The offense is possession of heroin; the punishment, enhanced by two prior convictions for non-capital felonies, life.
Appellant's first ground of error is that the Court erred in failing to grant him a new trial when juror Thomason testified that during their deliberations they asked the bailiff, "Does a vote have to be unanimous," and he replied in the affirmative.
Appellant's second ground of error is the identical question decided adversely to his contention in Arechiga v. State, Tex.Cr. App., 462 S.W.2d 1, concerning cross-examination as to a collateral matter.
His third ground of error relates to the failure to corroborate the alleged accomplice. This contention has been decided adversely to appellant in Herrera v. State, Tex.Cr.App., 462 S.W.2d 597 and Corpus v. State, Tex.Cr.App., 463 S.W.2d 4, wherein we were discussing the same witness, Mary Hernandez.
Appellant's fourth ground of error is that the Court erred in not granting his motion to limit the penalty to fifteen years. He bases this contention upon the fact that this appellant was indicted as a habitual criminal and brought to trial before Judge Blackwell, where the State waived or abandoned the allegations as to the prior convictions and Judge Blackwell sentenced the appellant to fifteen years for the primary offense. Subsequently, Judge Blackwell granted appellant's motion for new trial. The prior indictment was dismissed and the appellant was again indicted as a habitual criminal, with the same two prior convictions alleged for enhancement, and brought to trial before Judge Thurman where the prior convictions were proven and his punishment was assessed by Judge Thurman at life as required by law.
The proof before Judge Thurman that the appellant was the same person who had been convicted in the two prior convictions alleged for enhancement distinguishes this case from North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, upon which appellant relies. See Branch v. State, Tex.Cr.App., 445 S.W.2d 756.
Appellant's fifth ground of error is that one of the two prior convictions alleged for enhancement was void because the record of the trial of that cause, which has been made a part of this record, reflects that no separate hearing on the admissibility of the confession was held by the trial court. He relies on Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L. Ed.2d 908 (1964): for authority. He neither alleges nor contends that the confession was involuntarily given nor does he allege any facts which would establish the involuntariness of the confession. This
Finding no reversible error, the judgment is affirmed.