Walker v. State

610 S.W.2d 481, 1980 Tex. Crim. App. LEXIS 1391

• Court: Court of Criminal Appeals of Texas
• Decided: October 8, 1980
• Docket: 63019
• Status: Published

Opinions

OPINION

CLINTON, Judge.

Appeal is taken from a conviction for the offense of murder wherein the jury, impaneled to set punishment upon appellant’s plea of guilty, assessed such punishment at confinement in the Texas Department of Corrections for a term of ninety nine years.

In his sole ground of error appellant contends that the trial court erred in refusing to grant a timely motion for a mistrial after the prosecutor asked a question which was so manifestly improper and prejudicial that the trial court’s instruction to the jury could not have cured the harm. Given the circumstances surrounding the asking of the question and its probable impact on the jury, we agree and now reverse the judgment below.

After finding appellant guilty on his plea of guilty, the trial court impaneled a jury to assess appellant’s punishment. At the outset of this hearing, the State introduced, without objection, its Exhibits 5 and 6, copies of the judgment and sentence, respectively, in Cause Number 8751, evidencing appellant’s final conviction for the felony offense of incest on March 19, 1975. Prior to the introduction of those two exhibits, defense counsel made an oral motion in limine¹ to prohibit the prosecution from mentioning or otherwise alluding to facts or details of any final conviction which the State would seek to introduce. The trial court granted this motion, specifically prohibiting the State from introducing a certified copy of the indictment in Cause Number 8751² and from alluding to facts relating to the prior final incest conviction.

Following admission of State’s Exhibits 5 and 6 the State rested.

One of appellant’s witnesses during this phase of the proceeding was Leona Green, appellant’s sister. She testified, inter alia, that appellant had had a nervous problem for the last twenty years as a result of an injury received while in the Army and that he had been hospitalized for this nervous condition on several occasions. The witness further noted that this condition would manifest itself by appellant’s becoming hysterical and going into crying spells which would necessitate his having to be taken to the emergency room at a hospital to receive a shot which would calm his nerves.

On cross examination, however, the following occurred:

Q: [By Mr. Goodwin]: You say he has been nervous for a number of years?

A: That’s right.

Q: Do your know whether or not he was nervous on March the 19th, 1975 whenever he committed the offense of incest with his daughter, was he nervous then, Mrs. Green?

Defense counsel immediately objected and moved for a mistrial; the trial court excused the jury. The thrust of appellant’s motion for a mistrial was that the prosecutor violated the trial court’s order respecting appellant’s motion in limine inasmuch as it revealed to the jury facts relating to his prior felony conviction, specifically, that the offense of incest had been committed with appellant’s daughter.³ The State’s response was, that although the judgment and sentence of the incest conviction had been admitted into evidence, no details of the offense had been placed before the jury. The colloquy between the respective attorneys and the trial court regarding appellant’s motion for mistrial sheds more light on the subject, particularly the State’s position:

MR. GOODWIN [Prosecutor]: I don’t think it matters, Judge. What does it matter. Sure, it is not going to be cured, the Judgment and Sentence is [sic] in evidence.

MR. ARNETT [Defense Counsel]: The fact it was with a child was not in evidence. It was not put in evidence. It is now before the jury.

MR. GOODWIN: Like, I say, that is details [sic] that is not details [sic] of the offense. What difference does it make if it was the grandmother of a child or whoever.

MR. CLARK [Defense Counsel]: Because you are not entitled to go into that.

MR. GOODWIN: I am not entitled to say was he nervous whenever he drug his little daughter in and ripped the clothing off her body and did it, no, Mr. Clark, I am not. But the nature of the fact it is incest, we know he didn’t rob a bank.

THE COURT: ... [0]f course, he has gone one step further. We still don’t have a name on that person. I assume people know what incest is.

MR. ARNETT: ... [Prejudice and inflammatory things about incest is not so much with somebody but with a child. That is what is going to be even more inflammatory is the reason [sic] we wanted it kept out.

THE COURT: Well, I don’t know what you are getting at.

MR. CLARK: What the age of the victim [sic] it was.

MR. GOODWIN: That is admissible, Judge.

THE COURT: The only thing that bothers me, I had a motion in limine.

MR. GOODWIN: As to details.

THE COURT: Well—

MR. GOODWIN: Let me give them some details if they want details. That is no details, [sic] the reading of the indictment. That is not details [sic].

THE COURT: Well — Details to the extent that I ruled on it and there is a motion in limine in the record with a court order saying to keep it out.

******

THE COURT: [B]ut what we are talking about here is a motion in limine which really the record indicates I have already rulled [sic].

The trial court eventually recalled the jury, instructed them not to consider the question posed by the prosecutor for any purposes and further cautioned that he would not even restate the question for fear that it would give undue emphasis to it. The trial court then overruled appellant’s motion for mistrial.⁴

Succinctly stated then appellant’s contention is that the prosecutor’s question not only violated the order in limine by revealing inflammatory facts of the final conviction in the presence of the jury, but also that the question was so manifestly improper as to suggest the impossibility of withdrawing the impression produced on their minds notwithstanding a curative instruction given by the court.

In introducing evidence of prior convictions as against an accused, the State is not permitted to allude to or in any way bring before the jury the fact surrounding the commission of the offense forming the basis for such a conviction. Lege v. State, 501 S.W.2d 880 (Tex.Cr.App.1973); Mullins v. State, 492 S.W.2d 277 (Tex.Cr.App.1973); Cain v. State, 468 S.W.2d 856 (Tex.Cr.App.1971). The prosecutor’s question violated this precept by informing the jury that the victim of the incest was a daughter of appellant — a fact that could not be gleaned from a perusal of the judgment and sentence which were before the jury. Moreover, improper injection of the details appears to have been done deliberately, considering a prior effort,⁵ the limine order, the colloquy and the later follow up questions.

We believe that the misconduct was so clearly calculated to inflame the minds of the jury and was of such character so as to suggest the impossibility of withdrawing the impression produced on their minds. Cavender v. State, 547 S.W.2d 601, 603 (Tex.Cr.App.1977); Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974); White v. State, 444 S.W.2d 921 (Tex.Cr.App.1969).

Given the probable impact of the matter on the minds of an average jury, see Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969), there is a reasonable probability that the jury’s assessment of punishment would have been different had the complained of material not been permitted to come before it.⁶ Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Indeed, the ninety nine year sentence assessed against one who admitted his guilt is no better proof of the harm suffered by appellant as a result of prosecutorial conduct which passed the line of tolerable imperfection.

For the error pointed out, the judgment of the trial court is reversed and the cause remanded.

1 . Appellant filed a pretrial motion in limine requesting that “should the prosecution contend at any time that the above matters [matters appellant wished to avoid reference to during the trial] are admissible that the prosecutors be ordered to ñrst approach the bench and make known the basis for such contention, thus allowing the defense an opportunity to rebut said contention before irreparable harm is done by allusion thereto before the trier of fact.” Such motion was granted. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

2 . Urging that the ruling is erroneous the State points to the tandem of Knox v. State, 487 S.W.2d 322 (Tex.Cr.App.1972) and Fairris v. State, 515 S.W.2d 921 (Tex.Cr.App.1974). The trial court cautiously did not admit the indictment in appellant’s incest conviction. We decline the State’s invitation to correct on appeal a ruling against the State.

3 .Appellant’s daughter testified that at the time of trial. May 22, 1978, she was eighteen years of age. The judgment and sentence reflect that they were entered on or about March 19, 1975 or some three years prior to this trial. Appellant’s daughter therefore, at the time of the incest conviction, was more likely than not fifteen years of age. This fact is of considerable import in considering the probable impact of the prosecutor’s question on the minds of the jury, infra.

4 . At the close of the colloquy outside the presence of the jury, the trial court again admonished, “I will instruct the district attorney that he intends to bring out anything like that again, approach the bench first.” Nevertheless, after covering other matters with the same witness, the prosecutor recalled, “And I believe it was your testimony that just what his state of mind might have been on March 19, 1975, you just don’t know what it was?” Furthermore, still with the same witness, appellant’s sister, for no other apparent purpose we can discern, he drew from her that appellant had seven daughters, five of whom were “his own.”

5 . A daughter of appellant who had married the deceased was the victim of his incest. Earlier, before the limine order was made, that widowed daughter was presented as a witness by the State. The prosecutor developed her background, relationship to various parties and where she had lived as a child and after her marriage. At one point he established that while in the eighth grade she had gone to live for about a year with an aunt in Louisiana and asked, “Why did you go to Louisiana to live with your aunt?” Smartly, the trial court sua sponte interrupted, summoned counsel to the bench and held an unreported discussion. When he resumed interrogation, the prosecutor moved on to another matter.

6 . The State’s contention that the instruction “cured the error, if any,” reminds us that:

“It is better to follow the rules than to try to undo what has been done. Otherwise stated, one cannot ‘unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.'.”

Dunn v. United States, 307 F.2d 883, 886 (5 Cir.1962) (Gewin, J.)