Ex Parte Carter

621 S.W.2d 786, 1981 Tex. Crim. App. LEXIS 1145

Opinions

OPINION

TOM G. DAVIS, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

Petitioner was convicted of robbery by assault on February 20, 1973. Punishment, enhanced by a prior conviction, was assessed at life. The conviction was affirmed on appeal in Garter v. State, 550 S.W.2d 282 (Tex.Cr.App.). One of the grounds of error advanced and rejected in that appeal, was that the court had erred in allowing petitioner to be impeached with evidence showing that he had been arrested in thirteen felony cases which had not resulted in convictions. Petitioner now contends the Court was in error with respect to the impeachment ground of error. He points to our subsequent decision in Shipman v. State, 604 S.W.2d 182 (Tex.Cr.App.), in which Carter v. State, supra, was overruled.

The rationale employed by the Court in petitioner’s direct appeal was erroneous to the extent that it was held that misleading statements made by the defendant on cross-examination with regard to prior trouble with the law may be impeached with extraneous arrests. Carter v. State, supra at 284. Such a holding was properly overruled in Shipman v. State, supra. However, a review of the record in petitioner’s direct appeal reflects that the correct result was reached on appeal. It is therefore unnecessary to reach the question of whether the issue presented here is an appropriate subject for collateral attack. Through his direct testimony at the time of his trial, petitioner gave a false impression of his criminal record.

On direct examination, petitioner testified as follows:

“Q. . . . Are you telling this jury that you’re as clean as the driven snow and that you have never done anything wrong or that you have never been in trouble?

“A. No, I’m not saying that.”

Following this question and answer, counsel proposed to “get specific.” Petitioner then testified that he had previously pled guilty to a charge of robbery by assault in 1967 and received a five year probated sentence. Petitioner related that he pled guilty to a second robbery charge in 1969 and received a sentence in the Texas Department of Corrections. Counsel then stated that he was “going to get into something that the District Attorney could not get into.” Petitioner then testified that on February 23, 1973, he was arrested on a charge of burglary in San Antonio. Counsel then questioned petitioner concerning a pending theft indictment for an offense alleged to have been committed on July 10, 1973. With regard to the theft charge, petitioner testified: “Yes, sir. I made that crime, too.” Finally, petitioner was asked the following questions:

“Q. And you know with your record what’s going to happen to you. When you do that, you’ll serve time, right?

“A. Yes, sir.

“Q. So you’re not saying you’re clean, but you’ve done some things and you are willing to admit to those, correct?

“A. Yes, sir. I am willing to admit to the crime that I have committed.” (Emphasis supplied.)

After petitioner testified, he called Daniel Sanchez, Jr., an identification officer with the Bexar County Sheriff’s Department. Sanchez was questioned relative to booking records maintained at the county jail and petitioner’s incarceration on February 23, 1973. On cross-examination, over objection, the prosecutor questioned Sanchez concerning the number of times petitioner had been arrested and booked into jail. Sanchez was permitted to state that petitioner had been booked on thirteen occasions and the reason for each of those incarcerations.

In Reese v. State, 531 S.W.2d 638 (Tex.Cr.App.), the defendant contended that the court erred in allowing the prosecutor to adduce before the jury evidence of an extraneous offense. The Court rejected the contention after stating that the defendant’s direct testimony had created a false impression with the jury as to the extent of his previous “trouble with the law.” The Court stated as follows:

“Generally, charges of offenses are inadmissible for impeachment purposes unless the charges result in final convictions for felony offenses or final convictions involving moral turpitude, none of which are too remote. Ochoa v. State, Tex.Cr.App., 481 S.W.2d 847. An exception arises 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. Nelson v. State, Tex.Cr.App., 503 S.W.2d 543; Ochoa v. State, supra.” Id. at 640.

In the instant case, petitioner by his direct testimony admitted that he had previously been in trouble. Upon counsel’s urging to “get specific,” petitioner admitted to two prior robbery convictions. Petitioner then testified to his arrests on two extraneous offenses which had not resulted in convictions. Counsel then concluded this area of inquiry with a question framed in terms of a “record” and petitioner’s willingness “to admit to the crime that I have committed.”

Petitioner’s direct testimony conveyed the distinct impression that his two prior convictions and two prior arrests constituted his entire “record,” including convictions and arrests. The tenor of petitioner’s direct testimony was that, except for those four instances, his “record” was clean.¹ Petitioner having “opened the door” to his “record” and presented a false impression of same is in no position to complain of the extraneous arrests presented by the State in an effort to correct that false impression.

While the rationale employed in petitioner’s direct appeal was erroneous, the result of that appeal based on the record was correct. The relief sought is denied.

It is so ordered.

Footnotes

1

. Petitioner further testified that had he participated in the instant offense, involving the theft of $100,000.00 worth of diamonds, he would not have been involved in the pending theft charge, nor would he have waited four days to make bond on the pending burglary charge. While such testimony was a defensive theory to the instant charge, it nevertheless reflected petitioner’s record and was clearly an effort to present the extent of his prior criminal involvement.