Gonzales v. State

685 S.W.2d 47, 1985 Tex. Crim. App. LEXIS 1205
CourtCourt of Criminal Appeals of Texas
DecidedJanuary 23, 1985
Docket310-84
StatusPublished
Cited by171 cases

This text of 685 S.W.2d 47 (Gonzales 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
Gonzales v. State, 685 S.W.2d 47, 1985 Tex. Crim. App. LEXIS 1205 (Tex. 1985).

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This is an appeal from a conviction for delivery of marihuana of more than one-fourth ounce. Punishment, enhanced by one prior felony conviction alleged and [48]*48proved, was assessed by the jury at 11 years in the Department of Corrections.

Appellant perfected an appeal to the Austin Court of Appeals. The cause was transferred to the Beaumont Court of Appeals by order of the Supreme Court of Texas.

The Beaumont Court of Appeals sustained appellant’s first ground of error holding the trial court erred in overruling his motion for mistrial based on the prosecution’s introduction of an arrest of the appellant which did not result in a final conviction. The conviction was reversed. Gonzales v. State (Tex.App. No. 09-83-109 CR—Beaumont 1984).

The State in its petition for discretionary review urged that the error, if any, was not reversible error because the court sustained the objection to the question, the question was not answered, and the jury was instructed to disregard the question. We granted the State’s petition to determine the correctness of the decision of the Court of Appeals.

Appellant’s first ground of error states: “The Trial Court erred in denying Appellant’s Motion for Mistrial as a result of the prosecution’s introduction of arrests of the appellant which did not result in final conviction.” (Emphasis supplied.)

The mistrial motion was made at the penalty stage of the trial. At the commencement of that phase of the trial the State waived and abandoned the prior marihuana possession conviction in Guadalupe County alleged in the second paragraph of the indictment for the enhancement of punishment and proceeded on the third paragraph of the indictment alleging a prior 1977 marihuana possession conviction in Gonzales County for enhancement of punishment. Immediately thereafter the parties stipulated appellant was the same person convicted in the Gonzales County case and also the same person convicted in the Guadalupe County case. The pen packets from said convictions were introduced without objection to support the third paragraph of the indictment and to prove appellant’s “prior criminal record” under Article 37.07, Y.A.C.C.P.

Subsequently appellant called his wife as a witness. She testified as to her 12-year marriage, the three children, that appellant was a good father, a good provider, etc., but acknowledged he had been to the penitentiary for marihuana possession. On cross-examination Mrs. Gonzales was asked about appellant’s convictions in Guadalupe and Gonzales Counties. She wasn’t sure, guessed that whatever was on “the paper” was correct.

On re-direct appellant’s counsel inquired:

“Q. Mrs. Gonzales, during the 12 years you’ve been married, has Rufino been, to your knowledge, ever charged with anything other than the case that we’ve tried today, with just those two possessions of marijuana with — I’m sorry. Let me rephrase it. Has he ever been convicted of anything other than those two possessions of marijuana?
“A. That’s all I know about.” (Emphasis supplied.)

On re-cross-examination the prosecutor asked if she hadn’t testified on direct examination she was only aware of the prior offense for which appellant went to the penitentiary and “this one” as the only offenses with which he had been charged. Upon objection “That wasn’t the answer to my specific question,” the prosecutor agreed to rephrase the question. The record then reflects:

“Q. Isn’t it a fact that he was charged on the 4th day of March of 1978 with delivering to Ronald Green a quantity of marijuana of over one fourth of an ounce?
“A. That he was what, convicted?”

The jury was then removed at appellant’s request. His counsel stated that he had rephrased his question on re-direct, and asked about convictions, not charges. He objected to the State’s question as interjecting an extraneous offense for which there was no conviction. The prosecutor responded he felt sure appellant’s counsel had asked about charges. The court reporter read his notes as to the question [49]*49asked on re-direct examination. The prosecutor complained about the manner in which the question had been asked on re-direct, but re-withdrew his question on recross which had not been answered.1 The appellant asked for a “limiting instruction” and moved for a mistrial. The court agreed to give the “limiting instruction,” but denied the mistrial motion. When the jury returned, the court instructed the jurors to disregard the last question of the prosecutor and the answer, if any, and not to consider them for any purpose. Mrs. Gonzales was not interrogated further.

It is here observed that at no time did appellant call the court’s attention to the order granting his motion in limine, and object to the question on the basis of a violation thereof, nor did he use it as the basis for his motion for a mistrial.

The question which presents itself is whether the attempt here by the State to introduce evidence of a “charge” without a showing of a final conviction could be cured by the court’s instruction to the jury to disregard. The State concedes the question was improper, but calls attention to the circumstances under which it was asked and withdrawn without being answered.

In White v. State, 444 S.W.2d 921 (Tex.Cr.App.1969), this Court wrote:

“An error in asking an improper question or in admitting improper testimony may be generally cured or rendered harmless by a withdrawal of such testimony and an instruction to disregard the same except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Wheeler v. State, Tex.Cr.App., 413 S.W.2d 705, 707; 5 Tex.Jur.2d, Sec. 437; McCormick and Ray, Texas Law of Evidence, Vol. 1, Sec. 29.”

See also Carey v. State, 537 S.W.2d 757, 759 (Tex.Cr.App.1976); Lovilotte v. State, 550 S.W.2d 75 (Tex.Cr.App.1977); Maxwell v. State, 595 S.W.2d 126 (Tex.Cr.App.1980); Yarbrough v. State, 617 S.W.2d 221 (Tex.Cr.App.1981); Lopez v. State, 630 S.W.2d 936 (Tex.Cr.App.1982).2

In determining whether a jury instruction is sufficient to cure the error, the facts of each particular case must be noted. See Moffett v. State, 555 S.W.2d 437 (Tex.Cr.App.1977). As earlier observed, the improper question was never answered, the question was withdrawn and the jury was instructed to disregard. Did the mere asking of the question constitute reversible error? Courts rarely reverse a conviction of a crime solely because an improper question was asked. To cause a reversal the question must be obviously harmful to the defendant. Pearce v. State,

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Bluebook (online)
685 S.W.2d 47, 1985 Tex. Crim. App. LEXIS 1205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzales-v-state-texcrimapp-1985.