*1 Second, jail ing prompt hearing appellant a be held in in unavailable. revocation hearing such a than twen- without more has not demonstrated a need for this state- ty days filing request, facts, from the of his in- ment of identified the relevance cluding any spent jail awaiting a time appeal, any has to the instant or shown hearing on a motion to revoke if the Third, harm suffered. the record does not alleges amended or substitute motion appellant designated reflect whether the same violation or other violation the the statement of facts for inclusion in the could have discovered the use of Fourth, appellant record. failed ob- original reasonable effort at the time the ject provided by to the record as Article motion to revoke filed. 40.09(7) V.A.C.C.P. The authorities relied upon by appellant inapplicable are duty imposed upon The trial case; the instant the statements of facts clear; 8(a) courts Section the statute’s which were unavailable in those cases relat- application is mechanical. When confront appeals proceedings ed to from which were request speedy ed with a for a revocation sought. appellant’s ground The of error is hearing pursuant 8(a), to Section the trial overruled. hearing twenty a court shall conduct within days request of the or release the defend judgment The is affirmed. comply ant. If the trial court fails to requirements the statute’s the defendant
may legality attack the of his confinement corpus. means of the writ of habeas Ex Trillo, parte (Tex.Cr.App. 1976); see Articles 11.01 and 11.23 V.A.C. C.P. However defendant probation await the revocation of his present twenty-day then a violation of the CARTER, parte Appellant. Ex Andrew 8(a) requirement ground of Section as of No. 67149. appeal. error on a violation is not Such “error” which taints the trial court’s deci Appeals of Texas. Court Criminal probation sion to revoke the and therefore judgment. mandates a reversal of the A Sept. 8(a) merely
violation of Section amounts prehearing unlawful confinement. Once probation the defendant’s has been revoked protected against he cannot be such con finement. Thus we conclude that relief obtained, all, prior
must be if at probation. revocation of the defendant’s This the in the case at hand failed Accordingly ground of er to do. the first ror is overruled. appellant’s ground second 7 of
error states: “The absence of a record Appellant’s requires Ap trial a reversal of
pellant’s conviction.” This contention is First, merit for several reasons.
without indicating there is no evidence in the record guilty plea transcription hear- appellant’s ground applicable stant cause contains all of the docu- 7. We construe the to com- 40.09(1) required by plain an absence of a statement of facts from ments Article V.A.C.C.P. guilty plea hearing. in the in- The record *2 employed by in
The rationale the Court appeal was erroneous to petitioner’s direct misleading held that that it was extent by the defendant on cross- statements made regard prior to trouble with examination impeached with extra- the law State, supra at Carter v. neous arrests. properly overruled holding a 284. Such However, State, a Shipman supra. in petitioner’s in direct review of the record result was appeal reflects that the correct unneces- appeal. reached on It is therefore question of whether the sary to reach the appropriate sub- presented here is an issue ject Through his di- for collateral attack. trial, peti- testimony rect at the time of his crimi- gave a false of his tioner nal record. examination, petitioner testi- direct
fied as follows:
“Q. you telling jury that . . . Are
you’re as clean as the driven snow any- you that have never done and Huttash, Austin, Atty., thing wrong you or that have never Robert State’s for the State. in trouble? No, saying
“A. I’m not that.” answer, Following OPINION “get specific.” proposed to Peti- counsel previously testified that he had tioner then DAVIS, Judge. TOM G. charge robbery by pled guilty to a as- post-conviction application This is a year pro- in and received a five sault corpus pursuant writ of habeas filed to Art. Petitioner related that he bated sentence. 11.07, V.A.C.C.P. charge pled guilty robbery to a second in robbery by Petitioner was convicted of received a sentence in the Texas 1969 and Punishment, February assault Department of Corrections. Counsel then conviction, enhanced was as- “going get stated that he was into some- life. The affirmed sessed at conviction was thing Attorney District could not that State, appeal in Garter v. get Petitioner then testified that on into.” (Tex.Cr.App.). grounds of error One 23, 1973, February on a was arrested rejected appeal, advanced and that charge burglary in San Antonio. Coun- allowing peti- court had erred in concerning questioned petitioner sel then impeached to be with evidence show- tioner pending theft indictment for an offense ing he had been arrested in thirteen alleged July have been committed on in con- felony cases which had not resulted charge, regard to the theft 1973. With now contends victions. Petitioner “Yes, petitioner testified: sir. I made that respect was in error with Court crime, petitioner Finally, too.” was asked points to impeachment ground of error. He following questions: subsequent Shipman our decision “Q. your record you And know with (Tex.Cr.App.), 604 S.W.2d going happen you. supra, was overruled. what’s which Carter v. that, time, other than those about which he offered you’ll do serve When testimony. Nelson v. Tex. right? 543; Cr.App., 503 S.W.2d Ochoa v. Yes, “A. sir. supra.” Id. at 640. clean, “Q. you’re saying you’re So case, petitioner by his di- In the instant you’ve things done some previ- rect admitted that he had those, willing you are to admit *3 ously Upon urg- in trouble. counsel’s correct? ing “get specific,” petitioner to admitted to Yes, willing sir. to “A. I am to admit prior robbery Petitioner two convictions. crime that I have committed.” the then to his arrests on two extrane- testified (Emphasis supplied.) offenses which had not resulted in con- ous testified, petitioner After he called Daniel then concluded this area victions. Counsel Sanchez, Jr., an officer with identification inquiry framed in terms of with Department. County the Bexar Sheriff’s petitioner’s willingness of a “record” and questioned booking to was relative Sanchez I “to admit to the crime that have commit- county jail and records maintained at the ted.” February petitioner’s incarceration on testimony conveyed direct Petitioner’s cross-examination, objection, over 1973. On prior impression that his two the distinct prosecutor questioned concern- the Sanchez prior and two arrests constitut- convictions ing petitioner the number of times had been “record,” including ed his entire convictions jail. arrested and booked into Sanchez petitioner’s of direct and arrests. The tenor permitted petitioner state that had been to that, except testimony was for those four booked on thirteen occasions and the reason instances, was clean.1 Peti- his “record” for each of those incarcerations. having “opened his tioner the door” to “rec- (Tex.Cr. Reese v. In S.W.2d presented a false of ord” App.), contended that the the defendant position complain of the same is in no to allowing prosecutor the to court erred presented by the extraneous arrests jury evidence of an ex adduce before the impression. in an effort to correct that false rejected the traneous offense. The Court petition- employed While the rationale stating defend after the contention erroneous, appeal the result er’s direct testimony created a false ant’s appeal on the record was of that based jury to the extent of impression with the as sought is The relief denied. correct. law.” The previous his “trouble with the ordered. It so as follows: Court stated charges are inad “Generally, of offenses McCORMICK, Judge, concurring. impeachment purposes for unless missible opinion, Judge Tom Davis’ join charges the result in final convictions obligated add a few observations. feel in felony offenses or final convictions volving turpitude, present legally none of which moral situation is also distinguishable Shipman factually Tex.Cr. from v. are too remote. Ochoa (Tex.Cr.App.1980). App., 481 847. An 604 S.W.2d witness, overruling language found in Shipman, his direct when the arises (Tex.Cr. impression of his Carter testimony, leaves a false However, the facts App.1977), is correct. police. In this situa ‘trouble’ with the opinion not the in the Carter are tion, legitimate prove that set forth it is only relevant facts. ‘in trouble’ on occasions witness had been theory partici- such was a defensive While testified that had he 1. Petitioner further offense, charge, involving reflected pated instant it nevertheless the theft in the instant clearly diamonds, $100,000.00 petitioner’s effort to and was an record he would worth prior pending present criminal involve- the extent of his theft been involved in the not have days charge, ment. have waited four nor would he burglary charge. pending make bond on the conviction, upholding respondent’s testify In did not Shipman, the defendant However, by prior to his criminal record. Court held: prosecutor pro- maneuvering,
clever made “. . . that a defendant’s statements prior intoxi- cured the defendant’s denial of response proper cross-examination Through “set-up” on a collater- cation. reasonably suggested the defendant’s issue, prior D.W.I. con- al the defendant’s subject to other- direct examination are impeachment. viction was admitted for impeachment by govern- wise Shipman, petitioner before us Unlike ment, by evidence that has been albeit “set-up” on issue and was not a collateral illegally obtained that is inadmissible voluntarily Petitioner then contradicted. case, government’s direct or other- history his criminal testified to —an wise, guilt.” as substantive evidence cross-examination, incomplete history. 627-628, Havens, at supra, at 100 S.Ct. testimony on petitioner stated that his di- complete his rect constituted a statement of *4 The Court said: prior criminal record. impeaching a defend- “. . . In terms of analagous
Finally, I find the case at bar
seemingly
statements with his
ant’s
false
to the recent decision of the United States
Havens,
Supreme Court in United States v.
prior inconsistent utterances or with oth-
620,
1912,
100
ONION, Presiding Judge, dissenting.
Stephens
supra.”
remoteness.
It is well settled that when a defendant
In Nelson v.
503 S.W.2d
privilege against
chooses to waive his
self-
(Tex.Cr.App.1974),
court
stated:
taking
voluntarily
incrimination
the wit
“. . . The
arises when the
generally subject
ness stand he is
testimony,
witness
his direct
leaves a
any
same rules as
other witness. He
false
of his ‘trouble’ with the
contradicted,
impeached,
give
made to
police.
legitimate
that situation
himself,
against
evidence
cross-examined as
prove
witness
been
‘in
matter,
every respect
to new
and treated in
trouble’ on
than
occasions
those
testifying
as
other witness
in behalf of
testimony.”
about which he offered direct
defendant, except
when some statute
In Nelson the defendant on direct exami-
against,
forbids certain matters to be used
asked,
you
nation was
“. . .
ever
[H]ave
proof
such as
his conviction on a former
inquiry
This
trouble?”
established
present
trial of the
or his failure to
case
placed
that he had been convicted and
testify
hearing.
on a former trial or
Brum
probation
passing.”
“forgery
(Tex.Cr.App.
field v.
asked,
defendant was then
“Is that all of
1969);
(Tex.
Myre v.
in?”
the trouble
have been
Nelson
Cr.App.1977).
answered he had served 30 months in the
charges
Mere
or
arrests
of offenses are
*5
pen
a
conviction for
as
result
a
assault
generally
impeachment
for
inadmissible
prohibited weapon.
pro-
with a
He then
purposes. Normally the State
cannot
robbery
claimed his innocence of
for
concerning
a witness
his criminal
being
which he
tried. On cross-exami-
was
charges
record unless the
have resulted in
prosecutor
permitted to
nation the
was
ask
final convictions for felonies or other final
a
which
about
number of arrests
had not
involving
turpitude,
convictions
moral
none
resulted in final convictions.
cross-ex-
Such
State,
of which are too remote. Ochoa v.
excep-
amination was held
under the
(Tex.Cr.App.1972).
“Appellant
pled
testified that he had
State,
guilty
to two
He said he
“In Nelson
S.W.2d
robberies.
generally
guilty
(Tex.Cr.App.1974),we held that
did this because he was
of those
offenses;
charges
offenses are inadmissible
pled
guilty
that he
not
purposes
charges
the
impeachment
unless
because he did not com-
instant offense
felony
convictions for
judicial-
resulted in final
robbery. Appellant
mit the
also
involving
or final convictions
ly
shoplifting charge which
offenses
confessed to a
none of which are too
turpitude,
alleged
was
occurred several
moral
have
However,
an
we noted in Nelson
Specifi-
remote.
month after the instant offense.
exception to this rule. The
stealing
cally, appellant was accused of
leaves a false
when the witness
Penney’s on
arises
some men’s suits from J.C.
police.
of his ‘trouble’with the
impression
July
1973. He confessed to this to set
legitimate
prove
situation it is
without funds
In that
up his defense that he was
had been ‘in trouble’ on
alleged
sto-
that the witness
shortly after he was
to have
which he
$70,000 $80,000
other than those about
worth of dia-
occasions
len some
545;
Id.,
ac-
testimony.
at
offered direct
monds.
cord,
State,
get
Reese v.
contradict the
defendant and
in evi
(Tex.Cr.App.1976). This contention is
dence collateral matters and evidence of
overruled.”
convictions for other offenses which
would otherwise be inadmissible. See
opinion
The Carter
held that whether
State,
Hatley
(Tex.Cr.
and that have never except attempt make on credit. 1. This was an to show that bond obvious robbery after the instant he had no means to clean, impeach- criminal record so as to authorize “Q saying you’re you’re not So things you despite eliciting and you’ve done some ment the State’s action those, cor- willing negative to admit are the above described action? rect? clearly direct examination Carter On Yes, willing to admit to “A sir. I am saying he had never been stated he was not the crime that I have committed.” acknowledged He two in trouble before. convictions, robbery and for various reasons Thereafter, again that it was established strategy burglary of defense testified to pleaded guilty in the earlier sought shoplifting charges. He and guilty robbery plead would in the cases and jail make clear that his confinement in shoplifting guilty because he was case jail. Did this leave a not his first time offenses, pleading not those but he was only those matters false robbery guilty in the instant case because entire inquired about constituted Carter’s guilty. he was not certainly There were no criminal record? cross-examination the State asked On type questions on “is this all the trouble” robbery by if he had committed direct examination. by the same of Joe Jasso. assault on a man answered, it’s majority He “I don’t know what cites Reese approv- (Tex.Cr.App.1976), about.” Later on cross-examination prosecutor asked: aggravated robbery case Reese al. In this was asked on direct examination: any
“Q you ever arrested for Have offenses besides the ones that other Reese, “Q you have had trouble Mr. today? here you have testified about before, you? with the law haven’t any “A I ever been arrested for Have Yes, “A sir. charges?
other “Q you have What kind of trouble do “Q Yes. with the law? No, haven’t.”
“A sir. I “A On a car theft have.” testified, he called Daniel After Carter prosecutor pro- cross-examination the Sanchez, Jr., identification officer with an Reese about convictions ceeded cus- County office and the Bexar Sheriff’s theft, pistol, carrying a for misdemeanor booking county records at the todian of felony use of an automo- and unauthorized questioned jail. about Car- Sanchez bile, charge and for unau- and the arrest 23, 1973, February ter’s incarceration on an automobile. thorized use of burglary charge. On cross-examination opinion The Reese stated: that Carter the State elicited from Sanchez response counsel’s “Appellant’s to his jail occasions into on 13 had been booked to his with the question relative ‘trouble those incarcera- and the reasons for each of plead guilty he had to a car law’ was that tions. not ask if theft case. While counsel did testimony directly contradicted This in, he had been this was all the trouble nega- to his impeached petitioner Carter as appellant’s any to relate other in- failure as to tive answer on cross-examination impression with clearly left stances whether he had been arrested of his jury that this was the extent only If charges than those mentioned. opened Having ‘trouble with the law.’ was before us there cross-examination law,’ with the the door to his ‘trouble question but that reversible would be no position complain of appellant is in no State, supra. Shipman v. error occurred. prosecutor’s inquiry relative charge use of for unauthorized open the door arrest Did the direct examination State, supra.” an automobile. Nelson v. impression about Carter’s or leave a false first, (Tex.Cr.App. ever been nation. The “... [H]ave 2. Nelson 1974), questions elicited a conviction for exami trouble before?” which two on direct involved
795 quite legitimate defensive jeopardy in is the Reese of the the correctness Whatever prior crimi- of a paints soften the effect result, language effort to quoted the above it first. subject by exposing easily nal record brush and is with a broad prepared to misinterpretation. I am not Therefore, join the be content to I would hold that whenever defendant do, I without com- Dissenting Opinion, as an of- arrest for mentions an examination undertaking by ment, the tortuous but for he is on that for which other than fense import the ra- Concurring Opinion to circumstances regardless that of the trial Havens, 446 U.S. tionale of United States ex- on direct all arrests must relate (1980) 1912, 620, L.Ed.2d 559 100 64 S.Ct. by the impeachment face amination or jurisprudence of into the regardless of a with his arrest record major- in the five Justices What the State. pred- laying strengthening of further or gleaned from the ity may were about impeachment by the State 2 icate for the discus- question and statement of the cross-examination. holding ex- immediately preceding the sion open the my opinion Concurring Opinion did not in the cerpted by examination, and the following on direct door sentences: having interrogated him about a collateral policies that the of “We also think by was bound matter on cross-examination impeach- no more bar exclusionary rule answer, contradicting him with his erred they did in Walder ment here than [v. was error. record. Such action his arrest 354, U.S., 62, L.Ed. 98 347 U.S. S.Ct. grant supra. I would Shipman v. 222, N.Y., 503], 401 U.S. Harris [v. requested. the relief petitioner Carter 643, [Oregon 1], and 28 L.Ed.2d S.Ct. v.] majority. to the action of the dissent 1215, 714, 95 S.Ct. Hass U.S. [420 the ends of L.Ed.2d In those cases 570]. TEAGUE, JJ., join in and ROBERTS exclusionary thought ade- rule were dissent. denying the quately implemented by challenged government the use of the CLINTON, Judge, dissenting. in chief. to make out its case evidence Yesterday was Bell v. furthering ends of those The incremental (Tex.Cr.App., Opinion on forbidding impeachment of the de- 22, 1981). Today Rehearing, July delivered insuffi- who testifies was deemed fendant Together they it is the at bar. toll case false testi- permit require or cient to portions of significant exercise of knell of resulting mony go unchallenged, with the right criminally afforded the constitutional integrity of the fact impairment who invokes “the accused. The citizen We finding goals the criminal trial. of right being heard”1 in the sense of testi- competing in- this assessment of reaffirm places himself in fying in his own defense and hold ...” terests by bringing up subject of way harm’s 627, Havens, at 1917. supra, at 100 S.Ct. misconduct, every past his word used say we are not here con- attorney framing question Suffice his trial exclusionary will with the constitutional every response him in cerned word uttered evidence, and suppressed “impression” pertaining rule into nuances of be translated explaining in the majority was its cross what the prosecution claims and “tenor” quotation the second paragraph from which designed to correct. Thus examination was second, suppressed fruit as the “forgery passing,” evidence “[W]hether “Is this and the seizure never- an unlawful search and in?” elicited a all the trouble have been false a defendant’s weap be used to prohibited theless trial conviction for assault with a testimony given response stronger than Reese. is a far case on. Nelson cross-examination, does where the evidence squarely testi- contradict the defendant’s not mony I, Rights, Bill of Constitution § 1. Article Havens, examination.” on direct Texas. the State of (All em- at 1913-1914. at 100 S.Ct. U.S. indicated.) phasis otherwise is mine unless *10 Concurring Opinion was taken is that reasoning of Harris and Hass—both in- volving impeachment assertedly false given cross examination first one,” is,
—“controls this Havens. Thus, majority “no difference of saw magnitude” in the otherwise
constitutional doubt this Court different situations. No assay ques- will the Havens answer to the presented, poses properly tion when today we have not done so. PARENT, Appellant,
William Texas, Appellee. The STATE of No. 67847. Texas, Appeals of Court of Criminal Woodburn, Amarillo, Douglas ap- R. Panel No. 1. pellant. 23, Sept. 1981. Hill, Danny Atty., Ken E. Dist. John- 14, Rehearing Denied Oct. son, Amarillo, Atty., Hut- Dist. Robert Asst.
tash, Austin, Atty., for the State’s State. ROBERTS, DALLY and Before TEAGUE, JJ., concur.
OPINION
DALLY, Judge. appeal from a conviction of the This is an child; of sexual abuse of a offense following court punishment, assessed imprison- plea guilty, appellant’s years. ment for six ground by the The sole of error advanced appellant is that the trial court erred in overruling quash motion to the indict- his says upon ment because he the statute prosecution is unconsti- which his was based tutional. pertinent part alleges
The indictment in April about on or