*1 apply. of this case” does not puzzle is
reader left
majority not ex- means impeachment an accused
tend behalf, or Bur-
gett apply particular does so error. error was harmless constitutional majority clearly
If had delineated their
position it be tenable. The more simply
majority has around written presented. stated, dissent. reasons
For the I BEARD, Appellant,
John Thomas Texas, Appellee.
Court Criminal Texas.
May 20, 1970. July
Rehearing Denied felony prevent a error. convicted sufficient harmful ever been supra. negative to im- be answer See knowing defendant, Certainly peach sur- the circumstances before testifies, rounding I think not. conviction? the trial court’s atten- he calls completed probation successfully prior be conviction a tion to fact I think not. manner? same in violation of Gideon and was obtained utilized clearly prior possession too record evi- If the State available silent and not of such conviction which is remote ment, dence may ask the nevertheless make the State fur- as to the court should permit impeachment inquiry convicted if has ever been he and not ther prior to then be allowed of a show- absence a use negative gives answer ing him if he defendant had explain if affirmatively him to leave liar or waived the time or had affirmatively? pro- If such answers prohibition permissible, Suppose cedure accused’s appeal remote convictions had viction been reversed on destroyed. effectively May the State had never been tried. if he has him on cross-examination ask *2 83 ground His second of error that in permitting the court erred the state to the prove a 1947 conviction from State of was Louisiana. Such a conviction not intervening too remote con because of State, victions as in discussed Walker 297, Ap 166 Tex.Cr.R. 312 666. S.W.2d pellant’s contention that it inadmis was sible, because he the was convicted without brief, attorney, aid of an we yet and in his not “admittedly that find the record that at show the defendant was the time his of conviction.” Appellant contends he testi that because picked Monday, fied that was up on a judge Friday, taken before the on and get brings not his lawyer have time to Houston, Boyd, Jr., appellant. Walter case within the rule in Vance, Atty., C. Carol S. Dist. James 109, 258, L. 88 S.Ct. Brough Ray Montgomery, Dist. and Asst. Burgett, interpret Ed.2d 319. We do not Vollers, Houston, Attys., and D. Jim supra, in manner. Austin, Atty., State’s for the State. State, His reliance Moore v. OPINION is mis- Tex.Cr.R. S.W.2d placed appeal, that awas direct MORRISON, Judge. and here we have a collateral attack. rape; punishment, the offense The
years. Appellant’s of ground third error failure of admit
relates to the the court Attorney error Fred ground testimony first of in the of Appellant’s evidence the limit of charge Dailey. question did not seems to be a the court’s This that absence, of impression. of In jury’s the extraneous first jury’s consideration the de the flight Dailey of of and appellant’s the called counsel fenses to the was stated, fendant, to consider jury jury “I need in here.” State’s ap stated, issue of offenses on the the attor Dailey “Mr. was the extraneous ney is true that in defend pellant’s identity. appeared it behalf of this While of the evidence on he’s on originally lineup admitted ant in the not the case court the conclu flight, Joyce case Brenda offenses show but the concluded, trial, sug complainant,” he must have is the sion Jackson do, they gested are admissible also that this was “a of law as we now ap identity. jury.” Joyce proper When not for the Brenda on the any pellant that he had never seen in one of injured testified child Jackson appeared for who extraneous offenses discussed earlier. of the witnesses trial, he attorney’s testimony heard the and we state court any of not at un saying Dailey that he was have reviewed the effect appellant identify witnesses able to the scenes described alibi; to a wit lineup tantamount defense the men which reason, rule therefore, held brings this under and for this it nessed court State, Tex.Cr. quoted testimony need which is Smith v. inadmissible. We admissible, decide whether the same was App., 409 S.W.2d peachment because a review of he told the what court appellant it been reflects have of more behalf. Since the himself injected appellant. benefit the state than to the the conviction into evidence as any no rigging strategy, There was of his trial intimation overruling Neither the officers nor those error #2. *3 present suggested anyone identification of most, Dailey said,
in the At “One excited, visibly young
of the ladies put older women with her
her arm around tried to her and comfort loud,
her. She didn’t sob but I could out
tell that visibly she was moved some-
body lineup.” in the Rogelio GUTIERREZ, Appellant, error,
Finding judg- no reversible ment is affirmed. Appellee. Texas,
ONION, Judge (concurring). Court of Criminal of Texas. reached, would the result but 27, 1970. disposition of my add as to the remarks Rehearing July 15, Denied error #2. con- Appellant claims Louisiana, void
viction from State
under the rationale 258, 19 L.Ed.2d S.Ct. credibility while
was used need not behalf. We his own bars whether
reach the facts. Prior purposes
ment in view of appellant objected taking the stand
to the use such conviction without claim After his motion at the time. di- the stand and on overruled he took
rect examination admitted
viction. recently in United
Only Shorter v. Cir.,
States, 428, the defendant F.2d and admitted
took stand convictions, to be claimed Louisiana soft-
infirm, strategy “to waiting to anticipated without
en the blow” change prosecutor
see whether intention
his mind as to his impeachment.
use such convictions Ninth Cir- such circumstances
Under
cuit avoided im- extends
rationale