Montgomery v. State

704 S.W.2d 357
CourtCourt of Appeals of Texas
DecidedJune 28, 1985
DocketNo. 13-84-346-CR
StatusPublished

This text of 704 S.W.2d 357 (Montgomery 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
Montgomery v. State, 704 S.W.2d 357 (Tex. Ct. App. 1985).

Opinion

OPINION

NYE, Chief Justice.

A jury found appellant guilty of injury to a child. TEX.PENAL CODE ANN. § 22.04 (a)(1). The trial court assessed punishment at 50 years in the Texas Department of Corrections.

In his first ground of error, appellant contends that the trial court committed reversible error in allowing the State to question witnesses and appellant about the details of a prior rape conviction. The record shows that the rape conviction was first brought to the attention of the jury during the appellant’s cross examination of Debra Shepherd, appellant’s former girlfriend. Appellant’s counsel asked her if she was aware that appellant had been on parole following a Virginia rape conviction. Shepherd responded that she was aware of these matters.

On redirect and over objection, the State was allowed to question Shepherd about details of the rape conviction as related to her by appellant. The State argues on appeal that (1) appellant opened the door by asking Shepherd if there had ever been any signs of violence by appellant toward the child or her, and (2) that her answers to those questions left the false impression that there was nothing in her experience which would indicate that appellant was prone to be violent.

We disagree with the State’s position that the appellant opened the door to the admission of details of the prior conviction. Appellant’s questions were directed entirely to what the witness herself had observed of the appellant’s conduct. A fair reading of appellant’s questions shows no general inquiry into appellant’s propensity to be peaceful, and Shepherd’s answers do not address any matter concerning appellant’s nature outside of her relationship with appellant. We therefore hold that the [361]*361trial court erred in allowing the State to introduce the details of the prior rape.

We next turn to the question of whether the trial court’s error harmed appellant and should cause a reversal of the conviction. We have reviewed the portions of the record cited to us by appellant wherein the State asked questions dealing with the pri- or rape. The testimony of Debra Shepherd which was admitted over appellant’s objection reveals that appellant told Shepherd that he “didn’t do it, that he was in the Reserves or something and a bunch of them had all gone out and they met this girl, and that apparently this girl was pregnant or something and he took her home and then it was quite some while that she came up that Don had raped her and that it took a long time, that she wouldn’t come and identify him or something ...” She further testified over objection that appellant had told her that the woman was pregnant, that her husband or boyfriend had come home, and “that was the main reason why, you know, she went and filed charges or claimed that she was raped.”

Appellant testified on direct examination how he had pled guilty to rape in Virginia even though the alleged rape victim refused to appear in court and identify him.1 His testimony was consistent with and similar to that of Debra Shepherd.

In reviewing all of the above testimony, we are convinced that the portion of the testimony which was admitted over objection was not harmful to appellant. The improper admission of evidence will not be reversible error unless there is a reasonable probability that the complained of evidence might have contributed to the conviction. Esquivel v. State, 595 S.W.2d 516 (Tex.Crim.App.1980). If anything, this hearsay testimony showed appellant to be a victim of circumstance rather than a violent rapist. Moreover, in his brief appellant does not suggest how this testimony harmed him. We are unable to see how the jury’s determination of guilt may have been affected by the admission of these details. Appellant’s first ground of error is overruled.

In his second and third grounds of error appellant complains that the prosecutor persistently disregarded the trial court’s rulings thereby prejudicing the appellant in the presence of the jury. In his brief appellant cites only those pages where the trial court ruled that details of the prior rape conviction were admissible. We are unable to locate any portion of the record where the prosecutor persistently disregarded the trial court’s ruling or prejudiced the appellant in the jury’s presence. These grounds of error are overruled.

In his fourth ground of error appellant contends the trial court should have granted his motion for mistrial after the prosecutor asked appellant if he had ever told David Angelí, an acquaintance, that he killed a man. Appellant immediately objected to the prosecutor’s question. The objection was sustained and the jury was instructed to disregard the question. Appellant’s motion for mistrial was then overruled. The State cites us to Evans v. State, 542 S.W.2d 139 (Tex.Crim.App.1976). This case is not on point. In Evans, the reference to the extraneous offense was admitted through the answer of a witness in response to a proper question posed by the prosecution. In the present case, the State injected the extraneous offense through an improper question. Appellant also cites us to various cases which are not on point, referring us to cases where the prosecutor repeatedly asked improper questions, unlike the present case where only one reference was made to the alleged extraneous offense.

Generally, a conviction will not be reversed solely because an improper question was propounded to a witness where an [362]*362instruction to disregard is given except in extreme cases where the 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. We find the question, while improper, was not of such a character as to constitute such error. See Gonzales v. State, 685 S.W.2d 47 (Tex.Crim.App.1985). Appellant's fourth ground of error is overruled.

In his fifth and sixth grounds of error appellant complains of the trial court’s failure to include certain requested jury instructions. The basis for the requested instructions was appellant’s testimony that he struck the child but did not intend to cause serious bodily injury. Appellant testified that when he swatted the child he used just enough force to scare the child and perceived no risk of causing serious bodily injury. He explained that his swat caused the child to stumble into a table, thereby causing the severe injuries.

It is well settled that a defendant is entitled to an instruction on every issue raised by the evidence, whether produced by the State or the defendant, and whether it be strong, weak, unimpeached, or contradicted. Lugo v. State, 667 S.W.2d 621 (Tex.Crim.App.1984); Thompson v. State, 521 S.W.2d 621 (Tex.Crim.App.1974); Williams v. State, 680 S.W.2d 570 (Tex.App.—Corpus Christi 1984, pet. ref’d).

Appellant first complains that the trial court should have submitted an instruction to the jury on mistake of fact. TEX.PENAL CODE ANN. § 8.02 (Vernon 1974). Appellant relies on Beggs v. State,

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Related

Brown v. State
605 S.W.2d 572 (Court of Criminal Appeals of Texas, 1980)
Thompson v. State
521 S.W.2d 621 (Court of Criminal Appeals of Texas, 1974)
Esquivel v. State
595 S.W.2d 516 (Court of Criminal Appeals of Texas, 1980)
George v. State
681 S.W.2d 43 (Court of Criminal Appeals of Texas, 1984)
Maynard v. State
685 S.W.2d 60 (Court of Criminal Appeals of Texas, 1985)
Gonzales v. State
685 S.W.2d 47 (Court of Criminal Appeals of Texas, 1985)
Fields v. State
627 S.W.2d 714 (Court of Criminal Appeals of Texas, 1982)
Jones v. State
672 S.W.2d 798 (Court of Criminal Appeals of Texas, 1984)
Wallen v. State
667 S.W.2d 621 (Court of Appeals of Texas, 1984)
Anderson v. State
479 S.W.2d 57 (Court of Criminal Appeals of Texas, 1972)
Evans v. State
542 S.W.2d 139 (Court of Criminal Appeals of Texas, 1976)
Williams v. State
630 S.W.2d 640 (Court of Criminal Appeals of Texas, 1982)
McManus v. State
591 S.W.2d 505 (Court of Criminal Appeals of Texas, 1979)
Beggs v. State
597 S.W.2d 375 (Court of Criminal Appeals of Texas, 1980)
Turner v. State
641 S.W.2d 383 (Court of Appeals of Texas, 1982)
Williams v. State
680 S.W.2d 570 (Court of Appeals of Texas, 1984)

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Bluebook (online)
704 S.W.2d 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-state-texapp-1985.