Poore v. State
524 S.W.2d 294
Tex. Crim. App.
1975
Check Treatment

*1 (Tex.Cr. S.W.2d 478 Curtis

App.1973).

Appellate might other counsel have differently, tried the case but that does not inadequate representation. show judge The trial during trial. He heard the evidence. He also the testimony heard on the motion for new trial.

We hold that has neither he had inadequate representa shown that counsel, a legal tion of violation of a duty, nor that the trial abused his discre overruling motion for new trial. affirmed. POORE, Appellant, A. John Texas, Appellee. The STATE No. 49645. of Texas. Appeals of Criminal 18, 1975. June *2 Antonio, Vollers, Jim D.

San Atty., State’s David McAngus, S. Asst. State’s Atty., Aus- tin, for the State.

OPINION

ROBERTS, Judge. by robbery convicted Appellant a punishment assessed assault years’ confinement. five complains grant- of the court’s Appellant prohibit- motion in limine ing of shoplifting convic- introduction ing the for against the State’s main witness is impeachment purposes. joined The issue by whether or not the claims the witness set conviction was later himself competent are establish that aside not final and could conviction was for not be used We met are at the outset with question threshold of whether or not the issue properly has been preserved re for view. The dissenters would affirm because appellant’s ground of pre error was not served below. We think the error was clearly identified and consistently preserved in several instances. It is true that a de rely solely fendant cannot on his motion in limine preserve error in the inadmissible evidence. He object must an offer specific evidence and obtain an ruling adverse at the trial. Brazzell v. State, 481 S.W.2d 130 (Tex.Cr.App.1972). But here the is complaining of the exclusion pursuant of evidence State’s motion limine. case, In this mere offer of followed an ad verse ruling, sufficient to preserve the question for review. dire, On voir the State’s judicially Stulb, Jr., appointed, G. Joseph admitted his conviction and appel- City, appellant.

Universal lant offered the final court-martial order Butler, Atty., Dist. Rothe Ted C. Nick impeach the State’s witness and invited K. Chapman, Attys., and David Asst. Dist. papers State to offer showing that the con- permitting cases witness so impeached to reversed, viction had been but rehabilitate himself on redirect examina- judge rejected such proof offer of stating: Jackson v. tion. 33 Tex.Cr.R. “Well, I am going its admissibili- (1894); S.W. Green 62 Tex. ty point.” at this Chappel Cr.R. S.W. 126 there ruling Thus adverse 136 Tex.Cr.R. *3 judge. Moreover, trial during the trial the State, and see Modica v. 94 Tex day, a next filed written Motion 403, (1923) .Cr.R. 251 S.W. 1049 in which the for Reconsideration of State Motion in Li- witness, who had impeached been by Discovery, attaching mine and for the showing a court-martial for offense com- conviction, record of the witness’ but said mitted while he was in the Army was al- was denied to which the motion defendant lowed to rehabilitate by himself testifying Thus, excepted. appellant has carefully had on redirect received an honora- ground his of error preserved for review by discharge. Even impeach- ble when such Court. ment was limited to the showing of final convictions, witness, the the in sound discre- question presented The for review judge, of tion allowed to ex- straightforward one, ais it appears but plain the protest circumstances or his inno- to never have been by addressed this Court. Chappel State, cence. See v. supra; 166 stated, Simply it is whether the witness’ 211, A.L.R. 231. It has been held that a prior conviction was impeach admissible to impeached witness by prior a a showing of or testimony him whether his own denying right conviction had the a par- introduce of finality the conviction rendered it don for that offense to bolster his credibili- disagreement inadmissible. There is no State, ty. v. 95 Gaines Tex.Cr.R. 251 a felony conviction or misdemeanor (1923). Bernard’s, Austin, S.W. 245 Inc. v. involving conviction moral turpitude, if not 256 (Tex.Civ.App.1927). 300 S.W. remote, too can used to impeach a wit 38.29, credibility. Art. ness’ Vernon’s Ann. re But the cases involved preceding C.C.P.; State, Rivas v. 501 (Tex. S.W.2d 918 whose of a witness convictions habilitation Cr.App.1973); State, Nichols v. 494 S.W.2d jury. to the already been made known had A misdemeanor should such rehabilitation Unquestionably, for theft conviction involves moral turpi In the limits. within reasonable be allowed tude can be used for impeachment. however, fact of bar, conviction case at State, Avilla 493 S.W.2d 233 (Tex.Cr.App. jury outside was offered 1973); State, Martin v. 491 S.W.2d 928 of its question admissibili determine (Tex.Cr.App.1973). A conviction which has the witness State contends The ty. reversed is not been a final conviction and deny finality its competent to then cannot be used for availability impeachment. But for thus its (deliv Baker v. See by the would have at urged State rule April 1975) Ringer ered two results. In first least unworkable (1938), Tex.Cr.R. S.W.2d 654 in impeached by prior any place, witness appeal convictions on held which were inad claim such simply could convictions impeachment purposes. missible for reversed, suspended, been had convictions appealed, etc. and were therefore 732a, probated, passage Prior to the of Art. V.A.C. impeachment, despite (now 38.29), in 1951 unavailable C.P. Art. the fact that a self-serving unreliability such of inherent charged by indictment, witness infor- who party Secondly, complaint or declarations. mation with the commission of placed impeach crime to impeach a was admissible him. having prove of position impossible gave long part law in rise a line This of case, logic of this exception non-existence fact—in this is evi showing papers requires proof reversal of the The best evidence rule witness’ dent. conviction do not exist. copy These undesirable a written of an instrument because by by results could be avoided adoption superior reliability its over the recollec rule that witness is competent of a witness “as to its contents and tion by parol evidence finality meaning.” supra. Overton v. his convic See for an However, offense. When the the same indicia reliability also impeaching has party established the conviction, fact when a witness testifying are while either witness’ prior unlikely own admits his conviction. It is or tendering and sentence to that the witness is mistaken about the con court, the burden should then or that he would shift to the viction admit a con offering the party witness to viction when none had introduce occurred. It is in his competent, documentary evidence showing protect self-interest himself from *4 that conviction is not impeachment final. This and his character from applying seemed be impugned. this An admission reasoning prior in of a convic State, v. Sipanek 100 is an against Tex.Cr.R. admission that 272 self-inter (1925) 141 required where it S.W. a est. witness prove the fact pardon of his Testimony that a conviction has proclamation, Governor’s by parol and not does not been reversed bear the same indi- evidence. And more recently, this Court reliability. cia Such testimony is excul that

held a prior conviction to patory self-serving and it is likely more impeach a error, defendant was not even testimony that such would be given falsely. though subsequent voir dire examina Hence, the rationale adopt for the rule we tion revealed that the sentence had been today: that documentary evidence is re suspended and the conviction later set side. quired the finality of a conviction State, Smith S.W.2d 409 (Tex.Cr.App. impeachment introduced for purposes. 1966). We held that the defendant had the of affirmatively burden proving that We hold that the burden was on the was set and, conviction aside in the absence to show State that its witness’ conviction proof, of such its admission was not error. final, not cf. supra, Smith v.

that failed to State meet this burden. application strict of the best evi In the absence of such competent rebuttal A proof rule prior dence of a conviction we must assume that the convic require production copy tion shown the court-martial records was official document object an since the of the Ray, final. McCormick & Texas Law of proof Evidence, is the contents of judgment Sec. 98. In the state of this Wigmore, Evidence, conviction. 4 record, Sec. 1270 the exclusion of the conviction was (Chadbourne 1972). rev. See Overton v. reversible error. Since the complainant state, 490 S.W.2d 556 (Tex.Cr.App.1973). only witness implicate was the appel However, exception to this rule has been only and the lant witness to ap contradict adopted Texas, in Johnson v. testimony, pellant’s error was harmful. 828 (Tex.Cr.App.1970), many S.W.2d and in judgment The is reversed and the cause jurisdictions, other that a may be for a remanded new trial. impeached prior with a conviction on the basis of the witness’ own admission of that DOUGLAS, Judge (concurring). conviction, as was done in the case at bar. required is not then that copy

It of the I that the appellant concur properly judgment of conviction be produced. presented concerning evidence of the witness to the

court-martial part The of the opinion holding that during the trial. in the court-martial proceeding should have been correct, admitted is but to The State’s motion in limine was filed part states, which apparently dictum, on March March granted 1974. On the witness could testify that the trial, 21, during filed a motion conviction reversed, I cannot agree. reconsideration of the motion in The jury could pass upon his credibility. discovery copy with a and for limine The best evidence rule should not ap- order attached. This was de- court-martial plied. Johnson See 21st of March. on the nied During the trial and outside the jury, the witness testified ODOM, Judge (dissenting). in 1972 for theft of convicted had been for the defense Counsel stated property. majority misstate appellant’s ground he had the court-martial order and if of error. Appellant contends the trial court were changed other there orders this in granting erred the State’s motion in li- he would objection. have no order Before argues mine. He then ruling statement, finished his the court counsel harmful prevented because it him from and refused to evi- interrupted admit proving shoplifting conviction of a dence. State’s witness for The ma- *5 objection in a jority as an This was sufficient treat the issue as one of erroneous jury presence the of the hearing outside exclusion of admissible evidence. The 40.09, 6(d)(3), Article Section V.A.C. record does not under reflect any such ruling. Having failed to offer C.P. admissible evidence and secure an adverse ruling, nothing is This is like Powers v. 456 S.W.2d presented for review. The mere granting There, during the of a motion in limine is not sufficient. Nor- merits, the jury trial on the was retired and man v. 523 S.W.2d Duran court denied a to suppress. the motion This Tex.Cr.App., 505 S.W.2d 863. was held be sufficient as an objection it was during the because trial. The majority reverse this on case the In case the filed his conclusion that a document showing the to reconsider the motion granting of witness’ conviction was improperly ex- motion in limine. It was also brought from dispute cluded evidence. I that hold- of the the attention trial court ing outside the because the record does not show the jury while document to evidence was be purports admissible. It during introduced the trial. be a record of a conviction, court-martial but it is neither authenticated under the appellant complied with Article 40.- act, official documents nor identified under 6(d)(3), supra, and objection Section act, the business records nor in any other exclusion of the to the evidence was suffi- shown to be way admissible. From the he properly and cient showed the court before this appears record Court it to be jury. what evidence wanted before the nothing more than hearsay. For this rea- limine, Motions in whether they be mo- son I would find the record fails to reflect suppress tions to or motions to introduce any admissible evidence was tendered objections evidence, evidence or should and excluded the trial court. No error alike. The thing be treated main to be shown. has been considered is that should have notice sufficient of what a defendant is I take issue with assertion in also complaining during pass about the trial Douglas’ Judge concurring opinion that Ar- upon 40.09(6)(d)(3), V.A.C.C.P., the matter. In this case he did. applies ticle statutory provi- facts of this case. That to instances when speaks specifically sion “rules . . court . evi- (Em- . admitted . .” shall be

dence as added) Appellant’s complaint, phasis by majority, is directed to the construed of not the admission exclusion 40.09(6)(d)(3),supra, Article does evidence. 40.09(6)(d)(l) (2), apply. Article not V.A.C.C.P., apply, require do that after court, by ruling of

evidence is excluded evidence that would been have offered reporter, before adduced or shall permitted by if court in its dis- party, cretion, a concise statement may make It the excluded evidence show. what appear not either method does No in the instant case. such offer followed reporter hearing out before any ap- excluded evidence jury appear Neither does it pears. statement of permitted concise court show, the evidence would because it what e., point, or upon i. whether precisely conviction, it a final would show dispute arose. stated, not re- does the record As above *6 excluded, evidence was that admissible flect the reversal. support does not I dissent. Accordingly, PESCH, Appellant, William Paul Texas, Appellee. STATE Nos. 49976. Court of Criminal Appeals Texas.

June 1975. Rehearing July Denied 1975.