Gonzalez Quiroz v. State

753 S.W.2d 230, 1988 Tex. App. LEXIS 1251, 1988 WL 54409
CourtCourt of Appeals of Texas
DecidedJune 2, 1988
DocketNo. C14-87-654-CR
StatusPublished

This text of 753 S.W.2d 230 (Gonzalez Quiroz 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
Gonzalez Quiroz v. State, 753 S.W.2d 230, 1988 Tex. App. LEXIS 1251, 1988 WL 54409 (Tex. Ct. App. 1988).

Opinion

OPINION

SEARS, Justice.

This is an appeal from a conviction for the offense of injury to a child. Appellant was found guilty by a jury of intentionally or knowingly engaging in conduct that caused serious bodily injury to a child. The trial court assessed Appellant’s punishment at confinement for life in the Texas Department of Corrections. We affirm.

Appellant asserts five points of error. In his first four points of error Appellant contends the trial court erred in overruling his objections and permitting the State to cross-examine Appellant as to whether he had previously been convicted of a felony or misdemeanor involving moral turpitude, and specifically, whether he had been convicted of theft in cause number 560,785. Appellant asserts that the State violated the court’s ruling on Appellant’s Motion in Limine. Appellant also contends that in a pretrial Motion for Discovery, Production and Inspection of Evidence, he specifically requested production of Appellant’s prior criminal record and that the State inform him of the offenses it intended to use against him. He contends there “is nothing in the record” to show that the State complied with this request. Appellant further contends that the trial court, abused its discretion in permitting the State to elicit testimony regarding an extraneous offense.

Hie record reflects that during the guilt-innocence phase of the trial the prosecutor, Ms. Derbyshire, cross-examined Appellant as follows:

Q: Have you ever been convicted of a felony or misdemeanor involving moral turpitude?
A: Ma’am?
[232]*232Q: Have you ever been convicted of a felony or misdemeanor involving moral turpitude?
A: You would have to explain that to me.
Q: Have you ever been convicted of lying, cheating or stealing?
A: No ma’am.
Q: No?

Ms. Derbyshire: May we approach the bench, your Honor?

A discussion was then held at the bench and outside the presence of the jury. Whatever was requested or discussed was not recorded. The State then continued:

Q: Are you denying in cause 560,785 you were convicted of an offense?

Mr. Martinez: [Defense Counsel] I object to introducing an extraneous offense that has not been laid down. The predicate is not in. I would object on those grounds.

The Court: Overruled.

Mr. Martinez: Exception.

By Ms. Derbyshire:

Q: Are you denying that you are the same person that was convicted in cause number 560,785?
A: Convicted of what?
Q: Of theft?
A: No ma’am.
Q: You are denying that is not true?
A: No, I mean I am not saying I ever got convicted.
Q: So it’s not you? You are under oath.
A: The only time that I ever got a misdemeanor was for carrying a weapon.
Q: Well, I wasn’t going to go into that.
A: That is the only time I know of. I pleaded guilty.
Q: Are you denying the theft?
A: No ma’am, I was never convicted of theft.
Q: You are denying it?
A: I am not denying it. I am telling you I was never convicted of theft.

No further effort at impeachment was made by the State and no evidence of the conviction was offered.

We note initially that the objection at trial was based on “predicate” while the points of error raised on appeal concern improper impeachment and a violation of a Motion in Limine and Motion for Discovery. Where the objection made in the trial court is not the same as that urged on appeal, nothing is preserved for review. Bynum v. State, 731 S.W.2d 661, 663 (Tex.App.—Houston [14th dist.] 1987, no pet.). Also, Appellant’s Motion in Limine, requesting that the State not be allowed to go into prior convictions without first obtaining a ruling on the matter outside the jury’s presence, was never ruled on by the trial court. Appellant directs our attention to a docket sheet notation indicating that his Motion in Limine was granted. However, the corresponding portion of the statement of facts reveals that the motion granted by the court concerned discussion of the punishment range during the trial:

[MR. MARTINEZ]: The only two motions that I have that I want to consider is a confession my client made after his arrest. He made statements. And that is the only one, and a motion in limine that I have filed.
THE COURT: Okay. We will take up the motion to suppress at the time, and I will instruct the State not to offer it until such time as the jury has been withdrawn and we have a hearing to determine its admissibility.
MR. MARTINEZ: Then I have a motion in limine on several items that you might want to go over.
THE COURT: What is it?
MR. MARTINEZ: It has to do with the range of punishment, that it not be discussed at any time during the trial.
THE COURT: We have already been through that. That is handled. What else?
MR. MARTINEZ: That is it. Just the confession.

Appellant has not preserved error because the only item discussed with the court was punishment. If Appellant wanted the court to rule on other issues in the Motion in Limine, he should have brought them to the attention of the court. Failure [233]*233to do so waives any right to assert error on appeal.

Even if the issue had been properly preserved, we find no error. A defendant who chooses to waive his privilege against self-incrimination by voluntarily taking the witness stand is generally subject to the same rules as any other witness. Except where some statute forbids certain matters to be used against him, a defendant may be contradicted, impeached, made to give evidence against himself, cross-examined as to new matters and treated in every respect as any other witness. Bowden v. State, 628 S.W.2d 782, 788 (Tex.Crim.App.1982); Bell v. State, 620 S.W.2d 116, 124 (Tex.Crim.App.1981) (on rehearing). A defendant who elects to testify places his credibility in issue and may be impeached by proof of a prior final felony conviction or a misdemeanor conviction involving moral turpitude. Hammett v. State, 713 S.W.2d 102, 105 (Tex.Crim.App.1986); Bowden v. State, 628 S.W.2d at 788. A misdemeanor conviction for theft involves moral turpitude and may be used for impeachment purposes. Milligan v. State, 554 S.W.2d 192, 196 (Tex.Crim.App.1977); Poore v. State,

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Related

Milligan v. State
554 S.W.2d 192 (Court of Criminal Appeals of Texas, 1977)
Bynum v. State
731 S.W.2d 661 (Court of Appeals of Texas, 1987)
Beck v. State
573 S.W.2d 786 (Court of Criminal Appeals of Texas, 1978)
Bowden v. State
628 S.W.2d 782 (Court of Criminal Appeals of Texas, 1982)
Brown v. State
696 S.W.2d 913 (Court of Criminal Appeals of Texas, 1985)
Poore v. State
524 S.W.2d 294 (Court of Criminal Appeals of Texas, 1975)
Burdine v. State
719 S.W.2d 309 (Court of Criminal Appeals of Texas, 1986)
Bell v. State
620 S.W.2d 116 (Court of Criminal Appeals of Texas, 1981)
Kirvin v. State
575 S.W.2d 301 (Court of Criminal Appeals of Texas, 1978)
Hammett v. State
713 S.W.2d 102 (Court of Criminal Appeals of Texas, 1986)
Bullard v. State
706 S.W.2d 329 (Court of Appeals of Texas, 1986)

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Bluebook (online)
753 S.W.2d 230, 1988 Tex. App. LEXIS 1251, 1988 WL 54409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-quiroz-v-state-texapp-1988.