Benard v. State

ON STATE’S MOTION FOR REHEARING

ROBERTS, Judge.

In its motion for rehearing, the State maintains that appellant’s plea of former conviction was properly overruled by virtue of Art. 28.13, Vernon’s Ann.C.C.P., and our holding in the case of Harrison v. State, 409 S.W.2d 848 (Tex.Cr.App.1966). The State contends that the holding in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1969) does not affect Art. 28.13 or our holding in Harrison v. State, supra, because Waller only overruled the “dual sovereignty” fiction which had been followed by a number of states, not including Texas.

A…