Pollock v. State

CHRISTIAN, Judge. — The offense is burglary; the punishment, confinement in the penitentiary for twelve years. For the purpose of enhancing the penalty it was averred in the indictment, in substance, that, prior to the commission of the present offense of burglary, appellant had been convicted in the district court of Navarro County of an offense of like character, to-wit: burglary. The State introduced in evidence certified copies of the indictment and judgment showing a prior conviction for burglary in the district court of Navarro County. It was not shown that appellant had been sentenced. The district clerk of Navarro County testified that appellant appealed from said judgment of conviction. The disposition of the appeal was not shown. In the state of the record, the opinion is expressed that it cannot be presumed that the judgment was final. It is true that the burden was not on the State to prove that the judgment had not been reversed or set aside. However, in view of the fact that the State proved that an appeal had been taken, and failed to show that appellant had been sentenced, it cannot be presumed that said judgment was final. The judgment is reversed and the cause remanded. Reversed and remanded. *464 The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.