Zillender v. State

557 S.W.2d 515, 1977 Tex. Crim. App. LEXIS 1315

• Court: Court of Criminal Appeals of Texas
• Decided: November 9, 1977
• Docket: 52942
• Status: Published

Opinions

OPINION

ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge.

On original submission, the appellant asserted that the trial court erred in overruling his objection to the use of a prior probated conviction for impeachment purposes by the State. In considering appellant’s contention, we held that the error, if any, was waived. We now hold that there was no waiver and that the impeachment was improper, but that the error was harmless beyond a reasonable doubt.

The record reflects that the appellant robbed the complainant at gunpoint in Dallas. Shortly after the robbery, the appellant and his co-defendant were arrested. The fruits of the robbery and the weapon used during the robbery were found in the possession of the appellant and his co-defendant.

At trial, the appellant’s confession was introduced in evidence and the complainant identified the appellant as one of the two robbers. The appellant denied committing the offense, denied signing the confession, and denied having any of the fruits of the robbery in his possession.

The record further reflects that after the appellant took the stand the prosecutor attempted to impeach him on cross-examination with a prior probated conviction. Counsel for the appellant objected on the grounds that the conviction was not a final conviction and requested the opportunity, in the event his objection was overruled, to prove the lack of finality of the conviction by a bill of exception.

The jury found the appellant guilty and the trial judge assessed punishment at twenty-five (25) years in the Texas Department of Corrections.

The essential question is whether the objection was sufficiently specific to preserve for review the issue of whether the probationary period of the prior conviction had expired, thereby rendering the conviction neither final nor within the purview of Article 38.29, Vernon’s Ann.C.C.P.

The generally acknowledged policies of requiring specific objections are twofold. First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it.¹ Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony. McCormick, Handbook of. the Law of Evidence, Sec. 52, p. 113,115 (2d ed. 1972); 4 Jones, The Law of Evidence, Sec. 28:2, p. 276 (6th ed. 1972). In accordance with these policies, a number of exceptions to the general rule that a party cannot complain on appeal to the overruling of a general objection or an imprecise specific objection have been created. 1 McCormick & Ray, Evidence, Sec. 25, p. 25 (2d ed. 1956). Thus, where the correct ground of exclusion was obvious to the judge and opposing counsel, no waiver results from a general or imprecise objection. McCormick & Ray, supra.

In the case at bar, the trial judge took judicial notice of “. . . all of the proceedings, and all of the documents and all of the pleas in Cause C-70-5096-LJ . . ” (the probated conviction in question). This was permissible since the prior conviction and objection had been before him. Fleming v. State, 502 S.W.2d 822 (Tex.Cr.App. 1974); Horman v. State, 423 S.W.2d 317 (Tex.Cr.App.1968); Armstrong v. State, 120 Tex.Cr.R. 526, 46 S.W.2d 987 (1932). The trial judge therefore had knowledge that the probationary period had expired. This knowledge also rendered plausible the proposition that defense counsel’s objection obviously was directed at the inadmissibility of the prior conviction because of the expiration of the probationary period. The trial judge’s action in ruling that there was no showing of the finality of the conviction supports this conclusion.

The trial judge’s determination that the record did not reflect a showing of finality was also sufficient to put counsel for the State on notice of the objection. This conclusion stems from the proposition that where the State attempts to impeach a defendant’s credibility by proof of a prior conviction, whether it be a felony or misdemeanor involving moral turpitude, the burden is on the defendant to show that the conviction was not a final conviction unless the record otherwise so reflects. Poore v. State, 524 S.W.2d 294 (Tex.Cr.App.1975); Smith v. State, 409 S.W.2d 409 (Tex.Cr.App. 1966); Herrin v. State, 97 Tex.Cr.R. 494, 262 S.W. 486 (1924). Where the defendant meets this burden or the record otherwise reflects that the conviction is not final, then an objection that the prior conviction is not final is sufficient to preserve error predicated on the basis that the conviction is not final because the probationary term has expired. Therefore, since the record re-fleets that the trial judge took judicial notice of all of the proceedings involving the prior conviction, and the probationary period of the prior conviction had expired prior to the trial of this cause, the record reflects the lack of finality of the prior conviction. Horman v. State, supra; Cannon v. State, 479 S.W.2d 317 (Tex.Cr.App.1972); Fleming v. State, 502 S.W.2d 822 (Tex.Cr.App.1973). We are unable to conclude that the objection, in light of the foregoing, did not disclose the nature of the objection to the prosecutor.²

Moreover, the instant case is distinguishable from Parker v. State, 384 S.W.2d 712 (Tex.Cr.App.1964), where the defendant was impeached on cross-examination during the guilt stage of the trial with a prior probated burglary conviction. Even though the probationary period there had expired, the conviction was set aside, and the case dismissed pursuant to Article 781d, Sec. 7, V.A.C.C.P. (now Article 42.12, Sec. 7, Vernon’s Ann.C.C.P.). The court noted that under Article 732a, V.A.C.C.P. (now Article 38.29, Vernon’s Ann.C.C.P.), such an impeachment was improper. Counsel, however, merely moved for a mistrial without stating his grounds for the mistrial. The Court, in overruling defendant’s contention, stated:

“A different question would be raised had the appellant directed the trial court’s attention to his motion praying that the district attorney be instructed not to bring before the jury the fact that he had been previously convicted in the cause in which he was granted probation, the term of which had expired and the conviction set aside.” Parker v. State, supra at 714.

Also distinguishable is Goad v. State, 464 S.W.2d 129 (Tex.Cr.App.1971), where the prosecutor cross-examined the defendant during the guilt stage of the trial about a probated burglary conviction in which the probationary period had expired. A review of the record in that case reveals that counsel for the defendant objected by stating:

“We think this is improper. We think the objection is not admissible under Article 38.29 of the Texas Code of Criminal Procedure; and we ask the jury disregard that matter.”

This Court held that the objection failed to “. . . direct the court’s attention to any claim that probation had been granted and the probationary period had expired.” This Court also noted that the record, including the transcription of the court reporter’s notes of the penalty stage,³ failed to disclose the expiration date of the probationary period.

Both Parker, supra, and Goad, supra, are distinguishable from the case at bar. First, in Parker there was no statement of the grounds relied upon by defense counsel. Second, in Goad there was no showing in the record that the probationary period had expired. Unlike Parker, however, appellant’s counsel in this case objected on the ground that the conviction was not final. Moreover, in this case, unlike Goad, the record does reflect the expiration date of the probationary period because of the trial judge’s action in taking judicial notice of the prior conviction. The objection was sufficient to preserve the ground of error.

We now turn to the merits of appellant’s contention. Article 38.29, supra, states:

“The fact that a defendant in a criminal case, or a witness in a criminal case, is or has been, charged by indictment, information or complaint, with the commission of an offense against the criminal laws of this State, of the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment, information or complaint a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the period of probation has not expired. . . . ” (Emphasis added.)

The cases have established that it is error to permit impeachment during the guilt stage of the trial by use of a prior probated conviction where the probationary period has expired prior to the date of the attempted impeachment. Mills v. State, 508 S.W.2d 823 (Tex.Cr.App.1974); Nichols v. State, 494 S.W.2d 830 (Tex.Cr.App.1973); Smith v. State, 455 S.W.2d 282 (Tex.Cr.App. 1970). The trial judge clearly erred in concluding that the prior conviction could be used for impeachment.

The State, however, contends that the prior probated conviction was admissible because a motion to revoke the defendant’s probation had been filed prior to the expiration date of the probated conviction. While it is clear that the prior conviction would have been admissible had the defendant’s probation in fact been revoked, Roliard v. State, 506 S.W.2d 904 (Tex.Cr.App.1974), the issue raised by the State is one of first impression.

The record reflects that the motion to revoke and the capias were issued one day prior to the expiration of the probationary period. The capias was served on the appellant on May 23,1975, eleven and one-half months after the probationary period had expired. A copy of the motion to revoke was served on the appellant on July 17, 1975. The trial of the instant case occurred on September 15 and 16, 1975.

The decisions of this Court indicate that the filing of a motion to revoke and issuance of a capias prior to the expiration of the probationary period vest a limited jurisdiction in the trial court to hear the motion after the expiration of the probationary period.⁴ Strickland v. State, 523 S.W.2d 250 (Tex.Cr.App.1975); Coffey v. State, 500 S.W.2d 515 (Tex.Cr.App.1973); Ortega v. State, 414 S.W.2d 465 (Tex.Cr. App.1967); Ex Parte Fennell, 162 Tex.Cr. App. 286, 284 S.W.2d 727 (1955). The mere filing of a motion to revoke and issuance of a capias do not, however, automatically terminate probation. The State must prove by a preponderance of the evidence that a condition of probation was violated. Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976); Scamardo v. State, 517 S.W.2d 293 (Tex.Cr. App.1975). Acceptance of the State’s position would elevate the filing of a motion to revoke to the status of an adjudicated finding by a court that probation could in fact be revoked. The State’s position therefore creates, at least for purposes of impeachment pursuant to Article 38.29, an irrebuttable presumption that probation would in fact be revoked merely because a motion to revoke probation had been filed. This irre-buttable presumption violates due process of law. Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973).⁵

However, because of the positive identification of the appellant by the complainant, the appellant’s confession, and the appellant’s possession of the fruits of the robbery and the weapon used during the robbery,, we have concluded that the erroneous impeachment was harmless beyond a reasonable doubt. The appellant’s contention is overruled.

The appellant’s motion for rehearing is overruled.

1 . A collateral but important ramification of this function is to provide the trial court with an opportunity to attempt to cure any harm resulting from the action giving rise to the objection. Coleman v. State, 481 S.W.2d 872 (Tex.Cr.App. 1972) and cases cited therein.

2 . We would note that proper prosecutorial preparation of a case would include a determination by the prosecutor of the status of a prior conviction. Thus, if the prosecutor was aware that the conviction had been probated, and that the probation had expired, then the attempted impeachment would have been in bad faith. Goad v. State, 464 S.W.2d 129, 133 (Tex.Cr. App.1971). The record, however, is silent to this point. For an example of the appropriate procedure where the issue of bad faith is raised, see Martin v. State, 491 S.W.2d 928, 930 (Tex.Cr.App.1973). Cf. Love v. State, 533 S.W.2d 6, 12 (Tex.Cr.App.1976) (dissenting opinion).

3 . At the penalty stage, the prior probated conviction could have been admissible even though the probationary period had expired. Article 37.07, Vernon’s Ann.C.C.P.

4 . This assumes, of course, that the State diligently attempts to prosecute the motion, Nick-las v. State, 530 S.W.2d 537 (Tex.Cr.App. 1975); Stover v. State, 365 S.W.2d 808 (Tex.Cr.App. 1963). Also, the right of the court to revoke probation is limited to those violations of probation alleged in the revocation motion filed prior to the expiration of the probationary period. Nicklas v. State, supra; Standly v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Cox v. State, 445 S.W.2d 200 (Tex.Cr.App.1964) (concurring opinion); McBee v. State, 166 Tex. Cr.R. 562, 316 S.W.2d 748 (1958).

5 . Moreover, there are strong policy reasons to condemn this attempted circumvention of Article 38.29. The standard of proof applicable in a probation revocation proceeding is by a preponderance of the evidence. Woods v. State, supra; Scamardo v. State, supra. Given this burden, requiring the State to prosecute a motion to revoke probation and obtain a revocation of probation before a probated conviction may be used for impeachment purposes not only eliminates any potential abuse by the filing of probation revocation motions to provide impeachment evidence for an anticipated trial, but also provides substantial compliance with the policy behind Article 38.29.!