Bell v. State

620 S.W.2d 116, 1981 Tex. Crim. App. LEXIS 1112

Opinions

OPINION

CLINTON, Judge.

Appeal is taken from a conviction for the offense of aggravated robbery. Appellant’s punishment was assessed at 75 years confinement.

Viewed in a light most favorable to the jury’s verdict of guilt, the evidence adduced revealed appellant to be one of two men who entered a Kentucky Fried Chicken restaurant located on Mockingbird Lane, then covered his face with a mask and held four employees at gunpoint while his unmasked confederate obtained the store’s money on September 18, 1977.

Court appointed counsel for appellant has filed a brief in which two grounds of error are raised; neither has merit. Appellant pro se, however, has advanced ten grounds of error, of which ground of error number five must be sustained. This ground complains of the trial court’s admission, over objection, of proof of a prior misdemeanor conviction for possession of marihuana, apparently under the theory that appellant had “opened the door” for the introduction of such evidence.

After the State rested its case in chief and appellant adduced testimony from two defense witnesses, appellant took the stand to testify in his own behalf, obviously against the advice of counsel. The transcription of the court reporter’s notes reveals the following:

“Q [By Defense Counsel]: Did I advise you that should you take the stand that the ... District Attorney would go into your past, if there was anything criminal in your past they would bring it out in front of the jury?

A: Yes, sir.

Q: Have you anything in your past that is of a criminal nature?

A: Yes, sir.1

Q: Have you been down to what we call the joint, Texas Department of Corrections?”

Appellant admitted that he had been convicted of the felony offense of embezzlement on June 20, 1973, and was assessed a sentence of two years. According to appellant, he spent seven months in the Department of Corrections, then made parole the first time he was considered and thereafter did one year “on the streets,” during which he had “no problems” and there discharged his sentence. Appellant stated that the embezzlement conviction was his only felony conviction and the seven months he served pursuant thereto was the only time he had ever spent in prison. He then related his activities on the day of the robbery, and denied that he had participated in it.

After appellant was passed to the State for cross examination, the prosecutor stated:

“Your Honor, I would like to get the reporter to read back a question asked by Defense [sic], because I want to be absolutely sure it was asked just the way I wrote it down. And I believe it was about the fifth ... or the tenth question that was asked the Defendant and I believe the question was, quote, have you anything in your past that is of a criminal nature.

(whereupon the question was read back by the Court Reporter.)

The Court: Is that what you wanted, counsel?

[Prosecutor]: Yes, sir.

The Court: All right. Go ahead.

Q [By Prosecutor]: Now Mr. Bell, I’m going to ask you part by part to give the full answer to that question that was asked to you by your attorney. I’ll just ask you first of all whether or not you are the same Marvin Bell who on May the 25th, 1973, in Cause No. C-73-1170 in Criminal — County Criminal Court of Dallas County, Texas, received a fine of one hundred dollars for the criminal offense of fleeing from a police officer?

A: Yes, sir.

Q: And you have already testified that you are the same person who on July the 12th, 1973 was arrested for the charge of embezzlement?

A: Yes, sir.

The prosecutor elicited further testimony regarding the embezzlement conviction, introduced a “pen packet” concerning it,² then continued:

“Q: Now, I’ll ask you whether or not you are also the same Marvin Earl Bell who on June the 25th of 1976 in Cause No. CCR-75-5084-B was arrested for the charge of possession of marijuana [sic], a misdemeanor offense?

[Defense Counsel]: Your Honor, I would object. That is to infíame the minds of the jury. This is not against moral turpitude.

[Prosecutor]: Judge, I would love to answer that- objection. He asked this witness the question, ‘Have you anything in your past of a criminal nature,’ and he has opened the door for anything regarding criminal activity. I didn’t ask it, he did. And I certainly am entitled to show—

[The Court]: All right. Go ahead.

Q [By Prosecutor]: Is that you?

A: Yes.

[Defense Counsel]: Your Honor, you overruled our objection?

[The Court]: Yes, sir.

A: Yes, sir.

Q: And you received a sentence in that cause, thirty days probated for one year, is that correct?

* * ⅜ ⅜ * *

A: I received a hundred and fifty dollar fine and six months probated.

* * * sfc * *

Q: So if the document reflected that it was one year, that would just be wrong, is that correct?

A: Yes, sir, to my knowledge.”³

Apparently, the notion dictating the prosecutor’s conduct and the trial court’s rulings — that appellant “opened the door” — is a misconception of the evidentiary policy advanced by Article 38.24, Y.A.C.C.P., which provides:

“When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to explain the same may also be given in evidence.”

Clearly, the rule contemplates insuring against any litigant’s presenting an incom-píete or biased version of facts which are adduced by him before the fact finder, but the “bottom line” criterion for admission of any evidentiary fact is that it be relevant to a material issue in the case on trial. See Ochoa v. State, 481 S.W.2d 847 (Tex.Cr.App.1972); Zonora v. State, 121 Tex.Cr.R. 637, 51 S.W.2d 724 (1932).

When appellant’s attorney asked the question thought to have “opened the door,” he referred to appellant’s “past of a criminal nature” which would be brought out by “the assistant district attorney” should appellant take the stand. It is a well settled principle that should one criminally accused choose to waive his right against self-incrimination by taking the witness stand, he is subject to being cross examined, and having his credibility impeached the same as any other witness, Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); Holder v. State, 140 Tex.Cr.R. 55, 143 S.W.2d 613 (1944). But it is equally well settled that the State’s use of prior specific acts of misconduct committed by a witness to reflect on his credibility is limited to introduction of the fact of the witness’ final conviction for a felony or a misdemeanor offense involving moral turpitude. See generally Murphy v. State, 587 S.W.2d 718 (Tex.Cr.App.1979).

Thus, if defense counsel can be said to have “opened the door” for anything, it was for the introduction of appellant’s “past of a criminal nature” which was admissible upon offer by the State, something toward which the prosecution had no “door” obstructing its passage to begin with. Furthermore, appellant admitted that he had a criminal past which could be adduced by the State before the jury. Therefore, no incorrect or incomplete version of the truth was presented to the jury by appellant, which would have allowed the prosecution to adduce ordinarily inadmissible⁴ “criminal activity” to correct that version of the facts.

The only circumstance under which the fact of a misdemeanor conviction not involving moral turpitude, an arrest, indictment or other mere accusation may be admitted on the issue of a witness’ credibility is when the witness makes a “blanket statement concerning his conduct, such as never having been charged [with] or convicted of any offense, or never having been ‘in trouble’,” on direct examination. Murphy, supra, at 722, n. 294; Hoffman v. State, 514 S.W.2d 248, 254 (Tex.Cr.App.1974). Because appellant here made no such blanket assertion, proof of his misdemeanor conviction for possession of marihuana had no probative value regarding any issue involved in this case.

We therefore hold that the trial court erred by admitting before the jury proof of appellant’s misdemeanor conviction for possession of marihuana, an offense which, by statute, does not involve moral turpitude. Article 4476-15, V.T.C.A., Civil Statutes, Section 4.05(c).

Our next inquiry must focus on whether the trial court’s error in this regard requires reversal of appellant’s conviction.

The record reveals that after the exchange recited ante at p. 120 in which the trial court overruled appellant’s objection— obviously agreeing with the prosecutor that appellant “opened the door” for “anything regarding criminal activity” — the floodgate gave way. Appellant was asked whether he had been arrested for another aggravated robbery, and charged with that offense along with “Morris Wayne Jackson,” a name the prosecutor had repeatedly interjected into the proceeding over objection. When defense counsel objected and requested permission to approach the bench, the trial judge retorted, “You can make the objection there, counsel.”

After an off the record discussion, the assistant district attorney confronted appellant with a question as to his having bought a “shiny new 9 millimeter automatic pistol” around September of 1977. When defense counsel objected, stating “what relevance does it have? * * * It’s highly prejudicial,” ⁵ the prosecutor responded, “It’s a criminal offense,” and the trial court overruled the objection. Appellant denied that he had bought a 9 millimeter automatic pistol.

Next the prosecutor asked appellant whether he had been arrested for yet another aggravated robbery, but this time, no objection was voiced.⁶ After appellant admitted the arrest, the record reflects the following:

“Q [By Prosecutor]: And I will ask you whether or not you are the same Marvin Earl Bell who stands indicted not only in this cause for which you are on trial, but these other two causes for which you are on trial?

A: Yes, sir.

Juror: What other two, what other two causes?”

On rebuttal, the State called Morris Wayne Jackson, who testified that he had been appellant’s confederate not only in the robbery on trial but also in the robberies of two other Kentucky Fried Chicken stores located on Lemmon and Lancaster Avenues respectively, as well as the robbery of a bakery. Jackson’s testimony concerning the 9 millimeter automatic pistol was as follows:

“Q [By Prosecutor]: Did the Defendant ever have a 9 millimeter?

A: Yeah.

Q: How did he get ahold of that?

A: Beats me. He said some dude wanted to sell it.

Q: Some dude wanted to sell it to him?

A: Uh-huh.

Q: He bought it?

A: Yeah.”

At the end of Jackson’s testimony, the prosecutor asked the witness to identify State’s Exhibit No. 19, a gun which Jackson stated appellant had shown him “after [appellant] bought it,” and the weapon — apparently the 9 millimeter automatic — was admitted into evidence.⁷

It may be seen that the ramifications of the trial court’s erroneous admission of appellant’s misdemeanor conviction for possession of marihuana, on the ground it was allowed, were far greater than interjection of proof of one minor offense.⁸ Furthermore, the State’s evidence presented in its case in chief consisted only of three somewhat tentative identifications of appellant as one of the perpetrators of the robbery.⁹ No other direct or circumstantial evidence was introduced which would have connected appellant to the crime. Thus, the State’s evidence cannot be characterized in this case as “overwhelming.”

We cannot say that the trial court’s error did not contribute to appellant’s conviction beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Accordingly, the judgment of conviction is reversed, and this cause is remanded to the trial court.

Before the court en banc.

Footnotes

1

. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

2

. The prosecutor asked appellant whether he was placed on “probation” a year and one half after his conviction, and appellant — seemingly not discerning between “probation” and “parole” — said “yes.” The prosecutor then alleged that “that probation was finally revoked ... was it not?” Appellant replied that it was “never provoked [sic].” Asking again about a revocation, the assistant district attorney had appellant identify his photograph in the “pen packet” and it was admitted into evidence.

Apparently having reviewed the “pen packet” himself, the prosecutor began again, this time eliciting the fact that appellant had been assessed a two year sentence on conviction for embezzlement in 1973, then concluded:

“Q: ... So as a matter of fact, you did not receive felony probation, you were sentenced at that time to the Texas Department of Corrections for that case, or within a week?”

To which appellant replied,

“Yes, sir.”

3

.The prosecutor did not, however, produce any “document” regarding this misdemeanor conviction.

4

.Compare Reese v. State, 531 S.W.2d 638 (Tex.Cr.App. 1976) and Nelson v. State, 503 S.W.2d 543 (Tex.Cr.App. 1974).

5

. The pistol identified by witnesses as being “similar” to the one used in the robbery by the man identified as appellant, was a .32 caliber chrome plated six shot revolver, a “Saturday Night Special,” which had long been admitted into evidence as State’s Exhibit No. 7.

6

. In fact, defense counsel, apparently aware of both the futility of his complaints and the attention his objections were drawing to his client’s “criminal activity,” voiced no further objection through the remainder of the trial, all of which was devoted to adducing proof of these collateral matters.

7

. In Hoffman, supra, it was stated:

“While great latitude is allowed in cross-examination in attempts to discredit the witness, the witness may not be cross-examined as to any fact that is collateral and irrelevant to the issue merely for the purpose of laying a predicate for the introduction of independent evidence to impeach him by showing that, as to the matter embraced in the question, the witness has answered falsely. Corpus v. State, 463 S.W.2d 4 (Tex.Cr.App. 1971); McCormick and Ray, Texas Law of Evidence (2nd Edition), Sec. 683, p. 526; 62 Tex..Iur.2d, Witnesses, Sec. 224.” 514 S.W.2d at 252.

8

. Appellant on redirect examination was able to ameliorate the effect on the jury of the possession of marihuana conviction when his attorney asked “... how many pounds did you have?”, and he explained, “I think it was two joints.”

9

. Three employees of the Kentucky Fried Chicken store testified. One was Edward Brooks, the assistant manager, who, like the robbers, was a black man. Both Charles Adair and Tinya Meeker admitted that they initially paid little attention to the man identified as appellant, thinking he was “a friend of Ed’s,” as he came around the counter, before he concealed his face with a mask.

Edward Brooks testified that he observed the robber only “as he came through the counter ... stopped, said ‘be cool,’ then ... continued on around.” Brooks stated that he remembered the robber’s skin color as “a little lighter” and his height as shorter than appellant’s. Brooks also admitted that he “doubted” his recollection of appellant was definite enough that he would have recognized him as the robber had he met him in any place other than the courtroom. When asked whether he was sure appellant was the man who robbed him by the prosecutor, Brooks replied, “That’s the face of the man that came to the door and put the hat over his head.” When the prosecutor attempted to pursue Brooks’ answer, defense counsel objected on the ground of bolstering and the trial court responded, “Well, I’m not sure — * * * Mr. Brooks, the Court understood you to say he [sic] identified this man as robbing him, that’s the case, is it not?”, to which Brooks replied, “right.”

Tinya Meeker made the most positive identification of appellant, stating she had an opportunity to view him briefly on two occasions, but conceded that the second time she was very scared and “wasn’t really seeing or hearing anything right that moment,” and “I don’t recall watching him. All I recall is seeing the hat [or ski mask].” On cross-examination, Meeker admitted telling defense counsel during a pretrial interview that she “did not remember anything or see anything,” but claimed she had been joking. When asked whether her recollection of appellant from the night of the robbery was definite enough to recognize him anywhere other than in a courtroom where he is “the only black male,” she replied “I don’t know.” When defense counsel followed with, “If you don’t know then you must be saying that your recollection of Mr. Bell is not that definite?”, the trial judge sustained a prosecution objection.

Charles Adair, the manager of the store, acknowledged conflicts in his examining trial testimony, with his testimony at trial. Adair also admitted he could not possibly identify any other person in the courtroom as the robber because appellant was the “only black male sitting here.” Defense counsel asked whether Adair’s “independent recollection of Mr. Bell [was] so strong that you could recognize him irregardless [sic] of the setting ... ?” but the trial court sustained the prosecutor’s objection that, “I don’t think there is a person on earth that can fairly answer that question.” Adair testified that his recollection of appellant was based on a three to four second observation.