Johnson, Albert Gene v. State

• Court: Court of Appeals of Texas
• Decided: June 6, 2002
• Docket: 01-01-00288-CR
• Status: Published

Opinion

Opinion issued on June 6, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00288-CR

ALBERT GENE JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 853371

O P I N I O N

A jury found appellant, Albert Gene Johnson, guilty of aggravated assault. After appellant pled true to two enhancement paragraphs, the jury assessed punishment at 35 years. On appeal, appellant claims that (1) his right to confrontation was violated when the trial court refused to let his counsel impeach the complainant, Gary Cook, with his prior criminal record, and (2) the prosecutor's improper closing argument during the punishment stage requires a reversal of his conviction. We affirm.

Factual Background

On August 19, 2000, Monica Thomas and her three children were visiting her mother, Peggy Roots, at her apartment, along with appellant and his children. Thomas testified that during her visit, one of appellant's children said something to her oldest son, and appellant came up to her son and looked like he was about to fight him. Thomas testified that she pushed appellant back and told him to get out of her son's "face." Thomas then called the complainant, Gary Cook, who was her son's father, and told him about the confrontation. She then contacted the police.

After getting off the phone with Thomas, Cook asked his friend, Anthony Jones, to drive him to the apartment where Thomas was. When Cook arrived at the apartment complex, he talked to his son about the altercation, and then went into the apartment to confront appellant. After appellant and Cook had a heated verbal altercation, Peggy Roots asked both men to leave. As Cook was leaving the apartment, appellant said to Cook, "You are going to respect me."

A few minutes later, when Cook was attempting to leave the apartment complex, he heard his friend Jones yell, "Run." Cook testified that when he glanced back, he saw appellant coming out of his truck with something in his hand. Cook ran a few steps, heard a gun shot, and then realized that he had been shot.

Officer R.J. Robinson testified that when he pulled up to the entrance of the apartment complex, he heard a gunshot, and saw Cook running toward him. He observed that Cook had been shot on the right side of his head and immediately requested an ambulance. Officer Robinson entered the apartment complex, where he saw several children and adults yelling and screaming. He asked them where the shooter, was and they pointed to appellant's red pickup truck in the parking lot. Robinson proceeded to appellant's truck and saw appellant sitting with a shotgun in his lap. After Robinson arrested appellant, he recovered the shotgun and one spent round of ammunition.

Impeachment With Prior Criminal Record

In his first, second, and fifth points of error, appellant claims the trial court violated his right to confrontation under the United States and Texas Constitutions. ⁽¹⁾ U.S. Const. amend. VI; Tex. Const. art I, § 10. Specifically, appellant contends that the trial court abused its discretion by limiting his cross-examination of the complainant, Gary Cook, by excluding evidence of Cook's two prior felony convictions, which were more than 10 years old. Appellant argues that he should have been allowed to impeach Cook with his remote convictions under rule 609 of the Texas Rules of Evidence. Tex. R. Evid. 609(a), (b).

Whether to admit remote convictions under rule 609 lies within the trial court's discretion and depends on the facts and circumstance of each case. Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989); Jackson v. State, 50 S.W.3d 579, 591 (Tex. App.--Fort Worth 2001, pet. ref'd).

Rule 609 provides:

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude . . . and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.

(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

Tex. R. Evid. 609(a), (b).

In Hernandez v. State, this Court held that when evaluating a complaint about the admission or exclusion of a prior conviction, an appellate court has the following options:

(1) it may find that the prior conviction is not remote (less than 10 years old) and analyze its evidentiary impact under 609(a) and Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992);

(2) it may find that it is more than 10 years old but that subsequent convictions of felonies or misdemeanors involving moral turpitude remove the taint of its distance. Under that circumstance, the 609(a) standard is appropriate because the 'tacking' of the intervening convictions causes a conviction older than 10 years to be treated as not remote; or

(3) the court may find that the prior conviction is remote but that under 609(b) its probative value substantially outweighs its prejudicial effect.

976 S.W.2d 753, 755-56 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd).

As the proponent of the evidence, appellant was required to supply this court with a record that demonstrates why Cook's prior convictions are admissible. See Theus, 845 S.W.2d at 880 (holding that burden of proof is on party urging admission of prior conviction for impeachment). As previously discussed, under rule 609, before we can determine whether Cook's prior convictions were admissible, the record must demonstrate (1) the date of Cook's convictions and (2) when Cook was released from confinement for those convictions. See Tex. R. Evid. 609 (b). For purposes of our review, the later of these dates will determine which standard we apply to the trial court's decision to admit or exclude the evidence. See Tex. R. Evid. 609 (b); Hernandez, 976 S.W.2d at 755-56.

In this case, the record is silent regarding the date Cook was convicted or whether he received jail time for his prior convictions. Appellant did not make an offer of proof or introduce into evidence a pen packet that would establish the necessary dates for our review. Therefore, we cannot determine whether the trial court abused its discretion. See Hernandez, 976 S.W.2d at 755-56.

We overrule appellant's first, second, and fifth points of error.

Impeachment With Deferred Adjudication

In his third, fourth, and sixth points of error, appellant claims the trial court erred by not allowing him to impeach Cook with the fact that he was on deferred adjudication.

According to the record, Cook was indicted in August 2000 for possession of a controlled substance and placed on deferred adjudication. Before trial, appellant told the trial court that he wanted to impeach Cook by showing that he was on deferred adjudication. Appellant argued that "under 609, Judge, we're entitled for impeachment to cross-examine [Cook]" with his criminal record. The trial judge disagreed, and held that because Cook had not yet been found guilty, the evidence was inadmissible under rule 609 of the Texas rules of evidence.

As the circumstances described above demonstrate, appellant sought to utilize Cook's deferred adjudication status to impeach Cook's credibility generally via rule 609. Appellant never attempted to introduce the evidence, despite rule 609, by arguing that it purportedly exhibited a "vulnerable relationship" between Cook and the State and, therefore, constituted evidence of motive, bias, or interest on behalf of the State. ⁽²⁾ Instead, his argument at the trial court level was limited to admission via Rule 609, and for the purpose of impeaching Cook with his prior criminal record.

Yet, on appeal, appellant argues that the trial court erred because the evidence was admissible to show motive, bias, or interest in favor of the State, despite rule 609. In other words, appellant attempts to invoke the vulnerable relationship theory before this Court without having mentioned it below. Having failed to assert the theory below as a ground supporting admission of the evidence, we hold appellant waived these points of error for appellate review. Tex. R. App. P. 33.1(a); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App 1995) (holding grounds supporting an objection below must comport with the grounds asserted on appeal); Fletcher v. State, 902 S.W.2d 165, 167 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd) (same).

We overrule appellant third, fourth, and sixth points of error.

Improper Jury Argument

In his seventh point of error, appellant claims that because the prosecutor made improper remarks during the punishment phase, his conviction should be reversed in order to conduct a new punishment hearing.

In order to complain on appeal about an erroneous jury argument, or that an instruction to disregard could not have cured an erroneous jury argument, the appellant must show he objected and pursued his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding defendant's "right" not to be subjected to erroneous jury argument is one of those rights that is forfeited by a failure to object); Bias v. State, 937 S.W.2d 141, 144 (Tex. App.--Houston [1st Dist.] 1997, no pet.).

In this case, appellant never objected to any of the complained of arguments. Therefore, he waived this point of error. See Cockrell, 933 S.W.2d at 89.

Accordingly, we overrule appellant's seventh point of error.

Conclusion

We affirm the trial court's judgment.

Margaret Garner Mirabal

Justice

Panel consists of Justices Mirabal, Taft, and Price. ⁽³⁾

Do not publish. Tex. R. App. P. 47.4.

1. Because there is no meaningful distinction between the confrontation clauses in the United States and Texas Constitutions, we address appellant's points of error together.

See Lagrone v. State, 942 S.W.2d 602, 614 (Tex. Crim. App. 1997).

2. The "vulnerable relationship" concept was first addressed in

Carroll v. State, 916 S.W.2d 494 (Tex. Crim. App. 1996), and describes a circumstance in which the witness might be prone to testify in favor of the State in return for leniency with the witness's current criminal charges. If such circumstance exists, evidence of the same is admissible even though it does not involve a final conviction. Maxwell v. State, 48 S.W.3d 196, 199-200 (Tex. Crim. App. 2001); Moreno v. State, 22 S.W.3d 482 (Tex. Crim. App. 1999). In Maxwell, the court of criminal appeals held that evidence that would not be admissible under rule 609, because the conviction was neither final, i.e. deferred adjudication, a felony, nor one of moral turpitude, could be admissible if it illustrated the requisite vulnerable relationship. 48 S.W.3d at 199-200. Under Carroll, one attempting to gain the admission of evidence inadmissible under rule 609 must invoke the vulnerable relationship theory in a manner that reasonably informs the trial court of reliance upon that theory. Appellant did not do this.

3. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.