Gene Thomas LAUBE, Appellant, v. The STATE of Texas, Appellee.
No. 40284.
Court of Criminal Appeals of Texas.
April 12, 1967.
Rehearing Denied June 28, 1967.
402 S.W.2d 123 | 164 Tex. Cr. R. 455 | 165 Tex. Cr. R. 405 | 149 Tex. Cr. App. 327 | 79 Tex. Cr. R. 529 | 119 Tex. Cr. R. 426
The filing of an application for misdemeanor probation does not change the rules stated above nor does it authorize the State to prove specific acts of misconduct against the accused particularly on the hearing on the issue of guilt or innocence. If the State‘s contention be correct that the earlier testimony of appellant had “opened the door” to his impeachment regardless of the nature of any prior conviction or its remoteness, then the State was entitled to refute such earlier testimony, but it did not authorize the trial court to admit into evidence the probationary application under the theory of impeachment at the hearing on guilt or innocence. The sworn application for probation that appellant had never been convicted of a felony or a misdemeanor punishable by imprisonment in jail or by a fine exceeding $200.00 was consistent, not inconsistent, with his earlier testimony, and related to an issue not then before the jury. Recently, this Court in Smith v. State, Tex.Cr.App., 414 S.W.2d 659, held that a defendant may not, over objection, offer proof in connection with his application for probation that he had never before been convicted at the trial on the issue of guilt or innocence alone where the proceedings are being conducted pursuant to
Therefore, the issue of probation was not and should not have been before the jury at the trial on guilt or innocence alone. Furthermore, the appellant had offered no proof as to his application and had withdrawn his application for probation prior to his impeachment before the jury. After such withdrawal, no further testimony on the subject should have been allowed. See Holland v. State, 79 Tex.Cr.R. 529, 187 S.W. 944; Harmon v. State, 119 Tex.Cr.R. 426, 45 S.W.2d 583.
We conclude therefore that under the given circumstances of this case, the learned trial judge fell into error when he permitted the State to impeach the appellant on his application for probation, an issue not before the jury at the trial on guilt or innocence alone. See Driehs v. State, 164 Tex.Cr.R. 455, 301 S.W.2d 123.
For the reasons pointed out, the judgment is reversed and remanded.
Henry Wade, Dist. Atty., John Emmett, Joe K. Hendley and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State‘s Atty., Austin, for the State.
OPINION
BELCHER, Judge.
The conviction is for burglary with two prior burglary convictions alleged for enhancement; the punishment, life.
Trial was had after Jannuary 1, 1966.
The sole ground urged as error is the admission in evidence of the articles found as a result of the search of the appellant over his objection that they were the fruits of an illegal search.
The testimony of the state reveals that while Officers Stewart and Johnson were on patrol about 1 a. m., Officer Stewart observed the appellant standing by the right hand front fender on the far side of an automobile on a well-lighted used car lot, which was closed for business, and he was looking toward the rear of the car; that when the appellant saw the patrol car, which was marked “Dallas Police Department” on the side and had red lights and siren, he began running before the patrol car had stopped; that Officer Stewart
At this time, a search of the appellant by the officers revealed three beer can openers and a Japanese letter opener. These articles were introduced in evidence by the state; and the testimony shows that they had been taken from the office building.
The appellant did not testify or offer any testimony in his behalf.
A Dallas City ordinance enacted under the authority of
It is concluded that the facts and circumstances under which the appellant was observed and found by the officers was sufficient to authorize his arrest under the ordinance without a warrant; and that the search was made incident to a lawful arrest. Roach v. State, Tex.Cr.App., 398 S.W.2d 560.
The judgment is affirmed.
OPINION ON APPELLANT‘S MOTION FOR REHEARING
DICE, Judge.
Appellant re-urges the contention that the articles found on his person were obtained as the result of an illegal search.
We have again examined the record and remain convinced that, under the facts, the appellant‘s arrest without a warrant was authorized under the Dallas city ordinance enacted under the authority of
In his motion, appellant insists that he was denied “Equal Protection Of The Law Under Voir Dire,” in violation of the
We overrule the contention and observe that while appellant was not permitted to ask certain questions on the voir dire examination he later, on cross-examination of the witness, fully questioned him relative to the facts and circumstances surrounding the arrest.
In his motion, appellant also insists that the court erred in not dismissing the charge against him because “He Was Denied A Fair And Speedy Trial,” in violation of the
The record shows that the indictment was returned against appellant on July 19, 1965, and that his trial was on March 28, 1966. No request is shown to have been made by appellant for an earlier trial. The contention is overruled. Dagley v. State, Tex.Cr.App., 394 S.W.2d 179.
The motion for rehearing is overruled.