Castro v. State

651 S.W.2d 1, 1982 Tex. App. LEXIS 4693
CourtCourt of Appeals of Texas
DecidedJune 10, 1982
DocketNo. C14-81-821-CR
StatusPublished
Cited by5 cases

This text of 651 S.W.2d 1 (Castro 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
Castro v. State, 651 S.W.2d 1, 1982 Tex. App. LEXIS 4693 (Tex. Ct. App. 1982).

Opinion

MILLER, Justice.

Appellant was convicted by a jury of murder after a plea of not guilty. The trial court assessed punishment at fifteen (15) years confinement in the Texas Department of Corrections and appellant gave notice of appeal. We now reverse the judgment of the trial court because of the improper comments of the State’s attorney at trial. We hold the actions of the State during the prosecution of the case were of the kind to deprive the appellant of a fair and impartial trial, and that the court erred in not granting the timely motions for new trial.

Appellant was charged with committing a gun-shot murder in Galveston, Texas in the early morning of July 24, 1981. July Cross, the State’s primary witness, testified [2]*2she was sleeping with her boyfriend, Hershel Thompson, the deceased, on the living room sofa in her apartment. Ms. Cross testified she was awakened by a knock at her apartment door by a person identifying himself as “Albert.” She opened the door to find appellant, a neighbor, standing in the outer hall. According to her testimony, appellant asked her whose car was parked in his parking space. She responded it belonged to her boyfriend, whereupon appellant entered the living room, pulled a pistol, and fired one shot into the sleeping body of Hershel Thompson. Ms. Cross further testified that appellant then pulled Thompson to the floor and kicked him several times in the head and abdomen. After he had finished kicking Thompson, appellant reportedly told Ms. Cross to go and get help. When she returned to her apartment, appellant was gone and Thompson was dead.

In his second ground of error, appellant complains of certain improper questions by the prosecutor concerning a prior act of misconduct that had not been reduced to a conviction. During the guilt/innocence phase of trial, appellant called his girlfriend, Mary McCoy, to testify on his behalf. After establishing the length of time of the relationship, appellant’s counsel asked Ms. McCoy if she had ever known appellant to be a violent man. Ms. McCoy answered “no.” On cross-examination by the state, the following transpired:

Q Now, you have testified and you want this jury — you want them to believe that this defendant, Albert Castro has a non-violent personality; is that right?
A That’s right.
Q Isn’t it a fact that in 1961 he killed a young boy, age 19, by shooting him in the chest?
A I don’t know. I’m not from here. I’m from out of town.
Q Isn’t it a fact that he killed a boy at this time by the name of John Glenn, Jr.... on the date of September 29, 1961?

Appellant’s counsel timely objected, but his objection was overruled by the court. Later, at the close of the cross-examination, the prosecution asked Ms. McCoy the following question:

Q I have only got one last question for you and that is: How many free murders do you think somebody should be allowed...

Appellant’s counsel again objected. This time the court sustained the objection and instructed the jury to disregard the question. Appellant’s motion for mistrial, however, was denied.

The state admits appellant was never convicted for the alleged killing in 1961. In fact, the state never introduced any evidence of an arrest or a dismissal of a charge until the punishment phase. The first question before us, therefore, is whether the court erred in allowing the state to inquire into a specific act of misconduct that did not result in a conviction, or whether the line of questioning was within the proper realm of impeachment. The second issue presented is whether the state’s final question to Ms. McCoy was so improper and prejudicial that it was not cured by the court’s instruction to disregard.

The law is well established that charges of earlier offenses are inadmissible for impeachment purposes unless the charges resulted in final convictions for felony offenses or final convictions for misdemeanors involving moral turpitude, none of which are too remote. Shipman v. State, 604 S.W.2d 182 (Tex.Cr.App.1980); Trippell v. State, 535 S.W.2d 178 (Tex.Cr.App.1976); Reese v. State, 531 S.W.2d 638 (Tex.Cr.App.1976); Ochoa v. State, 481 S.W.2d 847 (Tex.Cr.App.1972). The state, however, maintains an exception to this rule applies to this case

when the witness, by his direct testimony, leaves a false impression of his “trouble” with the police. In this situation, it is legitimate to prove that the witness had been “in trouble” on occasions other than those about which he offered direct testimony.

Reese, 531 S.W.2d at 640; See: Ex Parte Carter, 621 S.W.2d 786 (Tex.Cr.App.1981). [3]*3The state argues that since appellant “opened the door” as to his non-violent nature, the state was permitted to inquire into the full extent of appellant’s prior troubles and characteristic for violence.

We disagree. We do not believe this exception applies to appellant’s situation because the state’s line of questioning was clearly improper. In the first instance, appellant was not testifying on his own behalf. Both Reese, supra, and Carter, supra, involved situations where a defendant personally took the stand and testified to his past record. In both cases the defendants were attempting to give a wrong impression to the jury, so the use of prior “troubles” for impeachment was proper. Here, appellant did not personally testify.

Second, Ms. McCoy testified that in the “two to four or five years” she had known appellant he was not violent. The state’s questions concerned an alleged event some 19 to 20 years earlier involving an occurrence too remote for Ms. McCoy to have any personal knowledge, or to fit within the rule. McClendon v. State, 509 S.W.2d 851 (Tex.Cr.App.1974). The reason for a remoteness limitation is because a remote offense is a poor indication of an accused’s present character. See: Miller v. State, 549 S.W.2d 402, 403 (Tex.Cr.App.1977); Bustillos v. State, 464 S.W.2d 118 (Tex.Cr.App.1971). In Penix v. State, 488 S.W.2d 86 (Tex.Cr.App.1972), the Court of Criminal Appeals in discussing a prior conviction, held:

Even though this court has never “undertaken to fix arbitrarily and absolutely a space of time which would characterize such testimony as too remote”, there seems to have developed a rule of thumb or guideline that such should not be admitted if the time lapse exceeds ten years.

Id. at 88. In Miller, supra, and McClendon, supra, twelve years was seen as too remote for cross-examination on a prior conviction.

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651 S.W.2d 1, 1982 Tex. App. LEXIS 4693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castro-v-state-texapp-1982.