*1
writer does not
designed
moved from office. This
Such
commission is
so that
it
however,
“forgive-
that the
agree,
so-called
might dispose
disciplinary
of
matters with
future
doctrine” should be reserved for
ness
reasonable
It was created
expediency.
forgiveness
The
doctrine is
consideration.
people
purpose
conducting
for the
of
Bates;
strongly urged by Judge
it should
in-depth analysis of the fitness of an indi-
it
be forthrightly
be considered and
public
vidual to hold an office of
trust. The
rejected.
people entrusted the commission with the
authority to recommend to the Texas Su-
majority accurately
Arti-
The
states that
preme
sitting judge
Court
that a
be re-
applicable to
cle 5986 is not
removal cases
moved from office. As noted in the com-
V,
nature.
of this
Tex.Const. art.
1-a.
§
6,
mentary to Article
Section
of the
doctrine,
forgiveness
judi-
a shield for
Texas Constitution:
officers,
originated by
cial
this court as
Supreme
.
closely
Court
concept
Laughlin,
in In re
judicial
problems
associated with the
of adminis-
(1954).
Tex.
In subse-
cases,
tering justice,
daily by
and is confronted
Brown,
In re
quent
would not affect the outcome of the case question. The same is true here.”
Judge strongly Bates urges forgive-
ness judgment doctrine here. It is the
this writer that only is not before the consideration,
court for but also that totally rejected. doctrine should be MOFFETT, Appellant, Jesse Edward unequivocally doctrine has been jected by the voters of Texas and Texas, Appellee. The STATE of Legislature. Legis- The enactment No. 51841. approval by lature and the the voters of V, 1-a, Texas of Article Section Appeals Court of Criminal of Texas. Texas Constitution reflects the considered April people of the that a commission consisting justices of the courts of civil Rehearing On Sept. attor- appeals, judges, district court licensed neys, lay citizens be the best would to ascertain the fitness of a member
body judiciary to continue to hold office.
Kerry FitzGerald, Dallas, P. for appel- lant.
Henry Wade, Atty., Dist. Ronald D. Kinne, Hinds and Norman Asst. Dist. At- Dallas, tys., Vollers, Jim D. Atty., State’s David McAngus, S. Asst. Atty., Aus- tin, for the State.
OPINION ROBERTS, Judge.
This appeal is an from a conviction for aggravated After robbery. finding appel- lant guilty, jury punish- assessed his ment at years. twelve 11, 1974, On March m., at 8:30 a. appellant Kroger grocery entered a store in Dallas. After shopping approximately forty-five approached minutes he the check- out counter pointed gun at Vera Parrish, responded the cashier. Parrish the appellant’s money by plac- demands for ing the register contents of cash paper the office bag. Appel- drawer in lant then left the store. Appellant’s first contention is that court allowing erred in the State to ask an improper your while appellant’s cross-examining one char- punishment acter witnesses at the stage of Specifically, appellant trial. contends constituted an agree assertion of We and reverse. cross-examining While one of witnesses, the following character occurred: Kinne, “Q [By prosecutor] Have 1973, that he 18th of robbed a wom- Tindall, the name Francis at the Globe Cleaners at 2430 North with a Haskell Avenue firearm? “MR. GAY [Defense Counsel]: Honor, object. to which I Your pending which is That is a case trial in this court the Prosecutor well has entered knows defendant on, plea guilty of not and has de- not, and is manded a trial adjudicated, adjudi- and will be cated at date a future another jury prejudicial and is expelled from at this Mr. Webber
brought up Baylor University, when time.
[*] [*] [*] [*] [*] [*] shoplifting?” S.W.2d, at the ob- “THE COURT: Overrule were, Pitcock, *3 jection. discussions there during your your heard honor, my Your note “MR. GAY: the trou- boy’s reputation, about about this that the exception. I don’t believe concerning a DWI convic- he had ble that it is fair that he Prosecutor —that County in 1953?’ and Stephens tion in a case this witness about the trouble them discuss “Have trial, to state it pending is and which DWI that was in 1951 he he has in terms that committed County, Texas?” and Taylor conviction in has not been con- robbery, when [sic] during these discus- “Have ever heard has even been of not victed that concerning the trouble anything sions yet. a trial on the case Wayne Pitcock defendant your is ob- “THE COURT: What in Ste- concerning a DWI conviction 1953 It is not clear. jection? S.W.2d, (em- at 856 County?” 324 phens objection is that My opinion). cited phasis in offense, that is an extraneous Wharton, In improper the first highly prejudicial It is prejudicial. was, “Have heard that he is under pur- inflammatory, and the sole rape separate another indictment in a putting of it before pose case woman that occurred Mr. Moffett create an innuendo to S.W.2d, eight days after this one?” 248 at robbery, committed another has 740 (emphasis opinion). prose- in cited The been for and he has not tried cutor then asked two other witnesses virtu- of. not been convicted has ally question, substituting only your Overrule ob- “THE COURT: phrase, days “that happened eight after jection.” being one he is tried for.” Id. [the] State, 477 S.W.2d 619 In Brown stated the this Court (Tex.Cr.App.1972), The case cross-examining witness- character rule for heard that on the 18th of es: that a woman the name robbed of that, of its general part rule is as “The Tindall at the Globe Francis Cleaners cross-examination, permitted State 2403 North Haskell Avenue witness if has
to
the character
ask
added)
(emphasis
firearm?”
specific act of misconduct.
cases, including the
In each of these
However,
may not ask whether
the State
us,
began
properly
knowledge of
personal
the witness had
heard,”
question,
then clear-
act,
be framed
nor
that
ly implied by his choice of words
imply
actually
the act has
so
to
that
place.
fact
incident in
took
(em-
omitted),
(footnote
committed
been
added)
phasis
cases,
All
including
of these
those relied
dissent,
upon
make it
by the
clear
prosecutor’s
In
case the
implication
rule should look to the
detail,
and excessive
through
structure
its
question rather
form
than
alone.
actually
act had
clearly implied
opinion
dissenting
expressly
The
would
ele-
to those
question is similar
occurred.
vate
over
State,
form
substance. Yet
correct
in Webber v.
held
question may
imply
rule is that the
Pitcock v.
(Tex.Cr.App.1971);
rule” is a derivative
dissenters’ “form
thumb;
underlying
rule
it is not the
rule
Wharton v.
(1959); and
of law.
(1952).
248 S.W.2d
Wharton,
this Court said
As
Partida v.
(Tex.Cr.
506 S.W.2d209
char-
cross-examining a
privilege
App.1974), this Court wrote:
as a
utilized
not be
witness
acter
“Appellant’s only objection to the
is a
the defendant
prove
vehicle
cross-examination
charac-
he has
or
generally,
criminal
ter witness was
upon
based
the alleged
offense.”
committing another
guilty
fact that
did not relate to
Id., at 740.
final convictions.
Such
38.29,
also,
V.A.C.C.P.
Art.
See
no merit under Texas law. See Gaines v.
the cause
is reversed
State, Tex.Cr.App.,
remanded.
Sanders v.
Tex.Cr.App.,453 S.W.2d
DOUGLAS, Judge, dissenting.
...”
to one
Appellant
contends that a
Brown v.
en case, previ- the witness had In the instant found no intoxicated.” We driving while good reputa- ously as to testified that the in- majority hold error. Does prefaced was tion. question in the the date in the clusion of and, phrase with the objectionable? case makes present therefore, imply the act had did (Tex. In Childs committed. No error actually been inquiries con we Cr.App.1973), shown. the witness had cerning whether In Pitcock v. son, defendant, been indicted for “had question complained Cr.App.1952), marihuana possession of robbery and for was in trouble in was a statement that he prostitute who living Taylor County. It was held bad because a heroin addict.” also *5 question fact. The made an assertion of State, (Tex. 757 Carey v. 537 S.W.2d In was: “Have heard them discuss Court, ap by implication, Cr.App.1976), that he was in in 1951 a trouble much which contained as question a proved ?” Taylor County, in Texas DWI conviction concerning the miscon detailed information in that (Emphasis supplied). question in to as does the one issue. duct referred because it asserted a fact case was held bad There, the fol prosecutor propounded that he was in trouble. appellant’s rep three of lowing question to question does not present In the case witnesses: utation of fact. It is like make an assertion incident you heard about an prop- been held to be a questions that have 27, August one week before happened way knowledge er to test the of a witness 1974, fire- where he threatened another of a reputation about the defendant. (Emphasis supplied) ?” pistol man with a State, 248 739 Wharton v. S.W.2d question of this We concluded that form question rep concerned a of a Cr.App.1952), witness was im- to the fourth as addressed un witness that the defendant was utation attempt an solely because it was proper rape “that occurred der indictment that the incident through the witness show this one.” That is definite eight days after by than heard did occur rather proper not a ly an assertion of fact and pistol. a fireman with that he threatened therefore, is, question 122, State, 164 Tex.Cr.R. 297 Perry v. In in the distinguished from the the de- (1957), the mother of 187 S.W.2d present case. if had heard that was asked she fendant of 1953. robbery May charged was case showing present is no in the There held, vio- did not The Court asked in bad faith. was asking a char- prohibits late the rule question.is improper that such To hold specific acts of if he knows acter witness previous deci- contrary to all the would be of an accused.” misconduct majority should by the Court. sions this and the the difference between explain (Tex.Cr. 136 v. S.W.2d Webber affirmed. cited above which have been cases distinguishable. In App.1971), is reputa- questions may What be asked held that this Court cannot tell. expelled from tion witness? One Mr. Webber was rape been shown. The No error has in a case on a separate wom- be affirmed. eight an that days occurred after this one ?” (Emphasis added throughout.) ONION, J., joins in P. this dissent. In each these earlier cases the improper, was not for excessive detail OPINION ON MOTION STATE’S describing the inquired rumored event FOR REHEARING about, but because properly ODOM, Judge. begun, went off-course before its comple- original On submission convic- tion the use of other words middle asking tion was reversed for the of an im- that had the of nega- effect proper question by ting cross- you heard,” the unassertive “have examination witness. replacing with asserting words the mat- question asked was: ter as fact. In Webber it was the added-on phrase, “when he was shoplifting.” that on In Pitcock it was use of the 1973, phrase, “the
18th he robbed woman in,” trouble that he was “the or trouble that Tindall, at the name of Francis the Globe had.” Wharton the words “that oc- Cleaners at North Haskell Avenue injected curred” an assertion of fact. awith firearm.” original The majority on submission found course, every Of case turns on its question, although in the framed facts, issues, own both of whether the form, im and, so, objectionable if implied because the act was actu whether it be cured an instruction committed, ally case Webber disregard, must be decided after ex 136; State, Tex.Cr.App., v. Pit S.W.2d amination of the presented. circumstances cock v. v. Carey Tex.Cr.App., 537 S.W.2d and Wharton v. language we overruled Parasco we find On that stated an in asked in those cases disregard struction to could not render *6 distinguishable from the one asked here. an harmless in this line was, the question In Webber asked of cross-examination. Pitcock and you heard that Mr. Webber was “[HJave objections by the Wharton were overruled expelled Baylor University, he from when court, the trial in but Webber the caught shoplifting ?” In Pitcock the to sustained and instructed were, questions you you “I will ask if Thus, disregard. in addition to the during your heard discussions there about case being distinguishable in this from that boy’s reputation, about the trouble Pitcock, Webber, those in Wharton and concerning he had a DWI conviction in Ste- holding put in Webber was itself in ques ?”; phens County you in 1953 “Have heard Carey.1 tion in There is no decision them that he was in in discuss trouble per se reversible error rule in this area of Taylor in concerning DWI conviction law, today say enough to that and “Have ever heard County, Texas ?” no error was committed. In contrast to the during anything these discussions concern- Wharton, in questions Pitcock and ing the trouble that the defendant was in inject in the instant case did not an in Wayne Pitcock DWI assertion of Stephens County?” conviction in was, in Wharton Including details a “have for implica- that he is under another indictment does not create an however, Carey, improper question give thorough 1. out- an did not overrule Webber disregard disregard right. Compare Carey. to instructions instruction as was done concurring opinion Carey, in each of those cases. A careful trial See also judge seeking effect of to remove harmful record, have been examination the State. The questions tion of fact. Such decisions, prior flecting like attack in the close of direct examination upheld against as, through counsel Villarriel v. such answer, challenged appeal and Uresti v. on its 654, 295 S.W.2d In Ur- 189, 319 follows: that you heard esti “Q. Now, in the that a person “[H]ave event broke and one Frank Guerrero Raul Uresti receives, eight year sentence say let’s Drive-In Theater on the the Lackland into year say or a ten sentence —let’s a ten June, held 1956?” was day 26th year pro- sentence and that sentence is of the rumored event despite the details bated, eight years and that or nine from question. In Villarriel on in the included probation, probation the date of the that rehearing several motion length is revoked. What is the of sen- charge constituting a direct upheld as not tence that the offender is sentenced to in The most de- the incident occurred. that penitentiary? questions, those
tailed of years. “A. Ten night before or within that either the words, all other he does it even nights before he was arrested two or three out the though he almost lived 2, 1956, he a four- took February probation; is that correct? country girl white out in the year-old teen “A. That is correct. country night in the all kept her out going object “MR. I am KINNE: the instant case car?” The word, it all.’ ‘does excessive detail than those contains no more “THE COURT: Overruled. Villarriel, and does Uresti “MR. Pass GAY: the witness. charge not constitute a direct that the inci- CROSS EXAMINATION in this occurred. We hold the dent BY MR. KINNE: improper. case was not “Q. Now, Taylor, if this individual grant- motion for Gay has talked to about had that Mr. is set prior judgment and our of reversal ed revoked, you don’t mean to probation appellant’s re- aside. We will now address said, all,’ say ‘does it don’t —when maining error. grounds of goes down there and say mean to ground appel In his second of error years— serves ten challenges question put lant to him on me, “MR. GAY: Excuse Your Honor. inquired into the cross-examination object something I to that. That is Appel surrounding facts another offense. proper question for examination is not a lant had first testified on direct examina jury, before the and the law does not *7 not commit the other of tion that did subject permit delving into that away fense and that he was over 300 miles jury. testi Having when it was committed. first it. “MR. KINNE: He ask [sic] surrounding that of fied about the facts going am sustain “THE COURT: I fense, cross-examine him on the State could objection unless this witness has subject. ground of error is expertise that he has in the field. shown overruled. Well, “Q. Kinne): (By Mr. do error, grounds of In his next two know how much time an individual jury complains prosecutorial appellant serves, year on a ten sentence? yourself, ruling was instance no argument. In one object, To which I Your- in the other objection, on the and secured Honor. request all the relief he appellant received grounds? “THE what COURT: On for review. Nothing presented ed. I grounds may “MR. GAY: On the — the bench with Mr. Kinne? approach complains Finally, appellant Yes, “THE COURT: sir. probation officer on cross- question put to (WHEREUPON, counsel approached ALEJOS, Appellant, Charles F.
the bench and a had out discussion was hearing of the of the the court reporter) Texas, Appellee. The STATE of I will “THE COURT: sustain ob- No. 52789. jection. Court Appeals Criminal of Texas. Kinne): Alright, (By Mr. April Taylor. regard Gay’s With to Mr. On Rehearing Sept. all,’ quest the words refer- using ‘does sentence, ring year to a how much ten
time —how much of that sentence he ac- may
tually years? served be left in ten
Depends what the upon Board of Pardons decides; Austin,
and Paroles in Texas
that correct? less,
“A. That is correct. It could
yes.”
In his appellant acknowledges brief that no
objection question, was made to the
urges light fundamental error
court’s It will instructions. be noticed discussion at bench was not record-
ed. Because no raised to the objections prior
last to both sustained, pre- we will not
sume that third in viola- ruling
tion of whatever and instructions discus- the bench
sion, and we will not No find bad faith. ruling throughout
adverse was secured questioning.
line of ground of error is overruled. grant- State’s motion
ed and the is affirmed. PHILLIPS, JJ., dissent.
ROBERTS