David Allen RUTH, Appellant, v. The STATE of Texas, Appellee.
No. 49706.
Court of Criminal Appeals of Texas.
May 7, 1975.
Rehearing Denied May 28, 1975.
The Court also stated in Jones:
“. . . acts and declarations which are a part of the res gestae are admissible notwithstanding the fact that they may not be admissible as confessions or admissions, for the rule of res gestae is independent of, superior to аnd cannot be limited by the rules relating to confessions or admissions after arrest. Spann v. State [Tex.Cr.App.], 448 S.W.2d 128 and cases there cited. See also 24 Tex.Jur.2d 137, Sec. 600; Fisk v. State, Tex.Cr.App., 432 S.W.2d 912.”
No reversible error is shown. The judgment is affirmed.
ROBERTS and ODOM, JJ., concur in the result.
Percy Foreman & Dick DeGuerin, Houston, On appeal only, for appellant.
Carol S. Vance, Dist. Atty., and James C. Brough & Jim Ezer, Asst. Dist. Attys., Hоuston, Jim D. Vollers, State‘s Atty., and David S. McAngus, Asst. State‘s Atty., Austin, for the State.
OPINION
ODOM, Judge.
The appellant was convicted of murder; punishment was assessed at fifteen yeаrs.
Several grounds of error are raised pertaining to placing the appellant‘s juvenile offenses before the jury. The record is replete with questions by the prosecutor both stating and eliciting the specific nature of offenses allegedly committed by the appellant as a juvenile and the arrests and dispositions in those cases.
At the guilt-innocence stage of the trial, the prosecutor elicitеd testimony that the appellant had been charged as a juvenile at
At the punishment stage the prosecutor continued discussing juvenile offenses and dispositions. Appellant took the stand and testifiеd essentially that he had never been convicted of a felony and would abide by the terms of probation, if granted him. The cross-examinatiоn by the State began as follows:
“Q. Let me ask you this, David, you have been given at least five probations so to speak, have you not?
“A. No sir, that is not true.”
The рrosecutor then elicited admissions by the appellant of at least three juvenile arrests for specific crimes. It was established thаt the appellant had been arrested for aggravated assault on a police officer and being drunk, for “failure to move on,” and for possession of narcotics.2
In Rivas v. State, Tex.Cr.App., 501 S.W.2d 918, we held that a witness’ juvenile delinquency record may not be used to impeach him. Dispositions under prоceedings against juveniles are never convictions for crime.
“The adjudication or disposition of a child or evidence adduced in a hearing under this title may be used only in subsequent proceedings under this title in which the child is a party or in subsequent sentencing proceedings in criminal court against the child to the extent permitted by the
Texas Code of Criminal Procedure, 1965.”
With regard to the predecessor3 of
The prosеcutor‘s presentation of the appellant‘s juvenile offenses and the dispositions of those cases to the jury was serious error dеsigned to prejudice the jury and to deny appellant a fair and impartial trial. Although there were not proper objections in somе instances, this egregious action by the prosecutor was highly inflammatory and calculated to prejudice the defendant.
“Our Bill of Rights,
Art. I, § 10, Texas Const. , guarantees to every person a fair and impartial trial. This guarantee is one of the fundamentals upon which rests the perpetuity of this government. It is the duty of the courts to preserve and to maintain that right, and this regardless of how heinous or revolting the crime committed may be.* * * * * *
“If there exists in the mind of this court any doubt as to the fairness or impartiality of the trial, it becomes our duty to award a new trial. Without singularizing any one particular fact, but considering all the facts and circumstances shown by this record, there does exist that doubt.” Judge Davidson writing for this Court in Williams v. State, 145 Tex.Cr.R. 536, 170 S.W.2d 482, 489 (1943).
We think it clear from the recоrd that the repeated improper questions of the prosecutor denied appellant a fair trial.
The judgment is reversed and the cause remanded.
DOUGLAS, J., concurs in the result.
MORRISON, Judge (concurring).
I join in the reversal of this cоnviction because of the intolerable conduct of the prosecutor. Such conduct as this record reveals would never havе occurred had the appellant‘s counsel been alert and diligent. When we are confronted with such a case, we should not hesitаte to reverse on the grounds of inadequate representation by counsel. The failure to make the proper objection tо clearly inadmissible evidence relating to juvenile convictions approximately 64 times during one trial could not be construed as trial strаtegy. Ex parte Gallegos, Tex.Cr.App., 511 S.W.2d 510; Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1975).
Notes
“Has your son ever done this [referring to the оffense charged] before to anyone, sir? . . . He has never threatened anyone with a gun before? . . . To your knowledge? . . . With a gun, now . . . Has he ever made an assault upon anyone with a gun? . . . Or attempted to make an assault? . . . How about a police officer? . . . To your knowledge, hе has never assaulted a police officer. . . . Is that what you are telling us? . . . With a gun? . . . Let‘s don‘t play on words, Mr. Ruth. An assault. We have talked about the gun and talked about an assault. Let‘s don‘t play on words. . . . Is that the only assault he made on an officer? . . . It‘s your testimony he never made another аssault on an officer and attempted to take the shotgun away from him? . . . Let‘s don‘t play on words, Mr. Ruth. Is it not true that you did know that he made an assault оr attempted to make an assault? . . . Directing your attention back to the time you said he was arrested for being drunk. Was he not charged, sir, with the оffense of aggravated assault on a police officer and for drunk also?”
“Is it not true you were arrested for the offense of malicious mischief and released to your parents? [The record reflects that appellant was 6 years old at the time of this incident.] . . . Do you recall, then, or were you too young, or do you remember when you were arrested for the offense of aggravated assault on a police officer and being drunk? . . . Do you recall or rеmember the offense of being arrested for failure to move and were released to your parents? . . . Well, how many times has your father had to go down and get you, David, or are there so many you don‘t remember them all? . . . Do you remember a time you were arrested for possession of narcotics and released to your parents? . . . Do you remember the time you were arrested on traffic and released to your parents again? . . . You don‘t recall being arrested on that time and released back on February 19th, 1972? . . . Then you remember at least three, is that correct?”