Powell v. State

673 S.W.2d 403, 1984 Tex. App. LEXIS 5772
CourtCourt of Appeals of Texas
DecidedJune 28, 1984
DocketNo. 01-83-00438-CR
StatusPublished

This text of 673 S.W.2d 403 (Powell 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
Powell v. State, 673 S.W.2d 403, 1984 Tex. App. LEXIS 5772 (Tex. Ct. App. 1984).

Opinion

[404]*404OPINION

BULLOCK, Justice.

A jury convicted appellant of driving while intoxicated, and the trial court assessed his punishment at 12 days confinement and a fine of $350. Appellant brings two grounds of error on appeal.

In his first ground, appellant alleges that the trial court erred in admitting testimony from the arresting officer that appellant had refused a breathalyzer test. The relevant statute, Tex.Rev.Civ.Stat. art. 6701/-5, sec. 2,1 provided as follows:

If a person under arrest refuses, upon the request of a law enforcement officer, to submit to a chemical breath test designated by the law enforcement officer as provided in Section 1, none shall be given.. .. (emphasis added)

This court has previously held that a defendant’s refusal to submit to a breathalyzer test under the old statute may be used against him at trial. Parks v. State, 666 S.W.2d 597 (Tex.App.—Houston [1st Dist.] 1984, no pet.). Appellant’s first ground of error is overruled.

In his second ground of error, appellant alleges that the trial court erred in allowing the State to cross-examine him about several prior arrests. On direct examination, appellant’s counsel asked him why the details of his arrest were clear in his mind. He responded as follows:

Because of the situation. The arrest, me being arrested, it’s not something that occurs every day. I pay attention to something like that that happens to me.

On cross-examination, the prosecutor’s first questions were as follows:

Q. I believe you testified on direct that your being arrested doesn’t occur to you every day and therefore you really pay attention when it happens to you; right?
A. Yes, sir.
Q. Have you paid attention on the prior occasions when you were arrested?
A. Yes, sir, I have, tried to.
Q. Apparently you paid attention back around 1981 when—
DEFENSE COUNSEL: May we approach the Bench on this matter?
THE COURT: Let me see you up here just a minute.
(Whereupon an off-the-record discussion was held at the Bench.)
THE COURT: I am going to allow it.
DEFENSE COUNSEL: I would like to make an objection on the record to these future comments about prosecution outside the scope of this trial. We will object to any kind of continuing questions in this line and have a continuing objection on that matter, Your Honor.
THE COURT: All right. You understand my ruling, don’t you?
PROSECUTOR: I believe I understand your ruling, Judge, that you will allow me to go into any good faith or anything that I have a good faith belief in that this Defendant has been arrested at different times; is that correct?
THE COURT: Right.
PROSECUTOR: You have instructed me not to go into what he was arrested for, the results, or anything like that.
THE COURT: That’s right.
PROSECUTOR: I will abide by that. Thank you, sir.
Q. (By the Prosecutor) You say that these things really stand out because you aren’t arrested every day. I took it by that to mean this doesn’t happen to you very often. I will direct your attention back to 1975. Do those events stand out when you were arrested back in 1975?
A. They still do.
Q. Do they stand out in 1981 when you were arrested?
A. They certainly do.
Q. Did it stand out in ’83 when you were arrested, not for this case but for another case?
A. Yes, sir.
[405]*405Q. Also in 1983 after the case that we are trying today, did all of the events stand out on that date?
A. Yes, sir.
DEFENSE COUNSEL: Your Honor, on the record in the presence of the jury I would like to make an objection to that matter. This commentary by innuendo is totally outside the scope of this trial, totally prohibited by the Code of Criminal Procedure. I will object and ask you to strike it from the record and ask you to—
THE COURT: I will overrule the objection, Counsel. I believe your own client, from his own mouth, opened the door. That’s why I tried to let him understand that sometimes it’s not the volume of testimony but the quality and the caliber of the testimony. I believe he—
DEFENSE COUNSEL: I will except to the Court’s ruling but abide by it. (emphasis added)

An accused who takes the witness stand is subject to cross-examination and impeachment, but the State may not use a mere arrest to impeach the accused’s credibility unless the accused has made a blanket assertion to the effect that he has never been in trouble with the law. Bell v. State, 62C S.W.2d 116, 125 (Tex.Crim.App.1980) (op. on reh’g). The State argues that appellant did not preserve any error, because the objection was not specific enough to inform the trial court of the grounds of the objection. We disagree. Although the defense counsel did not use the words “extraneous offenses” or “improper impeachment” on the record, he did indicate that he was objecting to any questions concerning prosecutions for offenses that were not the subject of this trial.

We note that the trial court apparently granted the defense objection to the extent that it would not allow the prosecution to bring up the details of the extraneous offenses. The trial court commented that it believed appellant had “opened the door” to questions about the previous arrests, indicating that it would not otherwise have allowed impeachment by prior arrests. We must first determine if the trial court correctly found that appellant had invited these limited questions by his answer on direct examination.

In Nelson v. State, 503 S.W.2d 543 (Tex.Crim.App.1974), the accused testified to two previous convictions, saying that he had not been “in trouble” at any other times. The State was allowed to ask the defendant about prior arrests for 12 other offenses, since his testimony had led the jury to believe that he had only two offenses in his past. The court held that the defendant had “opened the door” for these questions.

In the case at bar, the State argues that appellant’s answer on direct that his arrest was “not something that happens every day” left the erroneous impression that he had never been arrested. Therefore, the State argues, it was allowed to rebut this erroneous impression with evidence of prior arrests. We again disagree with the State’s position. Appellant’s answer indicated that he had not been arrested frequently, but he made no blanket assertions of prior exemplary conduct, nor did he offer a partial list of prior offenses in an effort to mislead the jury.

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Related

Chapman v. California
386 U.S. 18 (Supreme Court, 1967)
Ruiz v. State
579 S.W.2d 206 (Court of Criminal Appeals of Texas, 1979)
Parks v. State
666 S.W.2d 597 (Court of Appeals of Texas, 1984)
Bell v. State
620 S.W.2d 116 (Court of Criminal Appeals of Texas, 1981)
Nelson v. State
503 S.W.2d 543 (Court of Criminal Appeals of Texas, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
673 S.W.2d 403, 1984 Tex. App. LEXIS 5772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-state-texapp-1984.