Anaya v. State

988 S.W.2d 823, 1999 Tex. App. LEXIS 988, 1999 WL 72197
CourtCourt of Appeals of Texas
DecidedFebruary 10, 1999
DocketNo. 07-98-0196-CR
StatusPublished
Cited by15 cases

This text of 988 S.W.2d 823 (Anaya v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anaya v. State, 988 S.W.2d 823, 1999 Tex. App. LEXIS 988, 1999 WL 72197 (Tex. Ct. App. 1999).

Opinions

DON H. REAVIS, Justice.

Upon a not guilty plea, appellant Juan Stephen Anaya was convicted of the offense of indecency with a child by sexual contact, enhanced, and punishment was assessed at 30 years confinement. By a sole issue, appellant contends he was denied effective assistance of counsel. Based upon the rationale expressed herein, we will affirm.

Appellant does not challenge the sufficiency of the evidence. Thus, only the facts necessary to the resolution of appellant’s issue will be developed herein. The victim, along with her older sister and a young cousin, resided with her mother and appellant for many years. Appellant was looked upon as a father figure by the children. Several instances of inappropriate touching were reported by the victim to her aunt, and on July 16, 1997, the aunt reported the allegations of molestation to the police. The investigating officer made a report and contacted a case worker with Child Protective Services, who investigated the complaint.

Appellant was indicted on one count of indecency with a child regarding the victim, and by separate indictments was charged with one count of indecency with a child and one count of aggravated sexual assault regarding the victim’s older sister. Upon commencement of the trial, the three indictments were read in open court, to which appellant pleaded not guilty. The jury returned a guilty verdict on the count for indecency with a child as to the victim the subject of this appeal, but returned not guilty verdicts on the two counts regarding the older sister.

By his single issue, appellant presents three instances he contends rendered his trial counsel ineffective. Specifically, he asserts counsel’s performance was ineffective because (1) she elicited otherwise inadmissible extraneous offenses, (2) she opened the door for the State to present evidence of other extraneous offenses, and (3) during final argument, counsel’s comments “served to denigrate” appellant’s credibility.

During his testimony, appellant denied having any sexual contact with either the victim or her older sister. He did admit that he was an alcoholic and that at times, he engaged in “some pretty major fights” with the victim’s mother. Trial counsel then asked appellant if he had “gotten in trouble for some other things” to which appellant responded affirmatively, and the following colloquy occurred:

Q. What did you go to prison for, Stephen?
A. Burglary of a vehicle and burglary of a building.
[[Image here]]
Q. Have you been in trouble for anything else? (Emphasis added).
A. I had a criminal mischief.
Q. And that was a case involving a former girlfriend?
A. Yes, ma'am.
[825]*825Q. That’s been a long time ago?
A. Oh, yeah, in my high school years.
[[Image here]]
Q. Okay, You’ve gotten in trouble for having dope or pot?
A. Yes, ma'am.
Q. You’ve been convicted of possession of marijuana before?
A. Misdemeanor, yes.
Q. Misdemeanor. Do you have any other convictions? (Emphasis added).
A. No, ma'am, not that I can think of. Really just like tickets and- — -

On cross-examination, the prosecutor questioned appellant regarding other extraneous offenses. Specifically, appellant was asked about a 1988 conviction for public intoxication, a 1990 burglary of a habitation charge which he denied, a 1990 criminal mischief accusation which he also denied, and a 1996 hit-and-run accident. Upon twice denying the hit-and-run accusation, defense counsel asked to approach the bench and posed the following objection:

[Defense counsel]: I’m going to object to this further cross-examining about extraneous offenses that he doesn’t have convictions on.
If he is talking about unadjudicated offenses and he would like to bring them up outside the jury’s presence and prove them up we don’t have any objection to that. At this point we believe they are objectionable not only based on the motion in limine but under the rules of evidence.
[Prosecutor]: Judge, I’m entitled, once she puts her question, “Have you ever been in trouble with the law before?” and names specifically the times that he has got [sic] convictions and times when he has been in trouble with the law because otherwise it would leave the misimpression with the jury that that’s the only time he has been in trouble with the law.
[[Image here]]

Following this dialogue, the trial court overruled defense counsel’s objection. The State then introduced one more extraneous offense allegedly committed by appellant in 1992, when he falsely identified himself to a peace officer. Appellant stated he could not remember whether the incident occurred.

An accused puts his character for veracity in issue by testifying, and thus may be impeached in the same manner as any other witness. Hammett v. State, 713 S.W.2d 102, 105 (Tex.Cr.App.1986). When attacking the credibility of a witness, evidence of prior convictions shall be admitted if elicited from the witness or established by public record, but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect. Tex.R. Evid. 609(a).1 An exception, however, applies to Rule 609 when a witness makes statements concerning his criminal past which create a false impression with the jury as to the extent of either his prior (1) arrests, (2) convictions, (3) charges or (4) “trouble” with the police. Prescott v. State, 744 S.W.2d 128, 131 (Tex.Cr.App.1988); see also Hammett, 713 S.W.2d at 105. Where a witness creates a false impression of his criminal past, he “opens the door” for opposing counsel to expose the falsehood by introducing inadmissible criminal conduct. Delk v. State, 855 S.W.2d 700, 704 (Tex.Cr.App.1993). In determining to what extent a colloquy “opened the door,” we examine how broadly one would interpret the question asked. Id.

Here, after defense counsel elicited extraneous offenses from appellant, she asked, “Have you been in trouble for anything else”? and also asked, “Do you have any other convictions”? Appellant replied, “No, ma'am, not that I can think of.” This statement created the impression that appellant had disclosed all his “troubles” and all his convictions. However, counsel’s overly broad questions “opened the door” for the prosecution to inquire about otherwise irrelevant and inadmissible extraneous offenses regardless of whether he had been convicted of them, in order to expose the false impression left with the jury. Because we find that defense coun[826]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Alvarado, Jesse Dimas
Court of Appeals of Texas, 2015
Adrian Francisco Miranda v. State
Court of Appeals of Texas, 2015
Jesse Dimas Alvarado v. State
Court of Appeals of Texas, 2015
Michael Louis Hall v. State
Court of Appeals of Texas, 2010
Delvetra Lasherl Jennings v. State
Court of Appeals of Texas, 2010
David Lee Sanders v. State
Court of Appeals of Texas, 2003
Jamaine Edward Lewis v. State of Texas
Court of Appeals of Texas, 2002
Wilson, Timothy Clyde v. State
Court of Appeals of Texas, 2002
Salas, Romolo v. State
Court of Appeals of Texas, 2001
Mindieta, Ricky Don v. State
Court of Appeals of Texas, 2001

Cite This Page — Counsel Stack

Bluebook (online)
988 S.W.2d 823, 1999 Tex. App. LEXIS 988, 1999 WL 72197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anaya-v-state-texapp-1999.