Johnson v. State

OPINION BURGESS, Justice. Appellant was charged by indictment with five offenses of aggravated robbery with an allegation of three prior felony convictions in the enhancement paragraph. A jury found appellant guilty of all five offenses, and the court assessed punishment at ninety-nine years on each offense and included a finding that appellant used a deadly weapon. Appellant urges eight points of error. We find points of error one and two dispositive and reverse. Appellant filed a motion in limine seeking to prohibit the state from mentioning appellant’s prior criminal record in the presence of the jury or jury panel. This motion was granted with the proviso by the court that “[t]he state may discuss during voir dire the law as it relates to punishment concerning enhancement counts.” Appellant did not file a written election to have the jury assess punishment prior to voir dire as required by TEX. CODE CRIM.PROC. ANN. art. 37.07, sec. 2(b) (Vernon Supp. 1989). Thus, by operation of law, the court was to assess punishment. The state began to voir dire the venire panel on the range of punishment applicable to aggravated robbery with prior convictions. Appellant objected that the interjection of prior convictions was inflammatory and prejudicial. The objection was overruled and appellant was given a “running objection.” It is clear that the state cannot read the enhancement portion of the indictment at the guilt or innocence stage. TEX.CODE CRIM.PROC.ANN. art. 36.-01(a)(1) (Vernon Supp.1989); Heredia v. State, 508 S.W.2d 629 (Tex.Crim.App.1974). Neither can the state give the specifics of the prior offenses as this is tantamount to reading the allegations. Frausto v. State, 642 S.W.2d 506, 509 (Tex.Crim.App.1982). The state may, however, question the prospective jurors abstractly as to the range of punishment if the jury is to assess pun [560] ishment and the punishment is not absolutely fixed by law. Martinez v. State, 688 S.W.2d 964 (Tex.Crim.App.1979); Bevill v. State, 673 S.W.2d 781 (Tex.Crim.App.1978). In this instance, the jury was not to assess the punishment. There was no reason to voir dire the panel on punishment alternatives under the enhancement allegations, and allowing such voir dire was erroneous. Several members of the venire stated they inferred from the prosecutor’s statements and questions that appellant had prior convictions. Appellant’s objection was overruled; thus, there was no instruction to the panel to disregard the questions and statements about prior convictions. We are unable to say that the erroneous inclusion of prior convictions during voir dire was harmless beyond a reasonable doubt. TEX.R.APP.P. 81(b)(2). The trial court should have sustained the objection and granted the mistrial. Points of error one and two are sustained. We need not reach the other points. TEX.R. APP.P. 90(a). The cause is reversed and remanded for a new trial. REVERSED AND REMANDED.