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EVANS MAYO v. STATE (12/18/57)

decided: December 18, 1957.

EVANS MAYO
v.
STATE



Unlawful Practice of Dentistry. Appeal from County Court at Law No. 3 of Harris County; penalty, $2000.00 fine and confinement in jail for six months. Hon. Madison Rayburn, Judge Presiding.

COUNSEL

E. B. Votaw, Vidor, and Robert T. Grammer, Houston, for appellant.

Dan Walton, District Attorney, Thomas D. White, Assistant District Attorney, Joe S. Moss, Special Prosecutor, all of Houston, and Leon Douglas, State's Attorney, Austin, for the state.

Davidson, Judge. Morrison, Presiding Judge, dissenting.

Author: Davidson

[ 166 Tex. Crim. Page 471]

    On October 30, 1957, we ordered a reversal of this case. The state and the appellant have each filed a motion for rehearing:

The state contends that the judgment should have been affirmed.

The appellant agrees that the judgment was properly reversed, but insists that we should have gone further and ordered the prosecution dismissed.

Upon further consideration, we have decided that the state's motion for rehearing should be granted and that of the appellant overruled.

Therefore, the opinion heretofore rendered is withdrawn, the reversal is set aside, and the judgment of the trial court is now affirmed in accordance with the following opinion:

This is a conviction for the unlawful practice of dentistry, with punishment assessed at a fine of $2,000 and six month's confinement in jail, enhanced by reason of prior convictions.

The primary offense alleged was that appellant did unlawfully practice dentistry without a license, on or about the 30th day of May, 1956, in Harris County.

[ 166 Tex. Crim. Page 472]

    It was also alleged that on June 3, 1946, the appellant was convicted in the County Court at Law of Jefferson County, in Cause No. 23125, of the offense of unlawfully practicing dentistry. This will hereafter in this opinion be referred to as the first prior conviction. It was further alleged that on June 23, 1948, appellant was convicted of the unlawful practice of dentistry, in Cause No. 23948, in the County Court at Law of Jefferson County, Texas. This will be hereafter in this opinion referred to as the second prior conviction.

It was also further alleged that on June 16, 1952, appellant was convicted of the unlawful practice of dentistry, in Cause No. 18579, in the Criminal District Court of Jefferson County, Texas. This will be hereinafter referred to in this opinion as the third prior conviction. The Criminal District Court of Jefferson County has misdemeanor jurisdiction. Art. 52-160, Vernon's C.C.P.

Art. 61, P.C., provides as follows:

"Second and subsequent conviction for misdemeanor. -- If it be shown on the trial of a misdemeanor that the defendant has been once before convicted of the same offense, he shall on a second conviction receive double the punishment prescribed for such offense in ordinary cases, and upon a third or any subsequent conviction for the same offense, the punishment shall be increased so as not to exceed four times the penalty in the ordinary cases."

Under the allegations of the information, that statute was invoked and its provisions made applicable when the proof showed that appellant was guilty of the primary offense charged and that he had been convicted of any two of the three prior convictions alleged.

In keeping therewith, the trial court, in his charge, instructed the jury to the effect that if appellant was guilty of the primary offense and had been convicted of any two or all three of the prior offenses alleged his punishment would be not less than $400 nor more than $4,000, or by confinement in jail for any period from four months to forty-eight months, or by both such fine and imprisonment.

The jury was also instructed that in the event it found

[ 166 Tex. Crim. Page 473]

    appellant guilty of the primary offense charged but failed to find that he had been theretofore convicted of as many as two of the prior offenses alleged, then his punishment would be by fine of not less than $100 nor more than $1,000, or by confinement in jail from one month to twelve months, or by both such fine and imprisonment. Under such charge, the jury returned a general verdict finding appellant guilty, as charged, and assessed his punishment at a fine of $2,000 and confinement in jail for a term of six months.

By various motions and objections, appellant challenged the right of the state to use the first prior conviction alleged in the information for the purpose of enhancing the punishment, because the state had used the first prior conviction to enhance the punishment as a second offender when he was convicted of the third conviction.

In other words, if appellant's contention be tenable, the state, having used the prior conviction one time to enhance punishment as a second offender, was forever barred from thereafter using that conviction for ...


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