*1 857 prove then that she had convicted been years of murder before the over twelve Appellant, PATTERSON, Kenneth Lee offense, commission of the instant unless prior showing
there was first a that such Texas, Appellee. STATE of The conviction was not too remote due to a No. 47750. felony of a or conviction of misde- involving turpitude meanor morаl occur- Appeals of Texas. of Criminal Court ring since said 1 Branch conviction. 13, March 1974. Ed., 210, 190, p. p. sec. sec. Rehearing Opinion Dissenting on Denial of May 22, 1974. “The of appellant’s prior con- prejudicial
viction was of a nature and
its admission in evidence calls for a re-
versal.” Blessett,
In interrogated accused was
in the absence of about several
misdemeanor convictions not involving
moral turpitude, and the trial court stated proof of such misdemeanors “takes
this out of the general regard rule with
remote stated, convictions.” As above
Court held that an intervening conviction
of a misdemeanor involving moral tur-
pitude perform would not that task.
We hold that under the fact situa case,
tion in this trial court erred to prejudice appellant admitting at guilt
evidence stage impeach for felony
ment the conviction of years
where 12 elapsed months had be
tween his prison release from and the trial.
In disposition case, view of our it
is not necessary pass that we on the other
contention raised in motion. granted. motion is judgment and the reversed cause
is remanded. approved by
Opinion the Court. ODOM, JJ., dissent to
DOUGLAS of this for the rea- reversal conviction opinion
sons out in set sub-
mission. *3 Wilmarth, Boardman, Don A.
Tom Dallas, Mitchell, for Lawrence B. Wade, Atty., and Robert T. Henry Dist. Dallas, Atty., D. Baskett, Asst. Dist. Jim Stevens, Buddy Atty., Vollers, State’s Austin, Atty., for the State. Asst. State’s OPINION MORRISON, Judge. murder; punish- for
Conviction ment, life.
Appellant’s first contention refusing grant trial erred court upon admission аn oral confes- mistrial compliance sion not taken Art. 38.- 22, Vernon’s Ann.C.C.P. following introduced the testi-
mony on cross-examination State’s Burks, witness Officer to-wit: “Q You came in and said T want truth,’ truth, nothing but right? Yes,
“A sir. right. “Q you All When said this to what, [appellant], Patterson if Mr. you anything, say did he ? “A He told me that he understood that like his His father. father policeman had been a and that’s all his father еver wanted truth.” examination, On re-direct the State elic- following ited the testimony from this wit- ness, to-wit: Now, "Q he [appellant] comment father, made about his could jury tell the what ? he said by understood, relating to the he ther said “A me that He told father; subject admissible virtue like his his father matter became I was question. Appel- all he counsel’s policeman thаt’s attorney, lant’s introduced self having was the wanted truth. ever serving appellant was statement that moti- tell he had he then Did truth, position is in vated to tell the [Emphasis this woman? killed object when the balance conversa- Added] truth, tion as to version of Burks, is as related introduced to Officer Yes, sir, he did.” Appellant’s broad State. objected to this Appellаnt then on cross examination would even have au- 38.22, supra. being a violation of the oral thorized witness to relate con- disregard instructed court fession. asked the witness re- *4 denied mo- testimony, but late what to him. appellant the said The tion mistrial. for a appellant position complain is in to no in when the asks the witness effect State inquired оf Appellant, having the witness question complete to to a that the answer him, appellant told is no what it was the appellant previously posed. had appears that position complain. to the immediately the oral followed confession Furthermore, appellant the failed to by the statement elicited object рrior the witness’ If to answer. Appellant on Roman relies timely objection, there had been a there In that Tex.Cr.App, 503 S.W.2d only have would been the but no case, attorney asked the wit- defendant’s on evidence the oral confession. if an informer ness on cross examination cannot wait if the will be to see answer fa might had C. be in the de- told him that objects. J. vorable before he The record is ar- apartment fendant’s when informer silent as to good cause for failure to Thereafter, over defendant’s rived. timely object. upon appel It is incumbent hearsay objection,' on redirect the witness lant to show good reason for the failure to testify that informer was allowed to timely оbject if he desires to avoid a waiv been told him on occasion he had another er of the also matter. We note apartment to the had seen defendant’s and disregard jury court instructed the to quantity a of marihuana and had large oral confession. rolling, smoking seen and C. defendant J. and packaging it. complains that the engaged imрroper jury argument. The there held that the rationale Court argument in question is as follows: V.A.C.C.P., 38.24, permit of of hearsay of information introduction . . . “MR. And ORMESHER: criminal activities since defendant’s progressed point of no he’s to the return. they subject than involved a different case, If look at the facts of this portion covered conversation of thing see that’s that Ken- can one brought by the defendant. out to the degenerated neth Patterson point to the worst of where he’s almost case, however, the In the instant killers, those that would eat sadistic appellant on cross ex introduced human flesh. appellant had told amination that Offi he wanted to tell cer that all Burks Honor, “MR. Your for ATWOOD: the offensе under investi the truth about Heaven’s sake— investigation gation. The offense under “MR. I base on the appellant a for which had ORMESHER:
was murder' case evidence he— here when charged, anything fur- previously been line of The first the record. Honor, I was outside may it Your ATWOOD: “MR. on fair argument comment the above of coun- objection to the remark have an produce a doctor appellant to failure sel ? physical abuse. verify his to claims Yes, sir. “THE COURT: appear do following lines two record, re- not call for but do outside the ask I “MR. ATWOOD: in his brief Appellant states versal. disregard it. physical abuse symptoms there were objection. “THE COURT: Overrule nothing nurse could add and doctor or then whether The fact evidence. I have based “MR. ORMESHER: of how produced a doctor or appellant you saw here in these comment on what many were or nurses available doctors today, biting of human photographs appellant any was irrelevant issue away from what flesh. It’s far in this this case. The statement of facts about, talking the worst sadistic case runs in оf two thousand four excess killers.” forty-five witnesses pages. hundred Some Dr. Hoffman had testified nearly The trial lasted two were called. breasts of the had severed deceased been see weeks. fail to how could We body from that a bite mark was have been harmed this one short-lived the severed left He breast. testi- further jury argument instance of оn this relative- *5 placed fied he appellant’s a mold of ly insignificant matter. teeth on the wound and the mold fit the wound. Appellant grounds in his next two complains allowing of error of court’s the appellant only a gener made Dr. Grigson testify as a rebuttal witness objection, al which is not sufficient. Ale 46.02(2) of (f)(1) violation V.A.C. jandro State, v. Tex.Cr.App., 493 S.W.2d C.P. and the Sixth the Fеd Amendment to Also, by quoted noted the argu eral Constitution. hereinabove, ment repeated es trial, Prior Grigson, psychiatrist, Dr. a sence the argument objec conducted a appel- mental examination of have, however, tion. We reviewed the evi lant at request. the State’s The trial court dence of Dr. Hoffman, who described its apрellant’s own objec- motion over deceased, condition of the and find a pre-trial sanity tion held hearing with murder was of such a brutal nature that a returning finding ap- verdict argument complained of, error, if pellant to be “sane at the time of this not such as to for a call reversal of this trial.” conviction. During the trial on a the merits before complains jury, different appellant a called as following closing argument of the State: witness Siegel, Dr. a psychologist. Prior portion to the substantive of this witness’ you “Did have doctor come down and testimony, the court admonished tell jail from and don’t think we’re counsel as follows: not covered with nurses up and doctors there that can come еxamine people. Counsel, “THE . COURT: . . you’re
think opening up area if go certainly into it the State would be The court overruled appellant’s objection entitled to call rebuttal witnesses. argument was outside the record. Appellant argues that argument such Siegel Dr. opin- then testified that in his prejudicial to him on the issue of the particular ion the crime in coercion of the written confession and that be out of character for type of personality gave and he his reasons for ar- of Defendant’s teeth wound, on the riving at this conclusion. the mold fit wound. The doctor ad- might mitted that there other persons The State on Grigson, rebuttal called Dr. whose teeth would match the bitemarks. аppellant who testified that has a socio- pathic personality disorder; appel- Dr. Bertz made a second cast of James type lant’s personality such he the Defendant’s He teeth. stated that exactly type would commit of crime by wound had have five been made for which he charged;- and that he teeth like the Defendant’s. The wit- anger has tremendous toward women. that, ness amputation stated due to and is this appellant to which ob- factors, other on the breast marks jects. by could have either shrunk or stretched as much as a of millimeter. %o’s
By introducing
Siegel’s
Dr.
testimony,
appellant
any objection
waived
to Dr.
Beaver,
Defense called Dr.
who
Jim
Grigson’s
testimony.
State,
Brown v.
plaster
mold
unable match the
Tex.Cr.App.,
8(J3
handwriting examples
ODOM,
compellable.
Judge
to be
(dissenting).
requiring
hold
We
a defendant’s teeth
judgment
should
reversed and
marks is
compellable.
likewise
the cause
appellant’s
remanded on
first
ground of error.
urges
in
next
error
the admission into evidence of
I dissent.
comparing the teeth
de
marks on the
body
ceased’s
marks
teeth
ROBERTS,
joins
J.,
in this dissent.
mold,
on the
because the test results were
not
ON
sufficiently scientifically
APPELLANT’S MOTION FOR
proved for
reliability. We held similar
ad
REHEARING
evidence
State,
Doyle
missible in
v.
159 Tex.Cr.R.
ROBERTS,
Judge (dissenting
part
310,
objection goes
We overrule State, Tex.Cr.App., S.W.2d Murray v. in and You came said T want 13, 1974). February There (Decided truth,’ truth, nothing but the deliberately showing is no *7 ? right or suppressed destroyed or the evidence Yes, “A sir. reasonably it could been even that hаve preserved. you to “Q right. said this All When what, if [appellant],
Mr. Patterson say ? anything, you did he to complains that jury charged at the improperly the court understood that “A He told me that he issue trial on the stage of the guilt the His father like his father. I was haveWe and without malice. murder all policeman a and that’s been had is malice the issue of held that previously the wanted was his father ever the rather than punishment the proper on truth.” However, absent of the guilt stage trial. examination, elic- the State re-direct On was the matter objection, this wit- following from ited the Tex.Cr.App., 495 State, v. Cobbs waived. ness, to-wit: W.2d Now, [appellant] he “Q this comment father, you could his error, judg- the made about no reversible Finding jury thе he said ? tell what isment affirmed. ap understood, illogical say is to that because the “A that he He told me pellant father; thought his father of the officer as a father- I like his was image, always his he and that own father a that’s all policeman was truth, sought oral at out the confession the wanted was truth. ever subject. point light the same sheds on you that hе had Did then tell “Q he (Tex.Cr. Sanders v. S.W.2d [Emphasis killed this woman? opinion App.1970). majority the What added] original the fact submission overlooked is point in subject involved at this Yes, sir, “A he did.” coercion, if the the amount of record was appel- the majority opinion states that The any, writ prompted which he “that all wanted told Officer Burks lant ten confession. un- about оffense tell truth to appellant intro- investigation” and that der State, supra: As was stated in Roman was motivated the fact that duced “[he] purpose provision “The this [Art. agree that I cannot tell the truth.” 38.24, is possi- to reduce the V.A.C.C.P.] statements. supports such actually record bility receiving of the fact finder a false prior reading A record reflects impression hearing from the evidence of following colloquy quoted above to the conversation, only part writing, a of Burks occurred: cross-examination theory act or declaration. The behind rule allowing into “Q first walked you When in the hear the rest of the Patterson was conversation on and Mr. door the. room, you subject picture tell the whole will be interrogation him, out, please, removing misleading filled any said to us what ef- in- may which have occurred from ?sir. fect only portion troduction of con- officer police him I was “A I told Obviously purpose versation. truth; I I interested by receipt achieved balance of truth anything but didn’t want subject. conversation on the same But permit from him. under this rule the introduction portions of other of such a conversation nothing but truth “Q The wholly initially unrelated the matter ? c truth gone into cannot contribute achieve- purpose (Em- ment of the rule.” Yes, “A sir. phasis supplied the first instance want didn’t him you tell Did only) lies ? damn any more majority opinion failed to it “mislead- state what considered to didn’t him I tell probably did want ing effect” which the left. lies, sir. yes, any to hear subject the voluntariness *8 question confession and the written Mr. Well, you said “Q when way in no by the and answer elicited pleas- in a say it did Patterson light subject. The any shed on that error tone? ant compounded original submission interview, ques- I told the broad statement that “A In a matter me, the wit- tion authorized lie to “would even havе him to want I didn’t him ness relate oral confession.” truth.” I wanted question impro- mediately recognizing be with- obviously asked 1. The posed, prosecutor im- drawn. question priety Therefore, having concluded
38.24, supra, has application to this Randolph COOPER, Appellant, v. ground, portion majori- ty opinion relying upon this article au- Texas, Appellee. The STATE оf thority for disposing No. 48466. first ground of error should be overruled. Appeals Court of Criminal of Texas. Further, I cannot conclude that the ref- June erence to the oral confession consti- would tute harmless error presence because of the
of the written confession. As has been
pointed out, very subject
here voluntariness of the written
confession, and the had before it evi-
dence of Certainly, coercion. reference to
an oral logically confession would serve to
bolster credibility of that written in-
strument jurors. minds of the this,
Despite I cannot conclude
cause must be reversed point, on this since
the record contains at least one other ref- confession,
erence to the oral a reference objected
which was defense polygraph
counsel. A examiner was testi-
fying and the following occurred:
[Questioning by prosecutor] you left, anyone After did contact
you? sir, Yes, Canty poly- Mr. [another
graph me at the called examiner]
Chariott Inn and told me that Pat- orally [appellant]
terson admit- had
ted.” objection
No to this examina- voiced Thus,
tion. I conclude that since substan-
tially into evi- came objection,
dence error is without reversible
not shown. for re- deny appellant’s motion original majority
hearing, but overrule the upon Art.
opinion to the extent it relied
38.24, supra.
ODOM, J., joins this opinion.