends the court erred in overruling the request in the absence of a re-offer or stipulation of that evidence.

In Welch v. State, 645 S.W.2d 284 (Tex. Cr.App.1983), we held it to be reversible error to permit the jury to consider evidence which had been presented under the same circumstances where, as here, the evidence was essential to the proof of the enhancement allegation and was not reintroduced or stipulated, and where, as here, an objection sufficient to point out the defect was made.[1]

In light of Welch, supra, the judgment is reversed and remanded.

[1] This writer was among the four dissenters in Welch, and still finds it anomalous that evidence introduced at the guilt/innocence phase may be considered but that which is introduced at the punishment stage but prior to the reading of the enhancement paragraph may not. The en banc decision of this Court, however, must prevail over the individual misgivings of the author of a panel opinion.