Hunter v. State

640 S.W.2d 656, 1982 Tex. App. LEXIS 5001

• Court: Court of Appeals of Texas
• Decided: May 26, 1982
• Docket: 08-81-00016-CR
• Status: Published

Opinions

OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is an appeal from a conviction for involuntary manslaughter. The jury assessed punishment at nine years confinement. We reverse and remand.

The death arose out of a two-car collision on June 29, 1979, in El Paso, Texas. Testimony revealed that Appellant drove his vehicle through a stop sign, striking the complainant’s vehicle and causing his death. Appellant’s appearance immediately after the accident indicated that he had been operating his vehicle while intoxicated. This conclusion was supported by the results of a breathalyzer test administered three hours later.

At punishment, the State introduced evidence that on January 13, 1978, Appellant entered a plea of guilty to an indictment for burglary. Adjudication of guilt was deferred under the provisions of Code of Criminal Procedure Article 42.12, Section 3d. Appellant was placed on probation for seven years. The State stipulated that the probation was revoked, a finding of guilt entered, and a sentence of three years confinement imposed on September 25, 1979. Notices of appeal as to the burglary and as to the revocation were timely filed on October 1, 1979. The appeals were pending at the time of this trial.

In his first ground of error, Appellant contends that the prosecutor’s final argument at the guilt-innocence stage contained improper comments on his failure to testify. The complaint is without merit.

The argument is to be viewed in terms of its probable effect on the jury. In order to necessitate reversal, the comment must be in direct reference to the absence of the defendant’s testimony, or in light of the evidence and arguments, must necessarily relate to his failure to testify. Annis v. State, 578 S.W.2d 406, 408-409 (Tex.Cr.App.1979); Wright v. State, 582 S.W.2d 845, 847 (Tex.Cr.App.1979); Griffin v. State, 554 S.W.2d 688, 690-691 (Tex.Cr.App.1977).

Comments on the failure of the defense to produce certain evidence will not constitute a comment on failure to testify if the record discloses that such evidence could have been produced through the testimony of witnesses other than the defendant. Hargett v. State, 534 S.W.2d 909, 911-912 (Tex.Cr.App.1976); Nowlin v. State, 507 S.W.2d 534, 536-537 (Tex.Cr.App.1974); Gorman v. State, 480 S.W.2d 188, 190 (Tex.Cr.App.1972).

An examination of the record reveals that the prosecutor merely asked the jury to assess the evidence presented and consider the evidence not produced in light of the Appellant’s opening statement. At the outset of trial, the Appellant’s counsel told the jury that she would attempt to show through both State and defense witnesses that there was no stop sign requiring Appellant to stop at the intersection, that the deceased ran a stop sign and struck the Appellant’s vehicle, and that the victim died as a result of his own negligence. All of the defensive allegations contained in the opening statement, and referred to in the prosecutor’s final argument, were matters which could have been testified to by witnesses other than the Appellant. The State’s witnesses, as well as two witnesses called by the defense, simply did not bear out the defense’s theory. Arresting Officer Armando Alvarez testified that there were various other potential witnesses interviewed at the scene. These would have also been subject to subpoena.

As a response to the Appellant’s opening assertions and a comment on his failure to support them by testimony other than his own, the comments by the prosecutor did not constitute an improper reference to the Appellant’s failure to testify. Ground of Error No. One is overruled.

Ground of Error No. Two challenges the admissibility of the evidence of Appellant’s prior conviction for burglary. This contention is correct. The evidence was beyond the scope of prior criminal records admissible at punishment under the provisions of Article 37.07, Section 3(a) of the Code of Criminal Procedure. Such evidence is limited to final convictions from courts of record, probated or suspended sentences that occurred prior to trial, and final convictions material to the offense charged.

Upon a finding that an individual granted deferred adjudication probation has violated a condition of his probation, the trial court may proceed to adjudicate his guilt of the original offense.

After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.

Tex.Code Crim.Pro.Ann. Article 42.12, Section 3d(b).

Appellant’s timely appeals on the merits of his burglary indictment and the revocation of his probation removed that proceeding from the probated or suspended sentence category of Article 87.07. The probated or suspended sentence history made admissible under Article 37.07 contemplates a sentence which is still in effect and has not been revoked or one which has been successfully completed by the probationer. Once a probated or suspended sentence has been revoked, a final conviction is necessary for its admissibility at the punishment phase of a trial for some other offense. This would necessitate either the absence of an appeal from the revocation or an appellate mandate, if an appeal were filed.

None of the cases cited by the State support the admissibility of this evidence. Following revocation and timely notice of appeal, Appellant stood in the same posture as one who had never been placed on probation and whose conviction was not final at the time of his subsequent trial.

In light of the fact that the jury assessed nine-tenths of the maximum sentence for involuntary manslaughter, it cannot be said that he was not harmed by the erroneous admission of this evidence. Ground of Error No. Two is sustained.

The conviction is reversed and the cause remanded for new trial.