Wood v. State

478 S.W.2d 513, 1972 Tex. Crim. App. LEXIS 2021

• Court: Court of Criminal Appeals of Texas
• Decided: April 5, 1972
• Docket: 44633
• Status: Published

Opinions

OPINION

ODOM, Judge.

This appeal is taken from a conviction for the offense of forgery. Punishment was assessed by the jury at five years confinement. (See also Wood v. State, Tex.Cr.App., 440 S.W.2d 640)

Three grounds of error are brought forth. In view of our disposition of the case, only one will be discussed.

By her second ground of error, appellant contends that prejudicial error was committed when the trial court allowed the state to impeach her as a witness with prior convictions which she claims are void. We agree that error was committed and that such error requires reversal.

After the state rested its case in chief at the guilt-innocence stage of the trial, and prior to appellant taking the stand in her own behalf, she requested the court to instruct the state not to refer to or allude to a 1958 Alabama felony conviction and a 1961 Louisiana felony conviction, since she had not been represented by counsel on either occasion and had been indigent.¹ After appellant testified out of the presence of the jury regarding these two convictions, the court overruled the motion in limine. She then took the stand in her own behalf and was cross-examined concerning the Louisiana and Alabama convictions. No records of these convictions were introduced.²

The right of an accused to counsel is a fundamental right which is essential to a fair trial. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). A conviction which is void under the holding in Gideon cannot be used for the purpose of enhancing punishment. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).

The rationale behind these decisions is that:

“The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer’s help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect the proceeding with the clear danger of convicting the innocent ...” Tehan v. United States ex rel. Shott, 382 U.S. 406, at 416, 86 S.Ct. 459, at 465, 15 L.Ed.2d 453, at 460 (1966).

A defendant who takes the stand to testify in his own behalf may be cross-examined and impeached in the same manner as other witnesses. However, to be used for impeachment, a prior conviction must be for a felony or a misdemeanor involving moral turpitude, must be final, and must have occurred at a time sufficiently recent to have some bearing on the present credibility of the witness. E. g., Webber v. State, Tex.Cr.App., 472 S.W.2d 136; Bustillos v. State, Tex.Cr.App., 464 S.W.2d 118, 119.

A conviction which is invalid under Gideon standards, because an accused was denied the aid of counsel, is so inherently defective that it has little bearing on the present credibility of a witness. Since the credibility of an accused is material to the determination of guilt or innocence, we can find no logical distinction between the use of such conviction to impeach and its use to prove guilt or enhance punishment. Loper v. Beto, 405 U.S. -, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); Tucker v. United States, 431 F.2d 1292 (9th Cir.1970), affirmed, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Gilday v. Scafati, 428 F.2d 1027 (1st Cir.1970), cert. denied, 400 U.S. 926, 91 S.Ct. 188, 27 L.Ed. 2d 186 (1970); Simmons v. State, Tex.Cr.App.,456 S.W.2d 66 (Onion, J., dissenting). Moreover, the original denial of the constitutional right to counsel is compounded whether the invalid conviction is used to impeach the accused or to enhance his punishment ; ³ and the accused’s right to testify is seriously impaired “if the price of testifying is the potential admission of invalid and possibly unreliable convictions which could not otherwise be admitted.” Gilday v. Scafati, supra, 428 F.2d at 1029.⁴ We therefore hold that Burgett prohibits the use of convictions obtained in violation of Gideon to impeach the credibility of the accused. Loper v. Beto, supra; Subilosky v. Moore, 443 F.2d 334 (1st Cir.1971); Tucker v. United States, supra; Gilday v. Scafati, supra; Spaulding v. State, 481 P.2d 389 (Alaska 1971); Subilosky v. Commonwealth, 265 N.E.2d 80 (Mass.1970); Johnson v. Maryland, 9 Md.App. 166, 263 A.2d 232 (1970), aff’d, 9 Md.App. 436, 265 A.2d 281 (1970); People v. Coffey, 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15 (1967). To the extent that Simmons v. State, supra, stands for the contrary proposition, that opinion is overruled.

Having stated the general rule does not necessarily dispose of the issue presented in the instant case. We must determine whether this rule requires reversal.

We are not confronted with a situation whether the invalid conviction should be admitted as an historical fact to impeach the accused’s prior testimony. See, United States ex rel. Walker v. Follette, 443 F.2d 167 (2d Cir.1971); Simmons v. State, supra (Morrison, J., concurring).⁵ In the instant case appellant admitted the historical fact of the convictions but asked that they not be used against her because she had been denied counsel.

Nor do we find that the holding of the United States Supreme Court in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), is applicable. The court in Harris upheld the use of a confession which did not meet the requirements of Miranda v. Arizona⁶ to rebut a specific false statement made by the accused during his direct testimony.⁷ Here the invalid prior conviction was offered solely “for its general tendency to discredit appellant’s character.” Howard v. Craven, 446 F.2d 586, 587 (9th Cir.1971).

Moreover, the reliability of the evidence is a distinguishing factor between the situation in Harris and that in the instant case. The court in Harris found that the exclusionary rule sufficiently effectuates the public policy behind that rule when it applies to the prosecution’s case in chief, since the evidence itself is not inherently unreliable. See, Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Here the evidence of prior conviction is inherently unreliable because of the danger that an innocent man who is without counsel might be wrongfully convicted. Tehan v. United States, supra. Compare Harris v. New York, supra, with Alesi v. Craven, 440 F.2d 975 (9th Cir.1971). See also, Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971).

Finally, we reject the state’s contention that said impeachment constitutes harmless error. The state utilized the prior convictions in its argument on guilt or innocence and in its argument on punishment. Further, the jury requested the records of the appellant’s testimony, particularly that part dealing with her prior convictions; and this request was honored. Therefore, under the record before us, we cannot say that the error was harmless.

The judgment is reversed and the cause remanded.

1 . She claimed that she was denied counsel on appeal from the 1958 conviction (however, compare Wood v. State, Tex.Cr.App., 440 S.W.2d 640) and that she was denied counsel at her trial in the 1961 conviction.

2 . The state does not dispute appellant’s contentions that she was denied counsel. In any event, since the presence of counsel cannot be presumed from a silent record under the holding in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 (1967), it would be incumbent upon the state to introduce the records if they were contending the contrary.

3 . This compounding of the original denial of constitutional rights was one of the reasons underlying the decision in Burgett.

4 . See also, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1985).

5 . In Follette, the accused took the stand on direct and stated that he had never previously been convicted of a felony. In Simmons, the accused filed a written motion for probation in which he swore that he had never been convicted of a felony.

6 . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

7 . In Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), the court stated that: “It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against the contradiction of his untruth.” It should be noted that, once the defendant “opens the door” through his own statements, lie should be aware that the horses are going to get loose. See e. g., United States v. Keilly, 445 F.2d 1285 (2d Cir.1971); United States v. Bray, 445 F.2d 178 (5th Cir.1971); United States v. Maddox, 444 F.2d 148 (2d Cir.1971); United States v. Milano, 443 F.2d 1022 (10th Cir.1971); Cannito v. Sigler, 321 F.Supp. 798 (D.Neb.1971); Durham v. Cox, 328 F.Supp. 1157 (D.Va.1971); Heartfield v. State, Tex.Cr.App., 470 S.W.2d 895; Pyeatt v. State, Tex.Cr.App., 462 S.W.2d 952. However, the state may not “set up” the situation for impeachment through cross-examination. Compare, Walder v. United States, supra, with Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925).