The offense is breaking and entering an automobile with the intent to commit theft with two prior offenses of the same nature alleged for enhancement; the punishment, life.
Appellant's second and third
Appellant next contends that the court erred in not permitting him to establish that the defense witnesses had been interviewed separately by counsel and not in each other's presence. Although the objection was sustained, the appellant's next question, to which there was no objection and to which he received an answer, was substantially the same as the earlier one. No error is shown.
Appellant's fourth ground of error is that the court erred in declining to grant him the right to conduct a secret ballot poll of the jury. We do not construe Art. 37.05, Vernon's Ann.C.C.P., as authorizing that which appellant requested. No reversible error is shown.
Appellant's fifth ground of error relates to the proof of his prior convictions. He claims that appellant's fingerprints, taken to compare with those in his "prison packets," were secured "prior to
Appellant's sixth ground of error is that the punishment was cruel and excessive since the amount of money stolen was less than a dollar. Appellant was found guilty of breaking and entering a motor vehicle with intent to commit theft. The State is not required to prove any actual taking. Martinez v. State, supra.
Appellant's last ground of error is that he was prejudiced by the admission of testimony that he lived at least six different places in ten years. Appellant's objection to the testimony was sustained. Appellant requested no further relief. It is well settled that appellant must continue to object until he receives an adverse ruling. Burks v. State, Tex.Cr.App., 432 S.W.2d 925.
Appellant's first ground of error relates to testimony concerning another offense. He claims that testimony by Dallas Police Officer Strebeck, at the punishment phase of the trial, that he arrested the appellant on June 29, 1964, at "Carpenter and Oakland Streets" for "unlawful entry into a motor vehicle with intent to commit the crime of theft," was evidence of a prior arrest without proof that it resulted in a prior conviction and was, therefore, violation of Art. 37.07, V.A.C.C.P. The record reflected appellant did not object to the officer's testimony and, consequently, nothing is presented for review. Vera v. State, Tex.Cr.App., 473 S.W.2d 22; Jackson v. State, Tex.Cr.App., 477 S.W.2d 879, (March 22, 1972).
However, the indictment alleged that the appellant had been previously convicted of felony theft on August 5, 1960, in Criminal District Court No. 3 of Dallas County; that after such conviction became final, he was convicted of "unlawful entry into a motor vehicle with intent to commit crime of theft," in Criminal District Court No. 3 of Dallas County on October 12, 1964, and that after such conviction had become final, the instant or primary offense of breaking and entering a motor vehicle had been committed on September 3, 1969.
The record reflects that the State proved the prior convictions alleged in the indictment by introducing "prison packets" from the prior convictions plus a comparison of the appellant's fingerprints with those in the packets. Vessels v. State, Tex.Cr.App., 432 S.W.2d 108; Childress v. State, Tex. Cr.App., 472 S.W.2d 133.
In order to invoke the provisions of Art. 63, Vernon's Ann.P.C., it is also necessary to prove that each succeeding offense was committed after the conviction for the preceding offense became final. Hutchinson v. State, Tex.Cr.App., 481 S.W.2d 881 (May 31, 1972). In the case at bar there is insufficient proof that the second conviction alleged was for an offense committed by the appellant after the first prior conviction became final.
As reformed, the judgment is affirmed.