VILLAREAL v. STATE

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for burglary with intent to commit theft. The punishment, enhanced under the provisions of Article 63, Vernon's Ann.P.C., was assessed at life.

In addition to the instant offense, the indictment alleged that on June 22, 1954, the appellant was convicted of the offense of felony theft in Cause No. 69107 in the Criminal District Court No. 2 of Harris County, Texas, and that after such conviction became final the appellant committed the offense of burglary and on September 8, 1960, was duly convicted of such offense in Criminal District Court No. 4 of Harris County, Texas, in Cause No. 92359.

The sufficiency of the evidence as to the primary offense is not challenged. Appellant, however, vigorously contends the court erred in enhancing punishment under Article 63, supra, since the evidence is insufficient to reflect that the 1960 burglary conviction alleged for enhancement was for an offense committed after the 1954 felony theft conviction (also alleged for enhancement) became final.

In Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697, it was said:

In the case at bar the State, at the penalty stage of the proceedings, introduced authenticated prison records of the appellant which included certified copies of the judgments and sentences in the prior convictions alleged for enhancement as well as photographs and sets of fingerprints.

Thereafter the State offered into evidence a certified copy of the indictment in said Cause No. 92359, the 1960 burglary conviction,1 and then the record reflects the following:

The State has taken the position that evidence supposedly missing was supplied by the stipulation. The appellant contends that a stipulation to be valid must be clear and unambiguous and that the stipulation in question, therefore, cannot be considered.

We need not consider at all the stipulation to properly dispose of appellant's contention.

It is true as appellant contends that normally the State may not supply proof of the date of the commission of the offense resulting in the second prior conviction (alleged for enhancement) by offering only the indictment therefrom. See Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383. However, in Garay v. State, Tex.Cr.App., 389 S.W.2d 952, it was held an indictment is not evidence as to when a prior offense was committed other than where there is a final conviction the offense should be presumed to have been committed some time within the period of limitation prior to the filing of the indictment. The 1960 burglary conviction became final on September 8, 1960, no notice of appeal having been given. See Robertson v. State, Tex.Cr.App., 418 S.W.2d 678; Wheat v. State, supra. The indictment in such case was shown to have been presented and filed on July 22, 1960. The statute of limitation for the offense of burglary is five years. See Article 12.03, V.A.C.C.P. Therefore, it is presumed that the offense was committed within five years prior to July 22, 1960, or sometime after July 22, 1955. The first prior conviction (Cause No. 69107) alleged for enhancement became final on June 22, 1954, no notice of appeal having been given. We conclude, therefore, that the evidence was sufficient to show that the first prior conviction alleged for enhancement was a final conviction before the commission of the offense which formed the basis of the second prior conviction.

Appellant's second ground of error attacks the use of a set of fingerprints taken from him during the process of the trial and utilized by a fingerprint expert at the penalty stage of the trial for comparison purposes with the fingerprints contained in the authenticated prison records in order to identify him as one and the same person so previously convicted as alleged. This Court has repeatedly held such fingerprints so obtained are admissible and no violation of the privilege against self-incrimination is involved. Gage v. State, Tex.Cr.App., 387 S.W.2d 679; De La Rosa v. State, Tex.Cr.App., 414 S.W.2d 668; Travis v. State, Tex.Cr.App., 416 S.W.2d 417; Harrington v. State, Tex.Cr.App., 424 S.W.2d 237; Branch v. State, Tex.Cr. App., 445 S.W.2d 756; Washington v. State, Tex.Cr.App., 434 S.W.2d 138; Johnson v. State, Tex.Cr.App., 432 S.W.2d 98; Trammell v. State, Tex.Cr.App., 445 S.W.2d 190; Price v. State, Tex.Cr.App., 449 S.W.2d 73; Tea v. State, Tex.Cr. App., 453 S.W.2d 179; McKenzie v. State, Tex.Cr.App., 450 S.W.2d 67; Gordon v. State, Tex.Cr.App., 461 S.W.2d 415; Williams v. State, Tex.Cr.App., 461 S.W.2d 614; Martin v. State, Tex.Cr.App., 463 S.W.2d 449; Rinehart v. State, Tex.Cr. App., 463 S.W.2d 216.

When such evidence was offered at the penalty stage of the trial reflecting that the appellant had been fingerprinted by the expert witness a few minutes before, there was no objection.

Appellant actually appears to complain about the action of the Assistant District Attorney who, earlier in the trial, had gone during the noon hour to a holdover cell near the courtroom where the appellant, in absence of counsel, was being held and demanded that he allow his prints to be taken by the expert witness who was present. The appellant refused, stating he was eating his lunch. He appears to disprove of an alleged statement then made by the prosecutor that he would get "three deputies" to see that the prints were obtained. The prints were not, of course, taken at the time and the action of the prosecutor was brought to the attention of the trial judge who stated that he would order the appellant printed if and when it became necessary.

We perceive no error.

The judgment is affirmed.