Jоe Louis THEUS, Appellant, v. The STATE of Texas, Appellee.
Nos. C14-90-00717-CR, C14-90-00720-CR.
Court of Appeals of Texas, Houston (14th Dist.).
Feb. 24, 1994.
Rehearing Overruled April 7, 1994.
874 S.W.2d 121
The judgments of conviction are affirmed.
Linda A. West, Houston, for appellee.
Before ROBERTSON, SEARS and DRAUGHN, JJ.
OPINION ON SECOND REMAND
ROBERTSON, Justice.
Appellant was indicted for possession and delivery of less than twenty-eight grams of cocaine, and was found guilty on both counts by a jury. The trial court assessed рunishment at thirty-five years imprisonment for possession of the controlled substance and twenty-five years for its delivery. On original submission, the majority of this court rejected appellant‘s arguments that the trial court improperly admitted evidence of a prior conviction, and we affirmed the judgment of the trial court. Theus v. State, 816 S.W.2d 773 (Tex.App.—Houston [14th Dist.] 1991). Appellant filed petition for discretionary review and the court of criminal appеals reversed and remanded this cause to this court to determine whether appellant was harmed
Appellant complains of the trial court allowing the state to bring forward testimony regarding his prior conviction for arson. The state questioned appellant about this prior conviction in an attеmpt to impeach his credibility. The state also questioned appellant‘s witnesses concerning their knowledge of his prior conviction. Prior to trial, appellant filed a motion asking the trial court to not allow testimony regarding this conviction because the unique facts surrounding the conviction were more prejudicial than probative and the conviction had no bearing on truth or veracity. Aftеr a hearing, the trial court denied this motion.
The court of criminal appeals did not find that this prior conviction was per se inadmissible. Theus, 845 S.W.2d at 879. The court stated that
The court found that four of the factors favored admissibility. The conviction would not cause the jury to perceive appellant as a drug dealer because the two crimes were not similar; it occurred recently relative to the charged offense; appellant‘s testimony and credibility were important, as the defense presented was mistaken identity, and the trial pitted the testimony of the officers against that of appellant and his character witnesses. Id. However, the court found the unique circumstances of this case compelled a finding that the lack of impeachment value overrode the other four factors. Id.
The court stated the arson conviction had so little probative value on the question of appellant‘s credibility and had much prejudicial effect, and the trial judge failed to dispel the prejudicial effect when presented with the opportunity.1 Id. 881-82. It is in this
In applying the harmless error rule, our focus is not on the propriety of the outcome of the trial, but on the integrity of the process leading to the сonviction. Harris v. State, 790 S.W.2d 568, 584-87 (Tex.Crim.App.1989);
In looking at the source and nature of the error, this court must determine whether the state intended to taint the trial in offering inadmissible evidence. Higginbotham v. State, 807 S.W.2d 732, 735 (Tex.Crim.App.1991); Harris, 790 S.W.2d at 588. The record before us does not support a finding that the state intended to taint the proceedings. The prosecutor argued a fair reading of the admissibility of prior convictions pursuant to Rule 609. At the time this case was tried there had been no case interpreting
We must next look to see if the improper evidence was emphasized by the state. Again we do not find this factor weighs in favor of a finding of harm. In two hundred sixty-six pagеs of testimony, the questioning regarding this offense would not fill six pages. In nine and one half pages of cross-examination of appellant, just one and one half discussed the prior conviction. This could have been confined to less than one page but appellant stated he wasn‘t convicted and explained that he had been put on probation. The state then inquired about the success of his probation. Of appellant‘s five witnesses, four were asked about the prior conviction only after a thorough cross-examination about the facts of the charged offense or after establishing that the witness had no knowledge about the charged offense.
During nineteen pages of closing argument, the prosecutor referred to appellant‘s prior conviction or called him an ex-convict just three times. While the prosecutor did imply the prior conviction of appellant weakened his credibility, it was not the main focus of the argument. The prosecutor focused on the reliability of the officers who made the buy and testified at trial. The prosecutor spent a great deal of time discrediting the only witness who was at the scene of the sale. A great majority of the remaining argument focused on the police and the credibility of their testimony. The prosecutor spent close to six pages rebutting the argument of defense counsel regarding the officers use of an offense report and the fact that they were mistaken in arresting appellant. In his post-
We next focus on the probable collateral implications of the error. This factor contemplates the disparaging of a sole defense. Higginbotham, 807 S.W.2d at 732; Harris, 790 S.W.2d at 585. Appellant‘s defense was a claim of mistaken identity. The introduction of the prior conviction did not malign this defense. While it may have affected his credibility, the trial, with or without the prior conviction, would still focus on his word and the testimony of his witnesses against the testimony of the state‘s witnesses. Of appellant‘s five witnesses, only one, Frederick Clark, was actually in the building where the sale took place. Clark, who was alsо arrested at the scene, testified that he did not see appellant sell drugs to the officer. However, the officer who made the purchase testified that he later saw Clark at the station but did not recognize him because he had no dealings with him. Appellant introduced no evidence that would indicate Clark saw the buy that involved the officer.
Two other witnesses brought by appellant were near the scene but not in the vicinity when the buy took place. One was in a liquor store and the other arrived after the bust. Appellant‘s two remaining witnesses were strictly character witnesses and their testimony did not directly bolster his defense of mistaken identity. Appellant testified that he did not sell the drugs but the officer who made the buy testified that he positively identified appellant at the scene six minutes after the buy and again that evening at the station. The evidence did not support appellant‘s claim of mistaken identity but not because of the introduction of his prior conviction.
In his post-remand brief seizes upon our statement that the introduction of the prior conviction “may have affected his credibility” as proof positive that he was harmed. From this he concludes that reversal of his conviction, is required. The state‘s response to appellant‘s contention is so appropriately stated, it is adopted as our reasoning and is quoted in toto:
The test of
Tex.R.App.P.Ann. 81(b)(2) (Vernon Pamph. 1993), however, is not whether there was “some harm” or “any harm” to a defendant. It is whether the error contributed to the conviction or to the punishment. Virtually every word of testimony and every bit of evidence introduced by the State in a criminal trial can be sаid to do “some harm” to the accused if by harm is meant that it in some way shows that he is guilty of a crime or that he has a criminal history. If the test for reversal when the State is the source of trial error were whether the error harmed the defendant in some way, then reversal would be automatic in all such cases. Such a rule would be tantamount to conferring upon every criminal defendant the right to a trial absolutеly and perfectly free of any errors committed by the State.Gratefully, such is not the rule. The possibility that the prior conviction affected the appellant‘s credibility does not foreclose the issue of whether the error contributed to the jury‘s finding of guilt. As this Court observed, the evidence did not support the appellant‘s claim of mistaken identity even without the introduction of the arson conviction. Theus III [858 S.W.2d], at 28.
We must nеxt examine the record to try and determine the probable weight placed on the error by the jury. Higginbotham, 807 S.W.2d at 737; Harris, 790 S.W.2d at 587. The record shows that the improper evidence was discussed in only six of two hundred sixty-six pages of testimo-
Appellant testified that he did not sell the cocaine to the officer. Houston Police Officer Bledsoe testified that he personally purchased a rock of cocaine from appellant who was arrested by other officers within about six minutes, and that he then drove by the arrest location and verified the correct person had been arrested. Two members of the arrest team, Houston Police Officers McWilliams and Holmes (Holmes being a supervisor for some six and one-half years) testified that when they arrived to arrest appellant, appellant threw down a matchbox and a pill bottle, both of which contained rocks of cocaine (that was the bаsis for the possession charge and conviction). Appellant‘s credibility, while not indirectly challenged without the prior conviction, would surely be under scrutiny by any jury for possible self-serving statements. Also, the court of criminal appeals recognized that the differences between the two offenses would not lead the jury to perceive the appellant as a habitual drug dealer. Theus, 845 S.W.2d at 881. Like the admission of the extraneous offense evidence in Harris “the probable impact of the error on the jury was minimal.”
Finally, we must determinе whether declaring the error harmless would encourage the state to repeat it with impunity. Higginbotham, 807 S.W.2d at 737-38; Harris, 790 S.W.2d at 587. The court of criminal appeals held that admission of this prior conviction was improper because of the unique facts of the case. Theus, 845 S.W.2d at 874. Because of this, we do not believe that a harmless error finding in this case will lead the state to repeat this error with impunity. We further believe that the court‘s adоption of the five factors derived from federal case law will give prosecutors an insight into the analysis used by the court of criminal appeals before seeking admission of prior convictions.
Employing the considerations set out in Higginbotham and Harris, we conclude beyond a reasonable doubt, the state‘s use of appellant‘s prior conviction did not contribute to the jury‘s verdict of guilt. We therefore hold that the error is harmless as to the jury‘s dеtermination of appellant‘s guilt. See
In appellant‘s post-remand brief he raises a second question—whether the error in admitting evidence of the prior arson conviction was harmless as to punishment. He admits in his brief that “certain matters in the record ... previously [had] not [been] briefed in any court.” Appellant should be foreclosed from raising this issue at this late date, but in an effort to head-off yet another possible remand by the court of criminal appeals, we will address the issue.
The bottom line of appellant‘s contention is that Judge Boyd, who presided at appellant‘s trial and assessed punishment, was not aware of the underlying circumstances of the arson conviction because this evidence had been previously heard by Judge Walker during the hearing on appellant‘s pre-trial mоtion to prohibit the state from impeaching him with the prior arson conviction.
Appellant argues that the sentencing judge “could have considered the mitigating evidence of the prior arson conviction, but he
The judgment of the trial court is affirmed.
SEARS, Justice, dissenting.
I again dissent for all the reasons enumerated in the original dissent and the dissent from the majority opinion in the first remand.
I agree with the reasoning of the Court of Criminal Appeals and I find harm beyond a reasonable doubt.
Notes
Aрpellant asked for the opportunity to explain to the jury the circumstances behind his arson conviction. Appellant feared that the mention of an arson conviction would conjure up images of burning buildings and insurance fraud. The trial court denied his request to explain the underlying facts.
The court of criminal appeals agrees with appellant that the trial court‘s denial of this request increased the prejudicial effect against him. Theus, 845 S.W.2d at 882. Both appellant and the court of criminal appeals seem to believe that images of burning buildings and insurance fraud are worse than the true facts behind his conviction. It is beyond this court‘s comprehension how the facts would have served appellant. Appellant, after a domestic dispute with his girlfriend, took a beer can full of gasoline and pourеd it through the postal slot of her door. He then set fire to the postal slot. The fire did not spread and was put out before much damage occurred to the residence. Appellant was not ordered to pay restitution and was placed on probation, which was later revoked. Appellant and the court of criminal appeals seem to think that this was a minor crime. However, the only reason more damage did not occur was because the fire was quickly extinguished. How could appellant been helped by showing that he attempted to burn down the residence of his girlfriend with the great possibility that she could have died in the resulting fire? A clearer reading of the facts that appellant so desperately wanted to place before the jury might have led them to believe that he was lucky that he was not previously charged with murder or attempted murder.