John Phillip Blackwell v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-90-001-CR

JOHN PHILLIP BLACKWELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 89-749-C

OPINION ON REHEARING

On October 9, 1991, holding that unadjudicated offenses and their details are not admissible in non-capital trials, we reversed the judgment and remanded the cause for a new punishment hearing. The State complains on rehearing that we failed to do a harm analysis. See Tex. R. App. P. 81(b)(2).

Appellant was indicted for aggravated assault, enhanced by two prior felonies. Thus, the second-degree felony was enhanced to a first degree felony punishable by "life or for any term of not more than 99 years or less than 5 years." See Tex. Penal Code Ann. 12.32-33 (Vernon Supp. 1991 and Vernon 1974). The jury assessed Appellant's punishment at life in prison.

During the punishment phase, evidence concerning the following extraneous unadjudicated offenses was admitted: (1) Appellant's confession that he stole tools from his grandfather, his aunt's radar detector, his grandfather's wallet, his aunt's purse, and a shotgun, a quilt, two watches and two lamps from a house; and (2) testimony revealing that Appellant, while attempting to escape from jail, drove a truck at a high rate of speed towards officers who were trying to apprehend him and then evaded officers after a high-speed chase. Based on the record as a whole, we cannot determine beyond a reasonable doubt that the admission of these unadjudicated offenses at the punishment phase did not contribute to Appellant's life sentence. See Tex. R. App. P. 80(b)(2).

Accordingly, we deny the State's motion for a rehearing. Appellant's motion for a rehearing is likewise denied.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

and Justice Vance

(Justice Cummings not participating)

Motion for a rehearing denied

Opinion delivered and filed October 30, 1991

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