Cravens v. State

687 S.W.2d 748, 1985 Tex. Crim. App. LEXIS 1255
CourtCourt of Criminal Appeals of Texas
DecidedMarch 27, 1985
Docket366-84
StatusPublished
Cited by45 cases

This text of 687 S.W.2d 748 (Cravens v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cravens v. State, 687 S.W.2d 748, 1985 Tex. Crim. App. LEXIS 1255 (Tex. 1985).

Opinions

[749]*749OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted by a jury of two counts of rape of a child pursuant to former V.T.C.A. Penal Code, § 21.09.1 Punishment was assessed by the court at 12 years confinement in the Texas Department of Corrections. On appeal, the Houston Court of Appeals affirmed the conviction in a published opinion. Cravens v. State, 663 S.W.2d 668 (Tex.App.—Houston [1st Dist.] 1983).

We granted appellant’s petition for discretionary review to examine the continued viability of the holding of cases like Smith v. State, 86 Tex.Crim. 455, 217 S.W. 154 (1919), and Feather v. State, 169 Tex.Crim. 334, 333 S.W.2d 851 (1960), which held that for purposes of aiding the factfinder’s credibility determination, a female witness may be asked on cross-examination whether she is a “common prostitute.” The nexus between truthtelling and this particular occupation was first expounded upon by Judge Henderson in McCray v. State, 38 Tex. Crim. 609, 44 S.W. 170 (1898). Judge Henderson stated that:

“In common experience, it is known that persons who are so morally degraded as to ply their vocation as common prostitutes are not on a plane with the mass of people who follow legitimate and honorable vocations, in the matter of integrity. As a general rule, they are no more capable of telling the truth than one who has been convicted of a felony, or of some misdemeanor involving moral turpitude, and they are not more worthy of belief than such a one.”

Twenty years later in Smith, supra, this Court held that it was proper for a defense witness to be asked on cross-examination if she is a common prostitute. Citing Smith, supra, the Court in Feather, supra, allowed the same question of a defense witness upon cross-examination. Feather, however, expanded upon this by holding that “[t]his is so only where the question is asked in good faith and an affirmative answer is expected.”

Also relied upon in Feather, supra, is Myers v. State, 149 Tex.Crim. 301, 194 S.W.2d 91 (1946), which held that ordinarily a witness may be asked their occupation and that a “witness may be asked, upon cross-examination, if she is a common prostitute” but cannot be impeached upon the answer given.2 Further, we held that “[a] witness may not be impeached by proof of specific acts of misconduct which have not eventuated into an indictment or conviction.” This limitation has been basically codified by our Legislature in Art. 38.29, V.A.C.C.P.3

The court of appeals, in its opinion in this case, dismissed appellant’s complaint stating that “[i]t is well established that a witness may be asked on cross-examination if she is a common prostitute.” We believe that since this “impeachment” practice was justified solely by the common experience or mores of the day in the 1890’s, and since the Legislature has since seen fit to codify the prohibition against impeachment by pri- [750]*750or acts of misconduct,4 a reanalysis is in order.

First we must define the nature and scope of our inquiry. This is not a question of simple impeachment by proof of prior acts of misconduct; to wit, prostitution. If it were, a simple reference to Art. 38.29, V.A.C.C.P., would dispose of the matter. Rather, this query concerns the interrelationship with an entirely different eviden-tiary rule of admissibility that, in this instance, accomplishes the same purpose of impeachment. That rule allows the admissibility of testimony concerning a witness’ occupation in order to aid the trier of fact. Germane to the case at hand, Yeager v. State, 96 Tex.Crim. 124, 256 S.W. 914 (Tex.Cr.App.1923), interpreted the rule as follows:

“We have also held that as affecting her credit a female witness may be asked if she is not a common prostitute [citing McCray, supra, and other cases]. As we understand it, this latter character of cross-examination is permissible, not upon the ground that isolated acts of immoral conduct may be shown to impeach a witness, for proof of such isolated acts is inhibited [sic], but upon the ground that the history, occupation, etc. of a witness are always legitimate subjects of investigation. Underhill’s Cr. Evidence (3rd Ed.), § 387 at 915.” (Emphasis supplied)

When the occupation is reputable, it as-sumedly adds to a witness’ credibility. Contra, when the occupation is not so reputable in the eyes of the trier of fact, it detracts from credibility just as true impeachment evidence does. Indeed, this court has often referred to this testimony as “impeachment,” thus adding to the confusion that is perpetuated in the concurring opinion.

Our inquiry, then, is whether the occupation of a witness is so probative of his or her credibility as to outweigh any prejudicial effect that occupation might simultaneously engender by its revelation. In general, “[qjuestions as to the place of residence and occupation of the witness, and the like, may be asked for the purpose of identifying him and placing before the jury facts from which they may judge of his standing and the weight to be given his testimony.” Thus, an inquiry into a witness’ occupation is probative enough of credibility to be admissible. 37 Tex.Jur.3d, Evidence, § 666 (1984).

A question as to the occupation at hand — prostitution—deserves special handling, however, because it de facto reveals prior acts of misconduct pursuant to V.T. C.A. Penal Code, § 43.02, evidence of which is prohibited by Art. 38.29, supra. No other “occupation” which would de facto reveal acts of misconduct, i.e., common loiterer, common burglar, common criminal, etc., has a rule of admissibility similar to the one in question.5 As discussed earlier, un[751]*751der Art. 38.29, supra, the general rule regarding impeachment of witnesses is that a witness, by testifying, places his credibility in issue, and the opposing party may seek to impeach such credibility by proof that the witness has been convicted, of a felony offense or a misdemeanor involving moral turpitude.

On balance then, when determining the credibility of a witness is the issue, whatever probative value knowledge that the witness is a common prostitute has is outweighed by the legislatively mandated prohibition against impeachment by prior acts of misconduct. To allow such a question for this purpose, over objection, is error. To the extent they are in conflict, the McCray line of cases, including Smith, Feather, Myers, supra and Sanford v. State, 120 Tex.Crim. 249, 46 S.W.2d 307 (1932), are overruled.

Turning now to the case at bar, the complainant was the thirteen year old adopted daughter of appellant. Complainant’s mother and appellant were divorced and appellant had remarried. Complainant continued to visit appellant and spent alternate weekends with him and his present wife, Cathy Cravens, and their family.

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Bluebook (online)
687 S.W.2d 748, 1985 Tex. Crim. App. LEXIS 1255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cravens-v-state-texcrimapp-1985.