*1 Although these cases were decided under
Fed.Rule U.S.C.A., Cr.Pro.
may binding entirety not be in its proceedings state per Boykin v.
Alabama, supra, nevertheless, these cases
are distinguishable upon another basis. position takes the not in-
forming right him his applica- to make probation,
tion for he was not informed consequences plea. of his disa-
gree. The decision to whether to file application probation is a matter of
procedure. It should not be considered as
a consequence plea. True, as is the
case with all procedure, matters of choices
which are made during before and a trial invariably particular almost have con-
sequences. very fact prime is the
reason for the existence of right Appellant,
counsel. having been offered
counsel and declining, should not now be
heard complain of his ignorance own
procedure. Appellant’s sixth of er-
ror is overruled. judgment is affirmed.
Gregory HOPKINS, Appellant, K. Texas, Appellee.
The STATE of
No. 44388. Appeals
Court of Criminal of Texas.
March 1972.
Rehearing June Denied 1972. *2 conversation,
police. As a result Sta- Marquez came to the Austin Police tion, given where he was searched and five purchase. dollars with which to make left the Marquez and then Officer Sides police had in an automobile which station for undercover specially prepared been drove, Sides Marquez and work. Officer trunk, rode had been outfitted In addi- with a radio communication. for tion, bored several holes car, taillight rear fenders of the and that the oc- assembly so had been removed cupant Sides the trunk could see out. on to a location Marquez proceeded and Austin, city East Eleventh Street got out stopped Marquez car where the who group people approached standing the sidewalk and asked were member buy he some heroin. One could Guice, signaled to group, Bobby then distance appellant, was located a short who then up appellant in a the street car. Marquez and where came to the location standing. introduced Guice Guice told him Marquez appellant Marquez then allright.” (appellant) “He gave gave Guice, who the five dollars to appellant immediately appellant. it Mar- capsule of heroin to handed then the car and Marquez quez. returned away. drove Austin, Garcia, appellant. for M. N. trunk, point in vantage his From Smith, Atty., Phoebe Dist. Robert O. was unable to discern Officer Sides Lester, Vol- Atty., and D. Dist. Asst. object appellant gave to Mar- Jim Austin, lers, Atty., thereafter, for State. stopped State’s the car quez, shortly from capsule took Officer Sides it the same Marquez, testified that was
OPINION appellant. he had received from one which car, he ROBERTS, returned to Judge. capsule, so opened hand, held the his appeal from conviction This is the trunk. could see Sides Trial possession of heroin. unlawful punishment assessed before a with error. grounds of raises two years. court at confinement five contends In his first mo- granting Mar- trial court erred in Frank The evidence reflects that that certain addict, He contends tion for mistrial. quez, contacted a former heroin unduly prejudi- testimony by Marquez was Police Sergeant Bobby of the Austin Sides making improperly some and that it concerned Department cial reputation. particular, character and purchases of heroin undercover Mar- complains following portions “MR. am GARCIA: going object. prej- quez’testimony: completely did, specifical- udicial Yes, “A sir. we talked about And ly referring Defendant, has to this buy for some known undercover nothing preju- to do with It this case. know, pushers, dope *3 dicial, and I ask the to instruct know. jury to any purpose. consider it for “Q you already That had knowl- (Assistant District “MR. IRELAND edge of ? Honor, Attorney): Your we move that be stricken from the record. Yes, “A sir. May “MR. we have an in- GARCIA: Honor, Your want “MR. GARCIA: I Court, Honor, struction from the Your to to out- object any any to reference jury? Defendant, side because activities this particu- here concerned with this “THE gentle- COURT: Ladies and Defendant, except object lar and I men, you ques- will the last any extraneous matter. answer, purpose tion and what- soever. “THE COURT: The at conversation hearsay. Department Police I n n n : n n n objection. will sustain “Q You say anything Gregory Kent Hopkins ? “Q right, All Frank, your as a result of police with discussions the Austin Yes, sir, see, “A I did. You at the officers, what, hap- anything, if time that them talking was there I pened at that time? colored boys, one of them came over there and scored. Yes, sir, “A de- we had decided to—we go try cided to find some “Q Now, scored? people pushing I know who were “A buy dope. To some dope. Honor, “MR. GARCIA: Your am then, I
“Q
right,
place
All
and what took
going
object.
highly prejudi-
This is
anything?
if
cial. This is the same
of question
kind
Well, yes, sir,
“A
I was searched.
objected
answer
ago,
I
to minute
and we ask the
Dis-
Court to instruct the
“MR. GARCIA: Your
ob-
I
trict Attorney not to
type
ask
ject
except
used, push-
to the word
question.
ing.
I think it is highly prejudicial in
case,
and I ask the Court to have
prejudicial,
He knows it is
and we ask
it stricken from the record and instruct
the Court to—
the jury not
any pur-
to consider it for
“THE
con-
pose.
COURT: I will allow the
pres-
versation if the Defendant was
“THE
Objection
COURT:
will
you
ent and overheard
estab-
it.
overruled.
basis,
admissible;
lish
if
not,
hearsay,
it is
and not admissible.
exception.
“MR. GARCIA: Note our
lay
predicate.
proper
Please
n
n
ij<
n
n
£
n
n
Yes,
n
n
n
“A
Well,
sir.
seen
be-
I had
him
fore, you
Oh,
see,
you
“A
Greg
know.
know
he
approached
I
I
Guice,
there,
Bobby
you know,
run
with
right
around
Lee
asked
and I
know,
him,
dope, you
got
sell
so—
‘Say,
you
any dope?’
have
said,
got
ant, and I
the Court to instruct
‘No, man,
ask
I haven’t
any purpose.
not to
it for
anything,’
consider
you know.
me,
Objection
Well,
know.
“THE COURT:
sustained.
you
he didn’t know
thing if
have
the same
I would
done
May we have an
“MR. GARCIA:
probably
me.
approached
would have
now
struction
?
have
it because—
wouldn’t
sold
Frank, just testify as
“Q All right,
Honor, object.
GARCIA:
“MR.
you
did.
saw and what
wit-
part
rambling
what he would
gentle-
don’t care
ness. We
Ladies and
COURT:
do
done,
say what would
men,
and to
have
consider
actions.
somebody
similar circumstances
under
*4
Honor,
Your
at this
“MR. GARCIA:
has
buying dope
approached him for
the
time,
on
we ask for a mistrial
nothing to do
Defendant.
with this
grounds
jury
that
instruction
no
Objection
jury’s
sustained.
“THE COURT:
can erase
mind
from
has
here-
prejudicial
that
evidence
in-
May we have an
“MR. GARCIA:
by this
tofore testified to
and
Honor, to dis-
Your
struction to
ask for a mistrial.
complete
by
statement
Defendant ?
Request
denied.”
COURT:
gentle-
Ladies
“THE COURT:
and
Appellant’s
objection
first
sus-
was
men,
question
an-
disregard
the last
in-
by
request
tained
court. No
for
swer.
jury
disregard
an-
struction to
“A started
“Q On
n
headed
boy,
Eleventh
n
eastbound
talking
n
Gregory went
Street
n
to another
and—
?
n ?
off.
colored
[*]
He
swer
then
objection was
quested at that
jection
structed
objected
was
was
made,
disregard
sustained,
to the word
overruled.
time.
nor was
Appellant’s
question
pushing, but
The next
jury
mistrial
and an-
was
counsel
ob-
re-
in-
request
No
for mistrial
made
swer.
was
“A
Eleventh
On
Street.
objection
time.
sus-
at that
The next
was
“Q
right.
All
pending
next
prior predicate.
tained
The
ground
objection
on
was overruled
later,
“A About
or three minutes
two
testifying
that the
was
as to
Bobby
across the street
Lee came
objection
not
he had
The
was
observed.
from Eleventh.
ground
on the
it indicated an extrane-
Bobby
Now,
Bobby
“Q
appel-
Lee?
ous offense
that it concerned the
character,
ground
Lee?
lant’s
which is the
raised
wit-,
appeal, but
on the basis that
“A. Guice.
testifying
ness
not
first-hand
was
objection
sus-
knowledge.
next
was
right.
“Q All
tained,
request
appellant’s
for
me,
know.
“A And
knew
ques-
to the
jury
struction
me,
sold to
so—
next
granted. The
and answer was
tion
ground
on the
objection, which was based
arewe
GARCIA:
“MR.
answer concerned
the witness’
somebody else
not
in what
interested
persons
than the defend-
actions
interested
in this
We are
has done
case.
Appellant’s request
case,
ant was sustained.
happened
has
in what
granted.
was
an instruction
any ac-
prejudicial
refer to
is all
motion
made his
appellant
point,
At this
Defend-
particular
tions outside of this
testimony in
feel
was based
Apparently
mistrial.
the motion
We
nature that the court’s
this case was
such
effect
that the cumulative
any error.
disregard it cured
Marquez’
instruction
parts
of all
the various
volunteered, and
was
witness’ answer
objection
taken
to which
was
Appel
prosecutor.
was not elicited
prejudicial
mistrial
were so
holding in Music
lant
that the
contends
proper remedy.
would be
The motion
121 S.W.2d
objection
The next
was over-
was denied.
compels reversal.1
dis
(1938)
ruled.
agree.
appel
to which
The first answers
by a mo
objected
lant
followed
regard to those instances
reflected,
mistrial,
was
tion for
so no error
objections
appellant’s
were sustained
standing
question
at least
of each
terms
request
and the
was
for an instruction
immediately
Likewise, the answer
alone.
granted,
request
no
for mistrial
and where
preceding
motion
mistrial was
made,
was
there was no error.
alone,
it, standing
of such nature that
requested.
all the
received
relief which
the instruction. Unlike
cured
(Tex.Crim.
Moon v.
pre
Music, supra,
answer in
the answer
;
App.1971)
Jenkins
implicate
ceding the motion here did not
(Tex.Crim.App.1968).
only his
appellant.
It concerned
asso
*5
however,
Appellant
that
ciate.
contends
appellant’s
grant
the refusal to
cumulative effect of all the answers was
motion for
It has
mistrial was
error.
prejudicial
so
a mistrial was war
that
long
by
been held
this Court that the error
at
motion.
ranted
the time he made his
asking improper questions
admit
or in
agree.
do not
of
later
light
ting improper testimony may usually be
by
testimony
Marquez (corroborated
of
testimony
cured
the withdrawal of the
Sides)
purchased
the heroin
Officer
that
and an
instruction to the
to
in question
appellant,
was ad
same, except
in extreme cases where
ap
showing
purpose
mitted for the
of
that
question
or evidence
of such a dam
pellant
possession,
had it
his
do not
aging or prejudicial
suggest
nature as to
grant
feel that the
a mistrial
refusal to
im
impossibility
withdrawing
disregard,
was error. The
to
instructions
pression produced in
the minds of
testimony,
in the face
of this later
State,
jury. Casey
(Tex.
v.
mony at that time was as follows: principal regarding Dr. presence psychiatrist, Yero testified on voir witness, Marquez. credibility Part dire, the State’s his his out of offer the doctor’s Honor. introduce convictions Frank [******] “MR. GARCIA: same Marquez’ One further basis credibility we were allowed Thank question. crimes of moral you, order—on regarding I also psychiatric evalu- turpitude, this is “Q psychiatric eval- having After made thing. ation same Doctor, Marquez, uation of Frank at did arrive based give psy- his COURT: upon accepted psychiatric med- diagnosis. chiatric evaluation practices, ical Frank whether compe- any opinions want as to don’t capable relating— tency credibility, though, Objection. “MR. GOTCHER: strictly an opinion.” *6 “Q. relating capable —is events presence Yero jury, In the Dr. tes- past truthfully? previously had examined tified he diagnosis heroin that his was Marquez, and WITNESS: shall severe character disorder. addiction and I answer? that a severe character also testified develop- is a defect disorder defined as “THE COURT: Yes. self-conflict, self-discipline and ment of postpone ability to ratification lack “A The question answer to the has to also of emotional needs. Dr. Yero be qualified. he capable think narcissistic tenden- Marquez fied that of relating truthfully regarding his cies, limited concern others. and had a knowledge and recollection of events that Mar- Dr. felt Yero also stated past, particu- if there is a police informer quez’ work as gain, lar either material psycho- or satisfy psychological than more material logical, or any there particular testified, think gains. He “I there are also psychological need for him to distort special given these considerations certain truth, he is certainly very prone police they become individuals when —would very prone be to do that. sustained State’s formers.” The court “Q Now, [*] [*] [*] were the [*] fact, Doctor, [*] n objection. felt that, Dr. certain Yero also stated that circumstances, if the sufficient, Marquez gain would this material psychological or material gain to rights be expected could be sufficient benefit to Frank cross-examination, persons. to On prompt him of other to distort Marquez had the facts ? Yero stated Dr. retrieve recall, remember capacity to “A Yes.” memory. from his outset, will, ability At the we must first deter sufficient to understand “had engaged, opinion mine whether Mar Dr. Yero’s business which she will, quez’ psychological might prompt effect her making condition acts doing, her him distort wás inadmissible realized what she was knew facts relatives, province people an invasion of the and her knew the property she owned.” The held that court admitted, should have been Many opinion courts have excluded despite the fact that an ulti concerned expert regard of an witness in to ultimate mate issue which resolved would have to be issues, or issues are be determined by the jury. pointed The court out that opinion on the that such expert holding not mean that does province” “usurps “invades the or func- conclusion, legal witness or may state a jury.”2 tion of the where feel that We Radkey, supra, that the witness in Carr v. expert opinions courts have excluded testify permitted would have been grounds, these error.3 have fallen into “competent make a testatrix was expert many There are in which instances competency concept will.” The witness’ witnessses are allowed to legal meaning might and the of that term their regarding the existence entirely two different matters. See be. necessary facts to the determina- Lindley Lindley, (Tex. tion of the ultimate issue on trial. Mitchell, 350, 31 1964); Brown v. 88 Tex. testified, example, if a medical witness 621 (1895) S.W. . that, prosecution, murder causes,” the deceased died from “natural repudiation of “invasion testifying he not as to of an the existence jury” rule does- not fact, ultimate the existence of expert non-expert mean that an finally be jury? determined state freely him, chooses to believe then fact in issue. Before his admissible, following be must criteria guilty accused be of murder. cannot found (1) competent be met: He must be perceive why expert no reason certain subject testify. (2) The must qualified to merely should be excluded evidence expert one which the aid of because the some ultimate covers *7 opinion jury. be of will assistance to fact issue. (3) testimony may legal a His not state Supreme repudi- example, Court of Texas has lay For a conclusion. prohibited ated the rule which the admis- non-expert usually not be or witness opinion regard expert testimony sion of in permitted opinion, he is to state an because Radkey, to ultimate 393 opinion, issues. Carr v. position in no better to form an case, the (Tex.1965). 806 In that S.W.2d possesses, based on the facts than expert Court held an witness quali should equally is the Both are well testify that, been in his have allowed to opinion testimony nothing fied. His adds opinion, testatrix, wrote a at the time she superfluous.4 It entirely case. survey 1956); Wig- 2. For a as to the status of the also see the late Professor jurisdictions, 1953, opinion in rule other as more’s comments on the use of Norvell, expert general. testimony see Invasion of the and Province VII Jury, Wigmore (1953). Evidence, 31 Tex.L.Rev. 731 on §§ 1917-1929. Wigmore soundly, 4.According 3. to both The rule has been and in our and McCor opinion correctly, by Ray, mick & criticized com- this is the true reason for opinions. Wigmore lay mentators. dence, See VII on Evi- exclusion VII See Wigmore Evidence, 1920, Ray, 1918, 2 and § § Mc McCormick Evidence, (2nd Ray, Texas Ed. Cormick Law of 1395 Texas § Law Evi
219
125 Tex.Cr.
State,
(1938);
McCullers v.
expert,
even
the witness is an
Casey
357,
v.
(1933);
R.
67
879
qualifed
give
opinion
an
S.W.2d
111,
461
116
32 S.W.2d
Tex.Cr.R.
competency.
to a matter outside his
example,
examining physician may
Maroney
State, 115 Tex.Cr.R.
(1930);
be
an
Davis v.
quite
298,
(1930);
S.W.2d
qualified to state that the cause
772
well
72,
417 (1930).
gunshot
death was a
wound.
S.W.2d
This does
Tex.Cr.R.
mean,
cited
however,
On closer examination of
above
per-
that he
be
should
reality,
cases, however,
that,
find that
testify
mitted to
in his
laya
witness who
the witness was either
compe-
defendant fired the shot. He is not
opinion, or
an
an
attempting
was
to state
opinion.
tent
to state such an
third
opinion
expert
stating an
who was
requirement
is best
illustrated also
is,
That
expertise.
outside the area of his
example.
suppose
us
Let
opinion.
competent
to state
he was
stant
compe-
had
case
issue
been the
Likewise,
where the
cases
we find some
tency
testify,
the witness
instead
jury rule
of the
province
invasion
impeachment.
asked
doctor
been
stated,
for exclu
reason
was
but the real
give
to whether
as
that the witness
was
sion of the
witness,”
was
“competent
his answer
Murrell v.
See
legal
stated a
conclusion.
would
clearly
have
inadmissible.
137 Tex.Cr.R.
conclusion;
would
stating
legal
have been
Tex.Cr.App.
State, 129
(1939); Anderson v.
something
qualified
he would not be
to do.
Yowell
(1936);
His conception
competency
State, 125
we conclude for all other side impeachment purposes, poses, province “invasion (and duty likewise will feel bound do jury” long rule is and dead. has delay, so). likely be rightly result fact, Recognizing this now follow principal issues of confusion Supreme lead of the Texas However, trial, expense parties. give it a long overdue and official burial.5 be suf- possibilities these alone would
Therefore, having us to exclude such determined that ficient to cause that, in our prime would not reason mony. have been inadmis- Our such gained from sible for to be the reason of the benefit invasion enough to offset great we must de- now have listed. psychiatric disadvantages cide which we whether evidence itself *9 ample, 30.13, jury a 5. if the chooses to believe We construe Articles 38.04 and great Ann.C.C.P., provide in of a ileal of the face that Vernon’s which contradictory jury testimony, judge the face the is the of exclusive the facts, Court, expert opinion, meaning the are bound of by courts that or the reject trial timony their decision. court not certain tes- of because disbelief. ex- the perceive failWe than before. it is fused that psychiatry is such The state “an amateur’s from gained to be benefit There exists than science. an art more psy- sea fog-enshrouded the voyage on divergence of deal of great did Therefore, court trial the chiatry.” men learned qualified and among eminently testimony. limiting the not err na- the being of profession. the not psychiatric it is, that ture is affirmed. judgment inexact. divergent, but often often nature, be the benefit In view of OPINION be probably jury quite gained the would subjected be jury the slight. Often part MORRISON, (concurring Judge opin- conflicting inexact witnesses and dissenting part). ions, minimal be the value of which would the issue enabling jury decide con- of this affirmance in the I concur credibility. As is so often case majority portion of the in that viction and psychiatric where those instances the invasion discusses likely quite permitted, jury now jury. See experts” who be witness to a “battle of in Cordero I for the Court prepared called, general reality, not for the 160, 174. 164Tex.Cr.R. upon knowledge can bestow majority Further, agree with I court, partisan benefit which bar case at that in the do not conclude hope parties the witness called Yero’s excluding witness court erred receive. however, bring my- cannot, testimony. I It is objections true these same the ma- portion of agree with self properly testimony. expert at all leveled pronounced jority opinion which However, psychiatric wc feel im- permit does not flexible rule peachment differs, the rea- pur- impeachment psychiatric stated, expert testimony. sons from other holding of poses. do read I short, we do not feel such testi- in Ballard v. Supreme of California mony will jury enable the to better decide County, 64 Diego Supreme Court San purpose expert issue. P.2d 159, Cal.Rptr. Cal.2d mony supply is to knowledge which would Bal- majority. quote as does the ordinarily be available to the trier lard, supra: psychiatric fact. While information is not laymen, known most there still avail- “Thus, polar extremes rejecting able to impeachment the usual evi- prohibition an abso- absolute dence such as criminal convictions sub- prosecutrix requirement lute prior inconsistent statements to assist in examination, we have psychiatric tomit Thus, determination of credibility. unlike placing the ground, accepted a middle highly issues, case of technical of the trial in the discretion matter even without psychiatric testimony will judge.” fact, be left “in the dark.” In after subjected conflicting, equivocat- several in the of this con- I concur affirmance ing highly psychiatric opin- reasoning technical set forth viction but not ions, jury may actually majority opinion be more con- read it. Flores-Rodriguez, (2nd (concurring opinion). 6. 1956) United States F.2d Cir.