LOCATION: U.S. District Court for the Southern District of California, Central Division
DOCKET NO.: 68
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: Texas Court of Criminal Appeals
CITATION: 385 US 554 (1967)
ARGUED: Oct 17, 1966 / Oct 18, 1966
DECIDED: Jan 23, 1967
Facts of the case
Media for Spencer v. TexasAudio Transcription for Oral Argument - October 18, 1966 in Spencer v. Texas
Audio Transcription for Oral Argument - October 17, 1966 in Spencer v. Texas
Number 69, Robert A. Bell, Jr. petitioner versus Texas.
Tom R. Scott:
Mr. Chief Justice, may it please the Court.
This case is before the Court on a writ of certiorari to the Court of Criminal Appeals of the State of Texas.
North Carolina has filed an amicus brief.
In this case, trial was to a jury and the petitioner was charged with armed robbery.
In addition to the allegations of the primary offense, the state alleged that he had been previously convicted of a similar crime.
This was done pursuant to a Texas procedure which permitted the allegation of the prior offense for purposes of enhancing the penalty and obtaining a longer sentence in the event of conviction.
The question presented is whether the state may enter use to a jury evidence of the prior offense for purposes of obtaining an increase penalty prior to a finding by the same jury and the same time of the guilt or innocence of the accused.
This is a question of first impression in this Court.
There have been other recidivist procedures before the Court on questions of notice and on questions of equal protection.
However, none of these cases has had before it has brought to the attention of the Court the question presented in this case.
There is a conflict below in lower court authorities.
In the case of Michelson versus the United States, one involving the cross-examination of character witnesses, Mr. Justice Jackson in footnote 8 to that opinion made a reference to the possible fact that such a procedure would be acceptable.
However, we submit that this is not -- that this question is not decided in that case and it is unclear precisely what the reference in that case had reference to -- what that footnote had reference to.
Now this case, involves Article 62 of the Texas Penal Code.
That Section of the Penal Code provides a mandatory maximum penalty for second noncapital offense of a similar nature.
The validity of this statute is not contested.
The policy provision of this statute is not contested.
The only thing which is contested which is before this Court is propriety of permitting the state to try this in one proceeding and one hearing in which the same jury is used to determine the question of guilt or innocence and at the same time is informed at every step of the procedure throughout the proceeding of the accused prior criminal record.
And Texas no longer does this?
Tom R. Scott:
That is correct.
It has been amended.
It was amended effective January 1st of this year.
How many states do follow this practice, do you know?
Tom R. Scott:
As nearly as I can determine it, it appears to be 23, 23 to 24.
There are some appendices that have been attached to other applications for certiorari.
I have not searched it myself.
It's difficult to determine because frequently the states will have a statute which appears to be protected and entries on decisions some way it has come in to another point.