Salazar v. State
432 S.W.2d 957
Tex. Crim. App.
1968
Check Treatment

Joe C. SALAZAR, Appellant, v. The STATE of Texas, Appellee.

No. 41556.

Court of Criminal Appeals of Texas.

Oct. 30, 1968.

433 S.W.2d 957

As we understand the opinion of the Supreme Court in , in its role as arbiter of the punishment to be imposed, appellant‘s jury “fell woefully short” of that impartiality to which he was entitled under the Sixth and Fourteenth Amendments but, as to the guilt or innocence issue, bias with respect to appellant‘s guilt is not shown.

The Texas Statute provides for a separate hearing on proper punishment before the same jury and provides that where the matter of punishment is referred to the jury, the verdict shall not be complete until the jury has rendered a verdict both on the guilt or innocence of the defendant and the amount of punishment when the jury finds the defendant guilty. And in the event the jury shall fail to agree, a mistrial shall be declared, the jury discharged and no jeopardy shall attach. Art. 37.07 V.A.C.C.P.2

Our statute provides that the Court of Criminal Appeals may affirm the judgment of the court below, or may reverse and remand for a new trial, or may reverse and dismiss the case, or may reform and correct the judgment as the law and nature of the case may require. Art. 44.24 V.A.C.C.P.

Also, Art. 44.29 V.A.C.C.P. provides: “Where the Court of Criminal Appeals awards a new trial to the defendant, the cause shall stand as it would have stood in case the new trial had been granted by the court below.”

It follows that this court is without authority to direct a new trial before a different jury on the issue of punishment only.

In obedience to the decisions of the Supreme Court of the United States and in compliance with the procedural statutes of Texas, the mandate issued upon the affirmance of this conviction is recalled and the judgment of conviction is reversed and the cause is remanded for a new trial.

Charles W. Fairweather, Amarillo, by court appointment, for appellant.

Gene Compton, Former Dist. Atty., Tom Curtis, Dist. Atty., Michael J. Hinton, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State‘s Atty., Austin, for the State.

OPINION

DICE, Judge.

The conviction is for rape; the punishment, fifty years.

Appellant‘s sole ground of error is that the court erred in failing to grant his motion for a mistrial after he was asked by state‘s counsel in the jury‘s presence if he had been convicted of a certain felony offense—which at the time was not a final conviction, being then on appeal to this court.

While testifying on cross-examination, appellant was asked the question and the following transpired:

“Q Mr. Salazar, isn‘t it a fact that you have been convicted of the offense of Ex-convict in possession of firearms?

“Mr. Fairweather: I object to that question—(low tones at court‘s bench, inaudible to reporter and recording machine.)

“Mr. Slough: I will withdraw the question.

“The Court: The question is withdrawn.

“Mr. Fairweather: I will make my motion for a mistrial.

“The Court: The Court will overrule it.”

Appellant insists that in asking the question the state violated Art. 38.29, Vernon‘s Ann.C.C.P., which provides, in part, as follows:

“The fact that a defendant in a criminal case, or a witness in a criminal case, is or has been, charged by indictment, information or complaint, with the commission of an offense against the criminal laws of this State, of the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment, information or complaint a final conviction has resulted * * *”

The state concedes that the conviction referred to in the question was not a final conviction on January 8, 1968, the date of appellant‘s trial,1 but insists that under the record the mere asking of the question was not obviously harmful to appellant and therefore not reversible error.

While the question should not have been asked by virtue of the provisions of Art. 38.29, supra, under the record we do not perceive reversible error.

The question was withdrawn and not answered—which fact distinguishes this case from , , and , cited by appellant.

, and , also cited by appellant, in which the convictions were affirmed, are not here controlling.

Prior to the asking of the question, appellant had testified, without objection, to three other felony convictions for the offenses of rape, robbery by assault, and assault with intent to rape, for which he had served terms in the penitentiary.

With such admission before the jury, the mere asking of the question obviously could not have been harmful to appellant and does not call for a reversal of the conviction.

It should be observed that under the provisions of Art. 44.23 of our Code of Criminal Procedure, this court is under the duty to determine appeals in criminal actions “with due regard to the rights of parties and proper administration of justice, and no affirmance or reversal of a case shall be determined on mere technicalities * * *”

A reversal of this conviction for the asking of the question would be on a mere technicality, as upon another trial with the conviction having become final appellant could be asked the same question.

The judgment is affirmed.

ONION, Judge (concurring).

I concur in the result reached. The error here is clearly recognized but held not reversible error. I would go further and limit this holding to the facts here presented.

Otherwise, as appellant‘s able counsel has pointed out, the legislative intent expressed in Article 38.29, V.A.C.C.P., will be easily thwarted. If a question in violation of such statute is asked and answered without objection, this Court on appeal would hold that no error appears. If such question is asked and the defendant forced to object in presence of the jury, then the prosecutor may withdraw such question citing this case () as authority to show the absence of reversible error. Forcing such objection in the jury‘s presence could only be helpful to the prosecution and harmful to the accused. In fact, such objection may be more harmful to the accused than any answer or explanation extracted from the defendant on the stand. While I cannot imagine a prosecutor deliberately following such procedure unless acting in bad faith, it should be made clear that this case is not authority for him to do so.

Notes

1
The judgment of conviction was affirmed by this court on January 24, 1968, in .
2
Prior to the 1965 Code the statute provided that if the plea was not guilty the jury must find that the defendant is either “guilty” or “not guilty” and “they shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty.” Art. 693 C.C.P. (1925).