*1 however, record, again we light had en- or not he to whether witness as State, Dykes in repeat said v. what was acts the defend- with gaged homosexual supra: line ant, along this questioning and the case at In the
persisted for some time. pointed has out “This court often bar, questions asked of no such were permit counsel for the state should lived had ever he denied he witness and himself, heat zeal appellant. vilification, trial, to stoop to abuse legitimate is which substitute com- objection no There was nothing argument.” is jury argument and plained of presented for review. error, Finding judgment no reversible insinuations, is affirmed. if such were
While prosecutor, proper, intended were not light that in are to conclude
we unable reversible error. that the error is the record is #1 of error overruled. Ground Next, error oc appellant urges argument closing jury curred appellant argued that prosecutor when SIMMONS, Appellant, Robert Gene perjured uttered appointed and his prayers. testimony blasphemous v. Texas, Appellee. The STATE Chapman made Mr. reflects record beginning near the No. 42716. following statement argument:
of his Appeals Texas. Criminal Court uttering is at moment Mr. Coil "If May 20, 1970. Lord, just about prayer our July 15, Rehearing 1970. Denied perjured prayer as blasphemous a heard come from sup- (Emphasis mouth.” Defendant’s
plied.) argument was concedes the
The State objection points out that improper but the error interposed and therefore presented for review. nothing waived Tex.Cr.App., State, 371 S.W. Bidder v. Van Law, 880; Digest, Texas Criminal 2d Sec. agree. We Dykes State, relies v. 135, and 168 Tex.Cr.R. 325 S.W.2d State, Seay Tex.Cr.App., S.W.2d objections those each of cases timely made.1 unitary Dykes jury State, supra, held trial.
1. In the court flieted at punishment application that an of harmless error rule Here the was assessed complained argument judge stage 'to trial second precluded following in- view of the bifurcated trial verdict.
67 Blaine, Houston, appellant. R. Victor Vance, Atty., C. Dist. S. Carol James Hancock, Dist. Asst. Brough Shelly P. Vollers, Houston, Attys., D. Jim Austin, Attorney, for the State.
OPINION
WOODLEY, Presiding Judge. threats; rape force and offense years. punishment, eight motion, Appellant filed at the time of requesting entering plea guilty, of not that the assess in the punishment event a returned. guilty verdict of probation He also filed written motion for in which he swore he had never been convicted of a in this any other state.
Appellant’s grounds sets brief forth two of error. Ground No. “The Court is: admitting erred in into evidence State’s 3, being Exhibit No. the same a record of a for theft appellant’s objection Louisiana over he was without counsel at the time of such conviction.” Appellant upon Burgett cites and relies Texas, 258, 389 U.S. L.Ed.2d which bars the use of prior conviction obtained violation of Gideon Wainwright, support guilt L.Ed.2d beating perhaps stealing or another of- mean or enhance your wife? fense. Yes, sir. passed “A. has not Supreme Court applies where the rule
whether “Q. Which? *3 credibil- impeach is used two mis- his of a witness in ity have been convicted defendant I “A. testimony. his behalf or own demeanors. fact, been convicted you “Q. In this facts of that under hold We those, beating your wife of both of Texas, not supra, does Burgett v. case you? haven’t stealing,
apply. Yes, sir. theft. Misdemeanor “A. in its case had rested After the state stand appellant took chief and before stealing? that “Q. Wasn’t behalf, through his appellant, his own Well, about law you more know “A. coun- instruct moved court to than I do. allude not to discuss or sel for state conviction had in alleged an fact, theft con- misdemeanor “Q. year or about— “during Louisiana date, you what viction was that year the reason around for know? minor, a was such time defendant I the exact date. “A. don’t recall him as a proceedings against declare petition minor the nature it March 3rd of “Q. have been Could delinquent, de- juvenile that he was him a 1965? delinquent and committed juvenile clared a sir, Yes, probably. “A. training state for an indefinite school period, approximately that he did serve “Q. punishment ? your What was training school eight months state “A. Six months. thereof, Monroe, Louisiana a result says that defendant matters are such “Q. jail? In the was any purpose by for reason it admissible Yes, “A. sir. proceeding denied civil and he was time and he right to counsel at “Q. And what the date of your being indigent an did not waive beating your conviction for wife? represented to be counsel.” “A. I don’t recall. ruling The court’s was: “Q. 3rd, Could that have February premature this motion at “Counsel 1964? However, point. I instruct the they only Counsel use Probably. “A. questions that dis- impeaching method of “Q. your punishment What was play supported by good and are faith that ? and the asking question.” reason for On cross-examination “A. fine. $25 asked and answered objection: “Q. you Have ever been convicted in “Q. (By Hancock) Mr. Have ever any this state other state in been convicted of a misdemeanor past years ten aof involving turpitude in moral offense ? past other state sir, No, years?
ten “A. I haven’t. By turpitude I moral day the 17th the defendant received “Q. Is fact December, 1957, years. con- ten It would show you were sentence of prosecuted its exhibit victed theft offense Louisiana, Parish information filed in the District in the State Court Charles, years ten Parish in Louisiana and St. and received St. Charles an I at hard indictment. submit Penitentiary the State proven the law until labor? otherwise is assumed be the here in same as No, sir, “A. it’s not. person may prosecut- Texas and a not be felony upon information, ed for a (STATE’S EXHIBIT 3 MARKED NO. object reason we to the commission FOR IDENTIFICATION of this in evidence.” *4 PURPOSES.) Appellant was then examined “Q. (By Hancock) you Mr. I will hand counsel in jury’s absence and testified: what’s been Ex- marked as State’s hibit No. 3. purported This is “Q. Simmons, Mr. you are person certified, exemplified be a copy of papers? named in these judgment of conviction and sen- No, “A. sir. tence for the offense that I men- tioned a ago. moment “Q. you Were ever convicted a fel- ony in Louisiana? Yes, “A. sir. No, “A. sir.
“Q. There is photograph also a here. your Isn’t that picture? “Q. you Did any ever do sentence the penitentiary in Louisiana? Yes, sir, “A. it looks like it. No, “A. sir. “Q. What is the date there that picture was taken? [******] “Q. you If person are the named in
“A. says It July particular these papers, you ****** represented by counsel at the time? “Q. This State’s Exhibit 3 also No. No, “A. sir. includes an indicment for that of- “Q. your You waived repre- fense, a statement of the case. sentation counsel? Now, let’s get to the instrument. you
Would reading mind this?” No, “A. sir.” At point appellant’s counsel ob- and the rulings final objections: jected, stating: “If he it wants offer in evidence I think we should have an “THE COURT: There will be more opportunity to look at it.” testimony at all —if the exhibit is re- ceived, it stands or falls as impeach-
Counsel for the state then tendered Ex- ment any hibit to the witness No. 3 and not for to defense counsel and offered facts proved. it in to be evidence. jury’s ap- absence pellant’s counsel offered following ob- “MR. object BLAINE: We the use jection, which the court overruled: of it for purpose impeachment. Honor, “Your objects defendant testimony before the Court now is State’s Exhibit 3No. for the reason he was not furnished counsel. He didn’t purports to be a judgment of conviction waive it. For object. that reason we for an theft, offense of wherein it taken, Whatever action was was taken in No, “A. sir.” rights. We his constitutional
violation of manner. object to the use Rex Ful- The state’s next witness was lerton, rec- charge identification and Objection overruled. “THE COURT: County division the Harris Sher- cords my exception. Note “MR. BLAINE: years the last nine iff’s Office for twenty years fingerprint service in the in.” Bring the “THE COURT: field, that he identification testified who into received having been Exhibit No. appellant’s fingerprints during took appel- evidence, the cross-examination iden- fingerprint noon hour. The card was shown proceeded lant before the jury tified and introduced evidence as State’s following: objection appellant’s Exhibit No. over counsel: you to examine State’s “Q. I will ask you please. Would “
Exhibit No. * * * object to the defendant would examine that? it, any comparison No. of State’s Exhibit admitted, previously 3 that for the oppor- had the “After previously same stated.” reasons tunity to examine No. your posi- is it still Exhibit No. objection, the witness further Without men- the Robert tion that Simmons *5 shown, expert an was qualification whose convic- judgment in this of tioned finger- testified that he had examined the you? felony theft is not tion for prints in depicted Exhibit No. State’s Yes, “A. sir. in fingerprints depicted with the opinion they 4 and in Exhibit No. picture is in “Q. though your Even fingerprints person. the same of papers ? these clearly all of The record reflects Well, my certain that “A. I’m not juvenile relating to a evidence is, picture. I know I assume of- was ceeding the State of Louisiana that’s not me. state; defense, by the fered not “Q. you Are sure that? of by the Exhibit 3 offered and that No. felony regard state in conviction Yes, “A. sir. in the offered after State of Louisiana was application for appellant had sworn in his you are not “Q. you Are as sure that probation that he had never been convicted papers in these the man mentioned felony any state or other of young you are sure that state, and had that he had never testified inter- girl consented to the act of state or been convicted other you? course with felony past years ten of a Yes, consented. sir. “A. She offense, a fact and that was not December, 1957, of day on the 17th “Q. you And this is are also sure felony was convicted of offense papers? you in these theft in the Louisiana and State of Yes, sir, I Penitentiary “A. am. years ten in the received State fingerprinted at hard labor or that “Q. They fingerprinted you in the State in the State Louisiana. Penitentiary, of Louisiana didn’t they? may person is witness A who asked, impeachment, purpose be for the No, “A. sir. felony for a convicted if he has not been turpitude. imputing moral or an offense “Q. fingerprinted Were state, it, by proper proof, If he denies of Louisiana? fingerprints so No. State’s Exhibit such statement may the truth of show State, by expert be were shown 103 Tex.Cr.R. Wright v. denied. fingerprints appellant identical with 534, 281 864. S.W. during made the trial. too is not asked about the time When ground predicated witness remote, error defendant or other upon if he being a fel- cross-examination the conviction for theft be asked on ony penitentiary or that the conviction was had ever been confined State, 21 Appellant Lights information.1 at time ad- on a of crime. no charge having mitted of a Tex.App. (There 428. convicted 17 S.W. prior felony or that he was objection that assessed a term ten years Penitentiary. in the Louisiana remote.) was too compelled answer Ground of error The witness can No. is: “The Court crime refusing erred in appellant’s requested that he has been convicted for a is the turpitude, charge imputing moral if such the conclusion of fact, can be punish- the record of conviction issue of Lee credibility. ment.” introduced attack State, 45 Tex.Cr.R. 73 S.W. hearing At the before the on the State, Tex.Cr.App., 384 See also Parker v. issue stipulated it was “be- de- holding that where the S.W.2d tween appellant and his and coun- fendant on testified his direct examination sel for the State” (1) was that he had never been of a convicted aggravated convicted assault on Nov. fully redirect testified re- $100; and fined (2) convicted garding burglary, carrying pistol on or about March question propounded on cross-examination 1968; (3) aggravated was convicted of as to whether he had been convicted *6 February 3, 1964, $100; assault on and fined burglary negative and his answer did (4) was convicted of misdemeanor theft reversal, warrant though even on March 1965. set case aside and the
dismissed. See also other cases listed Also “retendered into evidence 1 Branch’s Ann.P.C.2d 189. Sec. all already gone of the evidence that had before this concerning other State’s Exhibit No. “exact included convictions this defendant.” copies commitment, of the document of Appellant’s photographs counsel fingerprints and stated he was relative to Simmons, willing stipulate one Robert the Louisiana con- G. inmate former institution, viction, testimony some on that. certified on October 1968, by the Record Clerk of the Louisi- inquired The court then state’s coun- Penitentiary.” ana State you sel : offering “Are that exhibit to this jury for consideration?
The “mugshot” photo- front view or graph of the Robert G. Simmons referred course, “MR. HANCOCK: Of into years commitment for theft to 10 already Exhibit No. 3 is jury. before the imprisonment Penitentiary retender that. We reflects: “LA STATE PEN “THE All right, COURT: will be re-
July 11, 1959” ceived as marked. prosecutions Art. of the 1928 Louisiana Code in a district for court Criminal Procedure as -well as Art. theft instituted indictment or present of the Code of Criminal Proce information. dure of that state authorize criminal stipu- counsel nor waived his that is was not furnished “MR. HANCOCK: And counsel, rights to then constitutional lation of the state. such conviction for will not consider stipulation, your “THE Is that COURT: purpose.” ? counsel distinc- requested charge made The Yes, “MR. BLAINE: Sir.” for between whether the conviction tion shown juvenile proceeding theft was the by the being All the offered foregoing appellant by his elicited from evidence hearing objection, state without at conviction which punishment, appellant called as a wit- appellant denied. re- ness his own behalf and testified garding for auto his Louisiana requested charge refused for he arrested in Novem- theft which was presented court not shown to have been ber, 1957, years He when he was 18 old. charge reading at understanding that testified that it was State, punishment hearing. Whitaker v. juvenile going appear he 905; cases Tex.Cr.App., 421 see S.W.2d money plead guilty; that he had no Article 36.15 Vernon’s Note attorney rep- property; did not have an Ann.C.C.P. him; offered resenting was not attorney an did not tell services so, requested the refusal Even attorney. did not court he want not reversible charge under error. he served no He further testified that Penitentiary at the Louisiana State
time appellant’s There is no doubt that Louisiana, confined in Angolo, at but was re- information in acted erroneous Institution Correctional Louisiana ferring juvenile proceeding. year for and was DeQuincy a little over testimony leaves no doubt released. to the such erroneous information. source of ap- Following the cross-examination upon ap note this connection We regard pellant convic- Louisiana submitted pellant’s the court tion, appel- in evidence the state offered ap probation and counsel motion for in which probation lant’s motion pellant argument urged been convicted swore that had never *7 been appellant had never before find that he felony, stating that appellant’s a counsel any other felony in this or convicted of a objection. had no granted he state, that and recommend probation.2 requested charge The and refused appeal to sought found record on Burgett, supra, Assuming that rule the jury have the instructed: and that under impeachment to extended or other witness a testimony concerning such rule defendant “You heard has never that he and swears in who testifies a conviction for the offense theft im- felony cannot be of a Louisiana in If from been convicted 1957. believe of evidence peached by introduction the time of such evidence that the finger- commitment, photographs and indigent was the conviction the defendant false when prints showing employ and unable and he to except jury provides the recommended 3a 42.12 which tion be Section of Art. proof shall and motion the when the sworn assessed where jury show, in their ver- years, shall and not exceed does find “upon probation never before any has the defendant written dict recommend in this of a motion therefor the de- been convicted sworn made begins,” fendant, the trial other state.” filed before proba- provides: “In no shall further case he against entered, closing testifies he was convicted her the wall and felony and sentenced a term of ten the door She asked him what behind him. years Penitentiary, in the Louisiana he doing inquired he was there and he indigent roommate, was and error her Gale. She whereabouts of Ex- night in the admission spending told him that Gale 3, tainted, though hibit No. is harmless At this time someone knocked elsewhere. California, Harrington error. door, See 395 upon Appellant to the went 284, door, U.S. 23 L.Ed.2d opened complaining witness and Douglas, speaking in which Mr. girl’s Appellant saw hand into which the Justice majority, for the stated: dropped keys and shut again some door the knock door. Prior to the evidence “Our decision based on out, she told Appellant get she against Har- this record. The case there, he was didn’t but stated want him he from circum- rington was not woven she going night her and spend with overwhelming stantial evidence. It sois him replied, ‘No, you’re not’. asked She say that unless we that no violation given had girl who the to whom he error, can constitute harmless Bruton3 your stated, keys he first ‘None and we must leave this state un- business’, it was subsequently her told disturbed.” Marsha, wit- complaining girl and Appellant sat down ness The knew. This court has and relied cited leave, felt get up she and she told him to Harrington v. California and in cases such bad, asleep, but having real been dead seeming this should relaxa- welcome told leaving. wasn’t She made clear he California, tion Chapman of the rule in him, going either leave there’s ‘You 17 L.Ed.2d bra, fight’. dressed in be a She was as a step direction. down and She sat pants, panty hose robe. why Marsha and asked him on the floor prosecutrix, employee The year old had had the door and he said firm, come to of a leading shared a Houston law leave. keys so could given her her she car apartment long two room life her Gale_In lay down witness then complaining The friend the afternoon of next sleep. The on the and went April 3, Gale, floor having job, lost her moved sitting thing Appellant she knew Prosecutrix, automobile, out. had who hand on with his beside her on the floor day. had arranged to move the next robe, He her robe pulling her it. tore prosecutrix recently re- screaming, here’. she out of started ‘Get leased hospital taking from the put and was her He shoved her over on back tranquilizers prescribed by her fingers doctor. throat four one hand her screaming. keep her her from mouth following statement of facts is chok- did him because he was She not bite quoted appellant’s from brief: “The com- also. He ing her and she was scared witness, age plaining years at the *8 stomach she was his in her and knees offense, casually time of the had known the and coffee the couch up shoved Appellant approximately three and one- said he didn’t to hurt table when he want months, having half him at Bodittle’s met alone and and him to leave her her she told Night the night Club. On of the -go get He told her to out of there. rape asleep upon floor her she was ‘No’, he apartment when a the bedroom and she said she was awakened her door, opened loud told banging upon shoved her into the bedroom and slightly again said Appellant standing and saw take off and she to her clothes off, ‘No’, hit pushed open, pushing He then tore the robe there. the door and he States, 3. Bruton 20 L.Ed.2d v. United after initial ad- her and fered no resistance her down on bed and shoved co-operated He made kept and with him. rest of her clothes off. He vances took the crying. He no threats.” slapping her because she was her, holding her down. had sheet across in- prosecutrix Other top he kick him because She didn’t following: cludes she of her. didn’t strike him because She her her slapped was scared. He across threats By his and “Q. force you, you breast gave breasts and stated that women kill that he would moth- her because her your cancer. This scared in fear life? would
er had died with breast cancer. He to death. “A. I was scared immediately slap- apologize to her after ping and said that if she didn’t co- her you you if did not Did think that “Q. operate and be- he would kill her she you? would kill consent that he had her. lieved him. He intercourse with Yes, I did. “A. back, get up, He would and walk off come get up again. walk off come back and and you? harm “Q. Or expecting She told him she was her sis- Yes, I did. “A. ter, up so got placed he and some furni- ture in front of the and she door then for the fact had not been If “Q. way escape apartment. from the throat, your across sheet he had this co-operation most him gave she repeat- you had hit he the fact that killing At him. about five o’clock m. a. you, times, slapped edly several left, the Appellant promised go after she to you, would kill had threatened night. straightened out with him that She in this sexual engaged you have dressed, up apartment, got picked up act with him? and butcher knife to a service sta- went wouldn’t have. He would not I “A. tion away, about one one-half blocks through door gotten have she called the and said that wanted police way in. he hadn’t shoved report aggravated assault. She was examined has a and no other evidence ashamed to tell them she had been She was superficial superficial neck, small later taken bruise a doctor who noticed that she scratch above the scratch bruise above below the left side of trauma. left hospital knee and left n raped. There ankle eye, “Q. “A. [******] acts took leave. Yes, And then the left, It your before approximately testimony? actual 5:00 I could intercourse o’clock get one him to before hour, any injury damage was no evidence Now, finally leave? made him what “Q. vagina. to the that I would him Because I told “A. seeing testified that “The Appellant if he night him that go with out attire, scanty complainant me to leave. promise just would undoubtedly aroused, did became that he go- intention of “Q. her Did tear when he tried roll her robe over, finally ing out him? resisted first but that she ob- agreed have intercourse with him but didn’t have to be No. I knew I “A. upon the moving into jected the bedroom there if I said wasn’t there. He bed; complaining that he never struck *9 night, back that came when her when witness but have scratched sorry.” that I be would her he awakened her and rolled over. She rebuttal, de- - Gale he had all her Called removed underwear after prosecutrix appearance of of- off and she scribed torn bottons robe
75 40.09, 9, quired. when she saw her at her sister’s house on See Article Sec. V.A.C. April of her C.P. 5: “She bruises both eyes patch and she had a on her neck and relying It is clear not appellant she had some on her and she leg bruises briefly ground of error. stated just generally sick.” He trial court erred that the contends If the evidence which state intro- impeached permitting him to be harmless, duced guilt stage at the guilt stage proceedings by the use seriously could hardly be contended felony a void from the 1957 its hearing introduction at the that at State of Louisiana in the time error, would constitute reversible such evi- indigent, such conviction without he was dence as having convictions been counsel, right to and had not waived the re-offered along and admitted with evi- counsel. stipulations dence and as to mis- other offenses,
demeanor
objection.
apparently for
appeal
presents,
This
thus
ques-
jurisdiction,
the first time in
judgment
is affirmed.
Burgett
tion of
whether the rationale
109,
258,
Texas,
v.
88
19
389 U.S.
S.Ct.
MORRISON, Judge (concurring).
319,
the use of a
L.Ed.2d
bars
excludes
offered
While I
the judicial
realize that
trend
credibility
State to
of an ac-
leans
Burgett
Texas,
toward applying
cused testifying in his own behalf absent
supra,
questions
impeachment,
I would
showing
a clear
conviction was
bar,
not extend it to
case at
where
not obtained in
of the rule
violation
appellant
denied
he had been
335,
Wainwright,
Gideon v.
83
U.S.
convicted
in Louisiana and
792,
S.Ct.
The majority simply fails to come to and had been re- indigent.1 The court grips with presented, the real issue sponded by remarking that the State would construe the appellant’s main thrust of proper impeach- limited to methods of argument in connection therewith as re- acting good ment faith. Appellant’s knowledges counsel also stated at in based erroneous time that the conviction resulted from formation. juvenile proceedings which he now ac
76 #3, relating pre- Exhibit to a the trial which
On cross-examination at
18,
conviction,
1969,
appel-
silent
commenced on March
the
Gideon
was
as
counsel.
Further,
the trial
attention
lant
court’s
was
was asked:
directed to the
that the Louisiana fel
fact
“Q.
Have
been convicted
ever
ony conviction was based on an informa
in the
state
this state
other
tion,
indictment,
not an
and
had
that there
past
felony offense?
years
ten
of a
law;
showing
been no
to Louisiana
presumption,
the
of such show
absence
No, sir,
sup-
(emphasis
“A.
I haven’t.”
ing, is that
as in
the law is the same
Texas.3
plied)
appellant’s objection
The court overruled
inquired
a prior
State then
about
permitted
the introduction of State’s
17, 1957,
December
Louisiana conviction
jury
pur
Exhibit #3
before the
the
and he was shown State’s Exhibit #3
pose
impeachment.3A fingerprint
A
ex
exemplified
which
copies
contained
of an
pert subsequently
fingerprints
testified the
charging
information
an
the theft of
auto-
contained therein
identical with known
$350.00,
mobile of the
“a
value
prints
appellant.
charge
of the
A limiting
case,”2
statement of the
a sentence reflect-
on
impeachment testimony
given.
ing
1957,
17,
conviction December
of punishment
years’
assessment
10
at
penalty
of the
stage
proceedings,
At
peni-
confinement in the Louisiana state
stipulate,
appellant
when
refused
tentiary, a photograph
finger-
and a set
part
re-offered
State’s Exhibit #3 was
prints.
appellant’s “prior
of the
record.”
criminal
37.07, supra.
Article
It was available
See
It is obvious that at
point,
if
even
assessing
purpose
to the
for the
correct,
State’s contention
appel-
punishment.
lant’s answer was
not
truthful —he had
felony
past
convicted
in the
ten
Supreme Court wrote:
In
years.
(cid:127)
jury’s
of counsel from
appellant
“Presuming
absence
waiver
testified
Carnley
examination
impermissible.
record is
counsel. He denied
silent
884,
506,
he
Cochran,
had been convicted
82
felony
of a
Louisi-
S.Ct.
v.
369 U.S.
ana, but
a conviction
subject
permit
admitted
To
been the
77 change to see right prosecutor the accused effect whether the would vigorous Judge of deprivation suffers anew from the his mind. In dissent Roger right. Foley, relying part upon that D. Peo Sixth Amendment ple 1967, 204, Coffey, v. 67 Cal.2d 60 Cal. prior criminal “The admission of a 457, 15, rule, Rptr. argued: 430 P.2d “The constitutionally in- conviction which it, conviction, as I prior see is that void v. under the standards of firm Gideon Gideon, any pur under cannot be used for Wainwright inherently prejudicial poses, proof guilt, pun of of enhancement say in- are and we unable to denying impeachment, ishment or without the con- disregard structions to it made process.” due beyond a rea- stitutional error ‘harmless meaning Judge doubt’ within the not Foley sonable could conclude California, error, Chapman being 386 U.S. di- v. State of federal constitutional 18, 824, mension, necessarily 87 L.Ed.2d error.5 17 705.”4 harmless Subilosky of Massa- (D.C.1969) In v. Commonwealth In Tucker v. United States chusetts, 691, 1376, F.2d use F.Supp. 412 United States 299 held the Court Circuit, Appeals, Court of First noted of constitutionally prior invalid convictions problem impeachment but did not reach the substance on cross-examination purposes the contention the threshold it harm- view was error but considered question testimony the failure to exhaust concerning less error defendant’s since the successfully impeached by prior state remedies. had been Agents inconsistent to FBI statements made States, F.2d United 412 In Shorter v. which rendered rebuttal 428, Appeals Circuit Court of Ninth portions testimony im- defendant’s question the ra- avoided the of whether probable and untrue. Burgett tionale of violated obtained prior Commonwealth, secution’s use of convictions N.E.2d Gilday v. 247 impeachment purposes. 396, counsel for of Massachusetts Supreme Court because, question not decided harmless decided the error there was prosecution California, even threatened though the had Chapman supra, under since v. prior to use the infirm con- 1958 1959 prior out of the invalid Louisiana, victions from the defendant there was very was “not serious” and taken such con- the stand and admitted guilt and two other strong evidence part victions sof- strategy as a of trial “to prior for serious in-state convictions waiting anticipated ten the blow” without offenses. prior Burgett 771,
4. The convictions were F.2d was vacated and remanded 385 Circuit, Appeals, for enhancement in the indict- Ninth to the Court provisions 63, light ment under of Article for further of Bur consideration (N.D. gett. Vernon’s Ann.P.C. The trial was a uni- also Bates Dickson See tary Cal.S.D.1964) F.Supp. one under the former Code of Crim- 983. The ma Spencer Texas, jority inal Procedure. See “Memorandum on Petition Foley’s disagreed Judge Rehearing” L.Ed.2d 87 S.Ct. supra. interpretation Nelson, While the in Bur- 606. gett convictions of Bates v. actually ap- Foley Judge Further, withdrawn in his dissent disregard propriate impressed by instructions “I am the fact stated: enhancement, although and were not utilized for Texas of Crim- Court Supreme Appeals Court consid- nevertheless the conviction be- inal affirmed “in- ered their admission into evidence in fact suffer en- cause did herently prejudicial.” punishment, and because hancement disregard instructed Judge Foley Supreme convictions, In his dissent called atten- Court did tion to the action of the States view. Twice United take the same Justice Supreme Nelson, Douglas Court in Bates v. ‘suffer- stressed the accused U.S. L.Ed.2d denial of to coun- ed anew’ the judgment Wilson, wherein the in Bates v. sel.” concluded, however, Noting repeatedly The Court stat- held ing: obtained in violation convictions impeachment used for Gideon cannot be *12 uncertainty existing “In view of the any or other the purposes, court California concerning case, of Burgett no record the prior concluded of con- the admission the be prior should conviction henceforth light People viction in was erroneous of the offered unless credibility to Coffey Burgett, v. and and that the error to witness thus attacked can be shown Chap- was harmful the of standards in or the waived counsel 18, California, man v. 386 87 S.Ct. U.S. ceedings by certified the record.” 824, did not 17 L.Ed.2d The court 705. Boley State, (Nev.) In v. 456 447 P.2d believe, however, error type that of impeachment ac- which of an involved could never be found within harmless by prior cused of the use convictions meaning language of Chapman, though the necessarily did not involve the by background in Burgett provided and the rationale, hold, said: “We how- Court Texas, 554, Spencer v. 385 U.S. 87 S.Ct. ever, case after criminal commenced 648, 606, only L.Ed.2d made clear “that 17 in this prosecutor this date in a which justify most compelling showing can pre- question state asks such a is not and finding such a rea- beyond harmless error pared conviction, we shall document sonable doubt.” point great review the care.” cases, Following the decision the above 492, Shook, People In Ill.App.2d v. 67 214 Supreme handed the United States Court case, 546, pre-Burgett N.E.2d it held was Harrington its v. Cali down decision that the admission of conviction 250, 1726, 23 fornia, 89 395 U.S. S.Ct. impeachment purposes improper where 284, 2, 1969, holding that L.Ed.2d on June it had been determined that the con- 123, States, 391 the Bruton v. U.S. United nullity. viction was a 1620, 476, there error L.Ed.2d 20 deny 636, In Re Dabney, Cal.Rptr. harmless error. While presented 452 P.2d or Chapman was a by departing decision from ing California Su- it was that preme held Dabney’s inference, pros- majority Court. At diluting by trial the it so Harrington was against ecution introduced before an un- “the case that Bru- of constitutionally the “violation obtained overwhelming” prove beyond reasonable guilt impeaching his by testi- ton was harmless mony. doubt.” Harrington saying had neutral The dissent courts accused the rule California majority perhaps overruling Chapman “by emphasis, and of hold- the rule ized ing overemphasis, of the court’s view trial constitutional error ” Court, may ‘overwhelming of harm- evidence.’ a criminal offense held be Fahy “overwhelming” instead, adopted rule less there is untainted support Connecticut, evidence to the conviction. said: Thus the Court it seem where would that a mere “contri- 11 L.Ed.2d by way question there whether bution” a conviction of tainted “The prevent possibility application evidence evidence would not reasonable might complained have contributed of rule the harmless error where evi- guilt overwhelming dence is so conviction.” depart from Harrington does the conviction would have resulted “be- If yond anyway. Chapman inference dilute a reasonable doubt” majority, may Chapman who those courts its It be remembered claimed Harrington re- avoid seek to it was held that some constitution- cite federal emphasis only might error constitutional al error be harmless versible error but overemphasis perhaps own their be- when Court is “able to declare overwhelming beyond well lief that was harmless a reason- view Harrington neutralizing laying doctrine able rule be doubt.” down such Chapman rejected just neutralized specifically courts as the California Court justice” “miscarriage justice” “miscarriage rule. the California Only recently State, Md. peaching credibility an accused Johnson App. 232 (3/17/70), 263 A.2d testifying on his it is own behalf when Maryland Special Appeals, Court with- established that such ob- discussing out angle, the harmless error representation by tained absent held that the issue of a defend- testifying * * * or a valid thereof.7 waiver credibility ant’s guilt is material to his language do not think We interpreted Burgett innocence and bar (from quoted opin- Burgett and in this admission convictions secured without ion) interpreted limiting can its the assistance of counsel or a valid waiver application recidivist, or habitual of- right. of that *13 subsequent fender or offender statutes objection was based on Bur- Johnson’s authorizing upon enhanced assert, gett, though specifically he did not conviction of a current of- substantive bar, as in the case that he was not af- say And we cannot that evidence fense. Maryland The forded counsel. court felt prior of a the conviction to question he a trial thus raised that the credibility of an accused in his testifying investigated court should have further support guilt own behalf does not the of summarily overruling objec- without such trial; the offense for which is on he Therefore, reversing, tion. or question credibility to his is material of ” modifying judgment, the was re- the case * * * guilt or innocence. to hearing manded the trial court for on the prior admission of the convictions. light In above discussion of the I would that the conclude rationale bars Maryland appellate
The court wrote: im- prior felony the use of a conviction for Burgett principle “We hold peachment testifying the an accused serves to prior exclude evidence of a con- the showing own absent a clear behalf purpose viction offered for the of im- conviction was not obtained violation Maryland right 7. The court further stated: defendant’s constitutional to upon infringed prior proceeding. “We hold that is encumbent at the was not defendant, objection prior proof the when his to evi- We that if of the con- observe prior by certificate, dence of a conviction the is on the viction is ground that the conviction was constitu- seal of the clerk of the court wherein tionally proceedings had, stating void to state his the reasons to the properly crime, court to enable it to determine for what fact of the conviction and may by by any the issue. This be done him out other admissible record of the presence jury. proceedings conviction, establishing of the of the The court the hearing affirmatively shall then conduct the out of evidence does not and such presence jury. hearing represented At the the show that the defendant was pro- by counsel, presump- State shall first have the burden of the conviction is ducing conviction, tively Presuming evidence of a un- waiver of counsel void. by impermissible. defendant, less admitted the sufficient from a silent Carnley record is justify finding by Cochran, the court previous defendant has suffered such con- 8 L.Ed.2d The State then Code, provides presumption, viction. Art. one 10§ must rebut if it can. * * * finding accomplish method to this. When this The shall court make a showing has been made the defendant on the the evidence thus basis of produce tending must evidence to estab- duced and exclude from the trial shall right any prior lish that his constitutional to coun- found on the merits infringed prior proceeding constitutionally Any sel was in the to be invalid. Having already constitutionally at tify, issue. elected to tes- conviction found to be assert under oath that valid shall be admitted in evidence as going prior proceed- credibility was without counsel in the if relevant to the is- ing and did not waive to counsel. sue. As the admission of evidence vel subject is, course, court, exclusively He to cross-examina- for the non a matter point. trial, respect tion the State on the The in a no evidence with prove constitutionality is then burden the State to ” * ** convincing jury. presented clear and shall be to the issue prosecutrix announced in had met rule Gideon. The credibility determina- Night place is material to the at Bodittle’s Club which she where, presump- guilt frequented innocence. The and her tion of roommate occasion, tively they offered conviction when void would dance some of was, effect, impeachment aid used to the men first prosecutrix there. When police reported establishment of State’s offense guilt. guilt stage proceed- she only at the as- argument “aggravated told them believe ings was told not to sault” been committed her. specifically appellant’s testimony pointing Byrd, Dr. a State’s witness who subse- and told the 1957 Louisiana conviction her, quently found examined some small #3
to ask the Exhibit bailiff swelling superficial bruises without for use in their deliberations. The court body. He scratches her no found . admitting in- case at bar erred in vaginal trauma area and indica- purpose impeach- evidence for entry tion He related that force. prior felony ment of the con- appellant the her vagina per- resembled of married viction from should Louisiana. son and that she admitted had had she put record *14 have been on notice when the sexual three months the intercourse before prior pre-Gideon the conviction alleged offense. requested and was received to coun- silent sel, at appellant and the contended he was witness, Johnson, Dr. Seale also a State’s such time without counsel. prior testified that to date al- the of the leged prose- offense he had treated the engendered is
While some confusion cutrix for a sore throat and bronchitis and proceedings, it is juvenile to a reference vaginitis still later for and bilateral dates, etc., clearly in indicated from the cystitis bartholim which could have been appellant the record that the and the State caused sexual intercourse. pro- to same Louisiana referring the ceedings. ac- Appellant’s counsel now related that none of the medicines He knowledges assumption based was prescribed he had for her would have on footnote erroneous information. See “groggy dizzy” her to as she caused Even, however, #1. two there were claimed to have from such medication separate change not proceedings, this would alleged at unless the of the offense has use time the result. The to felony absent clear show- conviction a she “overdosed it.” ing that such conviction was not obtained prosecutrix although a The admitted in violation of Gideon. the hall her lived woman and son across
The question remaining is
not
apartment
attempt
whether
she did
from her
except
she told
constitutional error was harmless error.
time
when
scream
shortly
after
appellant
to leave
sharp
was
There
between the
conflict
arrival.
prosecutrix
appel-
of the
and the
lant as
guilt
at the
whether the act of intercourse
on cross-examination
While
acknowl-
stage
was with or
her
trial the
The
of the
consent.
prosecutrix’s
convictions
edged
prior
version is well
in
two
misdemeanor
described
I
majority’s
involving
turpitude,
opinion
re-
moral
and need not be
offenses
peated
agree,
facts revealed
appellant,
light
here.
in
of the
The
who admitted
cannot
making
advances,
sharp
conflict therein
initial
related
act
and
constitutionally infirm
not only
occurred
of the
with her consent
admission
appellant’s
cooperation
full
prior
and he
some
detailed
error under the
cooperation
credibility
of the acts of
harmless
also
which are
Harrington.
Chapman
mentioned in
standards of
State’s brief.
particularly
And this is
true when
serve the question of the
retroactivity
gloss of
question
considered with the
Burgett
is
insofar
prohibits
rationale
as it
fact
in
showing
absence of a
impeachment by
use
law,
presumed
it
Louisiana
is
to be
showing
conviction in
absence of
clear
and the
same
Texas
the conviction was not
in
obtained
information
based
violation of Gideon.9
is
permissible
which
this state.
importance
The
appeal
argued
Even if it could be
that the error
jurisprudence
of this state lies not
stage
harmless at
the guilt
fact that
it is affirmed or
but in
reversed
reversal,
ceedings,
my opinion, should re-
clearly
the manner
which
issue so
in-
sult
of the introduction of the
because
raised is disposed
by this
The
Court.
trial
penalty stage
at the
firm
disappear
issue will
is
because
rec-
part
appellant’s prior
criminal
ignored.
raised
being
It
trial
daily
assessing
ord
for the
use
jury’s
available
courts
this state and in
through-
courts
punishment.8
only appellate
out this
is the
nation. This
appeals
court in
for criminal
bar
in the case at
The
offense
courts,
is not unusual
the trial
appellant’s
April 4,
occurred on
prosecutors and defense counsel look to this
18, 1969,
March
well
trial commenced
guidelines in handling their
for some
Court
(November
the decision
after
day
day
problems.
It
incumbent
1967).
question
presented
here
guidelines.10
furnish
this Court
those
re-
expressly
appeal.
direct
I would
majority holds that “under
the facts
*15
Tex.Cr.App.,
State,
v.
Brumfield
8. In
previously
been
con-
10.If
defendant has
it was said:
S.W.2d
the
announced
victed in violation of
rule
“Further,
has taken
where the defendant
Wainwright,
supra, and
in Gideon v.
is
stage
guilt
stand at
the
the
ceedings
offense,
subsequently tried for another
prior
part of
crim-
his
testify
he, if
to
at
how does
he desires
impeach-
properly
is
used for
inal record
impeachment by
trial, avoid
use of
introduced,
legally
ment or is otherwise
avoid suf-
such void conviction and thus
at the
need
be re-introduced
the same
hearing
fering
from
Amendment
anew
his Sixth
punishment.
Such
give up
right
to
the
counsel? Must
judge
may
properly
the
be
considered
testify
pre-
right
to
impeachment?
his own behalf to
assessing
penalty.”
jury
I
think not.
vent
Cf.
question
be
well
raised
States,
v. United
390 U.S.
Simmons
constitutionally in-
the introduction of
1247;
967, 19 L.Ed.2d
Jack-
prior
impeachment at
firm
conviction for
Denno,
368, 84 S.Ct.
son v.
stage
guilt
is harmless
of the trial
908;
12 L.Ed.2d
Brumfield
disregard at
to
error can an instruction
State, Tex.Cr.App.,
If
reader left whether majority not ex- means does impeachment an accused tend behalf, in his Bur- testifying own gett apply particular case does so error. error was harmless constitutional majority clearly If delineated their position it tenable. The would more simply majority has around written presented. issue stated, dissent. reasons For the I BEARD, Appellant, John Thomas Texas, Appellee. The STATE of No. 42870. Appeals Court Criminal Texas. May 20, 1970. July Rehearing Denied *16 felony prevent error. convicted sufficient harmful ever been permitted supra. Texas, negative to im- be answer See knowing defendant, Certainly peach sur- the circumstances before him where testifies, rounding I think not. conviction? the trial court’s atten- he calls completed probation successfully May prior that a tion to fact I think not. manner? same in violation of Gideon and was obtained utilized clearly possession too is record evi- If the State impeach- available silent and not of such conviction which is remote ment, dence ask the nevertheless make the State fur- as to the court should permit impeachment inquiry convicted has ever been he and not accused ther to then be allowed of a show- of such absence use negative gives answer ing him if he defendant had explain if affirmatively being him to leave liar or waived the time or had affirmatively? If such answers same. prohibition permissible, Suppose then con- cedure accused’s against appeal remote convictions the use viction been reversed on destroyed. effectively May the State had never been tried. if he has him on cross-examination ask