Baxter v. State
Decision Date | 23 February 1983 |
Docket Number | No. 113-82,113-82 |
Citation | 645 S.W.2d 812 |
Parties | George O. BAXTER, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
John C. Hardin, McKinney, for appellant.
Tom O'Connell, Dist. Atty. and Bill Schultz, Asst. Dist. Atty., McKinney, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of injury to a child. Punishment was assessed at imprisonment for ten years. The Dallas Court of Appeals reversed the conviction, finding that the State improperly questioned the appellant concerning a possible extraneous offense. Baxter v. State, 629 S.W.2d 135 (Tex.App.Dallas, 1982). We granted the State's petition for discretionary review to consider whether the opinion of the Court of Appeals was in conflict with this Court's prior holding in Cleveland v. State, 502 S.W.2d 24 (Tex.Cr.App.1973).
The record reflects that during the punishment phase of the trial appellant testified as a witness in his own behalf to establish his eligibility for probation. On cross-examination, the State, referring to appellant's confession which was introduced during the guilt stage of the trial, inquired as to how appellant "happened to be twisting the [injured] child's leg?" The following transpired:
"A. (By appellant) Sir, upon that night I had been awake that night and my wife was asleep and the child was crying. Now I was sitting up and I decided that I didn't want to disturb my wife and I would allow her some rest because she had worked hard that day. So I took the child and I went over to the seat and sat down and sat him on my right knee.
Upon doing so, I had been trying to burp him.
After having tried to, you know, burp him some, I went ahead and started jogging him on my knee. I don't know why I did it, sir, but that was it.
And from there, I had been thinking about a lot of things, about various kinds of things that I had on my mind, and as I put in the statement.
A short time later, the following exchange took place:
In reversing, the Court of Appeals held that Baxter v. State, supra, at page 137.
However, before the rules relating to the admissibility of extraneous offenses come into play, there must be some type of inadmissible evidence presented of the accused's prior criminal conduct for error to be present. Roach v. State, 586 S.W.2d 866 (Tex.Cr.App.1979). In the case at bar, the evidence which got before the jury did not constitute proof of an extraneous offense, as appellant contends. Further, appellant's objections were sustained, and the State was not permitted to show further any connection of appellant to an extraneous offense, if one in fact existed. Finally, although appellant was not formally charged with any offense relating to the death of the other child, appellant demonstrated no bad faith on the part of the State in pursuing this line of questioning. See Hernandez v. State, 532 S.W.2d 612 (Tex.Cr.App.1976), and Solis v. State, 492 S.W.2d 561 (Tex.Cr.App.1973).
Additionally, we note that even if it could be argued that the evidence presented herein showed an extraneous offense, no reversible error is present. First, the Court of Appeals has correctly set forth the general rule:
"Ordinarily, when a defendant voluntarily takes the stand in his own behalf, he may be contradicted, impeached, bolstered or attacked just as any other witness however, he cannot be questioned on matters forbidden by law such as a possible extraneous offense of which he has not been convicted." Baxter v. State, supra, at page 136.
But the exception that extraneous offenses are admissible for impeachment, even if not reduced to a final conviction, when the witness by his testimony leaves a false impression with respect to his prior criminal record, should not be limited solely to the witness' assertions on direct examination. See Ex parte Carter, 621 S.W.2d 786 (Tex.Cr.App.1981), and Shipman v. State, 604 S.W.2d 182 (Tex.Cr.App.1980). To so hold would, as the State points out, "be a free ticket for a defendant to offer outrageous self-flattering remarks in response to cross-examination without fear of ...
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