*1 and not in error. We substantial evidence affirm- judgment
affirm the district Commission’s order.
Perry WEST, Appellant, Collins Texas,
The STATE of State.
No. 2-04-031-CR. Texas, Appeals
Court of
Fort Worth.
May *2 per- and had West Richards, Worth, George Rusnak arrived Appel- David Fort HGN, tests, the sobriety form three field lant. turn, leg and the one stand the walk and D.A., Charles M. Mal- Curry, Tim Crim. poorly on the performed tests. West lín, Appellate D.A. and Asst. Chief *3 Rusnak ar- Officers Greer and and Division, Swenson, David M. and Anne was intox- concluding after he rested West Paschall, Curl, Johnson, Ashley and Shawn jail, not city the could icated. At West D.As., Worth, for Asst. Crim. Fort State. adequate sample for a breath provide test. breath LIVINGSTON, GARDNER, Panel B: WALKER,
and JJ. driving while charged West was At guilty. pleaded intoxicated
OPINION trial, he not intoxicat- testified that was During cross- time of his arrest. ed the WALKER, Justice. SUE examination, that “was West testified I. Introduction jail in the took [him] shocked that Perry jury Appellant A convicted Collins totally first and that “was place” intoxicated, driving and the West while place.” in to be arrested the shocked court, having accepted pleas trial thereafter, following exchange the Soon repeat true to the enhancement and of- place: took him to six paragraphs, fender sentenced Now, your father [Prosecutor]: years’ point, In one confinement. you yesterday, he testified its argues that the trial court abused dis- Do that left house 8:00. you the about allowing by cretion the State to elicit testi- you remember that? mony him that he had been arrested from Yes, more than times. Because West I do. [West]: impeach- the “open did door” tell the Why you [Prosecutor]: evidence, we that trial court ment hold the left the you officer on video by permitting abused its discretion house at seven? Applying testimony. State to elicit this I know. I have no clue. don’t [West]: required analysis, harm hold that we Consequently, error was harmless. agree you [Prosecutor]: Wouldn’t affirm. will things way you remember likely me, June September back on —excuse Background
II. Factual more accurate than the 2nd of 2002 is year a half later? almost a Police Offi- On June Fort Worth patrolling cer Todd Greer was west in Maybe respect, in one but [West]: prostitution activi- Fort Worth for side respect it isn’t. another female, young He whom he ty. observed *4 why it shocked me so much.” prose- The Id.; appeal. court’s decision on v. Karnes out, pointed however, cutor then that West State, 184, 127 (Tex.App.-Fort 189 had been in 1996 arrested and 2002. The 2003, Worth pet.). no trial court subsequently permitted the Impressions B. False following question to ask the in the presence jury: West, of the “Mr. isn’t puts An accused his character you’ve
true that
been arrested more than
veracity
by
stand,
in
taking
issue
and
twenty
responded,
times.” West
“Yes.”
be
in
impeached
the same manner
No further questions
proposed
were
con-
as any other
cerning
prior
witness. See Hammett
State,
102,
713 S.W.2d
105
III. Extraneous Offenses Evidence
prior
Generally,
offenses are inad
In his sole point,
argues
that the
impeachment purposes
missible for
unless
trial court erred by overruling
objec-
his
in
offense resulted
a final conviction
tion
permitting
and
the State to elicit testi-
felony
or a
involving
either
crime
mony that he had been arrested more than moral turpitude and the conviction
is
twenty times. West contends that his
State,
too
in
remote
time. See Ochoa v.
statement
that he was “shocked” at being
847,
481 S.W.2d
(Tex.Crim.App.1972);
850
arrested
deny-
was not a blanket assertion
(Tex.
State,
74,
Turner v.
4 S.W.3d
ing any prior
with the law
trouble
and that
1999,
App.-Waco
pet.);
no
see also Tex.R.
the “inflammatory
evidence” of
pri-
608,
However,
exception
609.
an
Evid.
or
arrests allowed the
to convict him arises when a defendant
testifies and
of being
generally.
a criminal
The State
leaves a
impression
false
as to the extent
argues that the evidence was
admissible
arrests, convictions,
his
charges
rebut and
“the
impression
correct
false
against him,
“trouble”
police
with the
gratuitous
[West’s]
statements creat-
State,
generally.
See Prescott v.
744
by
ed”
implying that he had
in
never been
128,
(Tex.Crim.App.1988);
131
trouble with the law.
Ochoa,
case,
481 S.W.2d
850.
such a
A. Standard of Review
the defendant
“opened
is deemed
have
inquiry
the door” to an
into the
veracity
a trial
We review
court’s ruling
testimony,
evidence of
the defen
admitting
excluding
evidence for an
dant’s
criminal record is admissible
Prystash
State,
abuse of discretion.
8
impression.
to correct
the false
See Mar
527 (Tex.Crim.App.1999), cert.
denied,
(Tex.
State,
tinez v.
120 S.Ct.
728 S.W.2d
U.S.
Turner,
(2000);
State,
Montgomery
L.Ed.2d 782
Crim.App.1987);
S.W.3d at
misjudged
that he
night
time on
of the offense because
rebut
be created
the State seeks to
must
does not
was shocked
through
direct examina
by
defendant
by
portray
attempt
constitute
tion.
67 S.W.3d
See Wheeler
with his
However,
himself in a manner inconsistent
Compare Creek
prior criminal record.
voluntarily testifies on cross-
a defendant
880, 892-93
more v.
concerning
examination
criminal
ref'd)
(op
pet.
Antonio
(Tex.App.-San
record,
any prompting or maneu
without
sexu
of other
reh’g) (allowing
evidence
vering
part
on the
by
al assaults committed
defendant
doing
with the
leaves
false
that he
after defendant testified
children
jury, the
correct that
allowed
child).
sexually abuse
would never
impression by introducing
criminal
record.
defendant’s
that he was
West’s first two statements
Martinez,
362;
see also
shocked were made
(Tex.
Roberts v.
per-
questions concerning his
ref'd).
App.-Houston
pet.
[1st Dist.]
videotaped sobriety
formance
made
re-
the third statement was
stated
he was
*5
sponse
prosecutor’s questions
con-
to
arrested,
being
that
was
“shocked”
memory would
cerning whether West’s
handcuffed,
jail.
and taken to
He did not
night
have been more accurate
he had
“in
state that
never been
trouble”
or
the time of trial. West’s
offense
law,
with the
that his
clear of
record was
that
was shocked communi-
statements
arrests,
any prior
had
never
arrest,
his
feelings at the
cated his
time
disagree
been
with
arrested
DWI. We
his
histo-
not an
about
criminal
West’s statements created
ry;
still feel shocked
person
previ
that he had not
arrested,
person
if the
has
even
been
Turner,
ously
Compare
been arrested.
multiple times.
previously arrested
(holding
at 78-80
could im
questions,
the answers them-
relevant
peach
subsequent,
defendant with
violent
selves,
tenor of the cross-
and the overall
police confrontation when defendant testi
impres-
examination did not create a false
fied six times on direct examination that
jury concerning
sion
West’s
with
police
polite
he was
to
officer
who
Prescott,
history.
criminal
See
Martinez,
him);
jury’s
King
verdict.
during
phase,
and he
instruction
was
(Tex.Crim.App.1997) (citing
Kot
to complete
steps
unable
the initial nine
States,
750, 776,
teakos v. United
328 U.S.
out.
four
swayed
three to
inches
(1946)).
1239, 1253,
66 S.Ct.
State,
862,
32 S.W.3d
867
that he re-
closing argu
also consider
We
injuries in
ceived numerous
Vietnam. He
ments,
guilt,
evidence of the defendant’s
drinking
also testified that
had not been
jury
and the
instructions.
See Motilla
day,
but that he did
a
take
“swallow”
(Tex.Crim.
State, 78 S.W.3d
just
being pulled
of beer
before
over.
Morales,
App.2002);
281 State, (Tex.App.-Fort 99 349 did address West’s other ref'd). Opposing counsel pet. Worth charge instructed Additionally, about otherwise may introduce evidence jury persons presumed are “[a]ll history a past criminal irrelevant fact that the de- to be innocent.... The examination, witness, “opens direct confined, arrested, fendant has been door” or “leaves false charged indicted for or otherwise with to the extent of either as gives guilt to no offense rise inference of arrests, convictions, charges, or trou that, in the the defendant’s trial.” holdWe 99 S.W.3d police.” Reyna, ble with West, context the entire case 130-31). Prescott, (citing permitting the trial court’s error in notes, Additionally, majority as he had been ask West whether correct a false also “more than times” did not voluntarily by a defendant who testi- left injurious substantial effect during cross-examination about his fies jury’s not affect verdict West’s by offering evidence prior criminal record rights. King, substantial See 953 S.W.2d of his record. Martinez Thus, disregard at 271. we the error. See (Tex.Crim.App.1987). Tex.R.App. 44.2(b). P. We overrule West’s exception The must relate to defen- point. sole dant’s is volunteered Hall v. related collateral matters. IV. Conclusion (Tex.App.-Tex- Having only point, overruled pet.) (citing Lopez no arkana judgment. affirm the trial court’s (Tex.Crim.App.1996)). im- must correct the false opponent The LIVINGSTON, concurring J. filed a via cross-examination the wit- pression opinion. false impression ness who left the instead calling to correct other witnesses LIVINGSTON, Justice, TERRIE impression. Wheeler concurring. I separately majority write from the appellant ‘opens who the door’ to “[A]n opinion diverge analysis from its hav otherwise inadmissible evidence risks *7 extraneous offense evidence. ing that evidence admitted used a ruling When we review trial court’s However, him. party offering evidence,
the admission
exclusion of
‘stray beyond
the evidence
do so under an abuse of discretion stan
scope of the invitation.’” Feldman
Prystash
dard.
(Tex.Crim.
denied,
(Tex.Crim.App.1999),cert.
529 U.S.
State, 957
(citing Schutz v.
App.2002)
In response to Sam question, appellant de- nied that he had taken notes and further volunteered again once that he was “so HOSPITAL, COLLEGE STATION L.P. by being placed arrested and College Station Medical d/b/a position handcuffed and tak- Center, Appellee. jail en to justification for DWI” as his No. 10-04-00321-CV. making a mistake on the time he left his father’s Appellant’s house. statements as Texas, Appeals Court of “being apparently shocked” were volun- Waco. tary and made with a view explain June 2005. discrepancy in testimony regarding Rehearing Overruled June timeline, justify his behavior regarding the sobriety tests and explain his refusal complete a valid breath test. The trial only
court allowed the State to ask one
question of the appellant up to clear he left implying he had
not been by asking only arrested before if
he had been arrested more than 20 times.
I would therefore conclude that
State’s one appellant’s into num-
ber of only arrests strictly limit-
ed to rebut appellant
attempted to create before the
did not stray beyond the scope of the reason,
invitation. For this I would con-
clude that the trial ruling was not
outside the zone disagree- of reasonable
ment and it was therefore within the trial
court’s discretion to admit the limited re- question. reason,
buttal For this I re-
spectfully concur in the majority’s decision. notes you Did take after [Prosecutor]: dressed, provocatively enter a described as this happened? by pickup truck Officer white driven West. But, again, I No. was so briefly, [West]: the truck noticed Greer followed placed out, by arrested and being shocked plate light truck’s that the license stop. position Greer and initiated traffic Officer handcuffed DWI, I jail sure strong emanat- taken odor of alcohol noticed a mistake on may have made requested have—I ing from the truck’s interior and [Emphasis added.] You bet. time. of another officer. assistance bench, After approaching prosecu- (Tex.Crim.App.1991) argued “just tor opened (op. reh’g). Appellate courts should door by to all of his arrests” stating that give great discretion the trial courts “he was shocked and amazed to being ar- relevancy, reversing matters of only if presence rested.” Outside trial court acts outside “the zone of reason- and in to the inquiry able disagreement.” Montgomery, as to why he was at being arrest- Thus, S.W.2d at 391. long as the trial ed, stated, “Because this time was court’s decision to admit or exclude evi- the first time I been arrested since dence falls the zone within rea- which 1995. This when I time is made a com- may differ, sonable appellate minds courts plete my effort turn life around. That’s should disturbing refrain from the trial