Brown v. State

• Decision Date: 26 June 1985
• Docket Number: No. 465-84,465-84
• Citation: 692 S.W.2d 497
• Parties: Clarence BROWN v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 497

692 S.W.2d 497

Clarence BROWN v. The STATE of Texas, Appellee.

No. 465-84.

Court of Criminal Appeals of Texas En Banc.

June 26, 1985.

Sharon E. Giraud (court-appointed), Fort Worth, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall, David L. Richards, Robert K. Gill, Sharen Parrish and J. Michael Worley, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION AND STATE'S CROSS-PETITION

FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted by a jury of the offense of aggravated robbery. See V.T.C.A. Penal Code, § 29.03. Punishment, enhanced by a prior felony conviction, was assessed by the jury at fifty years imprisonment in the Texas Department of Corrections. On appeal to the Fort Worth Court of Appeals, the conviction was affirmed. Brown v. State, 667 S.W.2d 630 (Tex.App.--Fort Worth 1984). Appellant petitioned this court for discretionary review alleging three grounds for review, and the State cross-petitioned for discretionary review alleging a single ground for review. We granted both petitions to determine whether the court of appeals correctly decided the issues before it.

In appellant's first ground for review, he contends that the court of appeals erred in affirming the judgment of the trial court because the trial court erred in denying his motion for a mistrial following the State's cross-examination of appellant regarding a probation revocation. The record reflects the following exchange took place between the prosecutor and appellant during the guilt-innocence phase of trial:

"Q. Are you the same Clarence Brown that on the 20th day of December, 1977, in Criminal District Court No. 1 of Tarrant County, Texas, in Cause No. 10682, that was convicted of burglary of a motor vehicle, and sentenced to the Texas Department of Corrections?

"A. Yes, I am, but I wasn't convicted.

"Q. Did you go to the penitentiary?

"A. Yes, I did, of my own free will.

"Q. Did the Court send you to the penitentiary?

"A. Yes, under my own free will.

"Q. The Court sentenced you to go to the penitentiary and you went, is that correct?

"A. Yes, they did.

"Q. You don't think--You don't mean to say that you weren't convicted. You mean that you didn't have a trial, is that right?

"A. I mean that I wasn't convicted.

"Q. But you did go to the penitentiary?

"A. Yes, I did.

"Q. And you are saying that you went to the penitentiary because you wanted to go to the penitentiary?

"A. Well, I broke the law of society, so I had to go pay my dues.

"Q. Okay. You were convicted of an offense, a felony offense, and you went to the penitentiary, right?

"A. I wasn't convicted.

"Q. Okay. On that day, you also had your probation revoked, is that correct?

"MR. GILFEATHER: I'm going to object, Your Honor. That's not a proper question. It's not proper for impeachment, and it's an attempt to inflame and prejudice the Jury.

"THE COURT: Sustained.

"MR. GILFEATHER: We would move the Court to instruct the Jury to disregard that last question.

"THE COURT: The Jury will disregard that last question.

"MR. GILFEATHER: And we feel, in all due respect for the Court, that no amount of instruction can cure the bias and prejudice that's been caused by that question, and we respectfully request a mis-trial.

"THE COURT: Overruled.

"MR. GILFEATHER: Note my exception.

"Q. [By the prosecutor] Are you the same Clarence Brown that in Cause No. 4326, in Criminal District Court No. 1 of Tarrant County, on September 2nd, 1977, was convicted for the offense of unauthorized use of a motor vehicle, and was sentenced to the penitentiary?

"A. I was not sentenced. I was not convicted.

"Q. But you went to the penitentiary for that case.

"A. Yes, it's the same case.

Before the Fort Worth Court of Appeals, appellant contended that the trial court's failure to grant a mistrial was error in light of our decision in Cross v. State, 586 S.W.2d 478 (Tex.Cr.App.1979).

The court of appeals overruled appellant's contention, stating:

"Cross held that it was error to admit, during the guilt-innocence phase of the trial, proof of the misconduct for which the defendant's probation was revoked. [Id. at 481] The Court further held that because a preponderance of the evidence standard controls in probation revocation proceedings, rather than the standard of proof beyond a reasonable doubt, a probation revocation does not fall within the 'conviction exception' to the general rule forbidding impeachment by proof of prior acts of misconduct. [Id.] (Emphasis original.)

In the case before us, the prosecutor's question asked only whether appellant's probation had been revoked, making no reference whatsoever to the specific misconduct or grounds for the revocation. Thus, the specific error committed in Cross did not occur in appellant's case. However, in light of the further holding of Cross, stated above, we believe that it was error for the prosecutor to have asked appellant whether his probation had been revoked, regardless of the fact that no reference to the grounds of revocation was made. [footnote 2]

[Footnote 2] We note that in this case, as in the Cross case, proof of the probation revocation was unnecessary as the State had available alternative methods of proof of appellant's prior convictions for impeachment and the burden would have been on appellant to then show that either of the convictions was not final. Cross, supra at 481."

Brown, supra, at 633.

The Fort Worth Court of Appeals ruled against appellant's contention by finding first, that the specific question asked by the prosecutor regarding the revocation of probation was proper since it did not refer to the specific acts of misconduct upon which the probation revocation was based; second, that it was improper, however, to refer to the probation revocation regardless of reference to specific acts of misconduct; and third, even though mention of the revocation was improper, the error was harmless and did not require reversal.

In its petition, the State assails the appellate court's second finding. The State contends that the appellate court incorrectly applied this Court's decision in Cross, supra, and should have applied the holding voiced in Roliard v. State, 506 S.W.2d 904 (Tex.Cr.App.1974). Appellant's first ground for review attacks the appellate court's third finding that the error was harmless.

In order to address both contentions on this issue, a brief factual history is necessary. In 1975, appellant was charged with unauthorized use of a motor vehicle. He pled guilty and was placed on six years probation. On September 2, 1977, an order revoking appellant's probation was entered, alleging the burglary of a motor vehicle and appellant's failure to report to his probation officer as grounds for the revocation. On December 5, 1977, appellant pled guilty to the burglary of the motor vehicle, the offense upon which his probation was revoked, and was sentenced to serve six years imprisonment. This sentence was to run concurrently with the sentence imposed for the conviction for unauthorized use of a motor vehicle. When appellant was charged with the instant offense of aggravated robbery, the conviction for the burglary of a motor vehicle was used as an enhancement allegation.

Initially, we concur with the court of appeals' finding that the specific error in Cross did not occur in this case. In Cross, supra, the defendant was questioned about an assault which was used to revoke his probation imposed for a burglary offense. We held that it was error to question the defendant about the assault since he was not convicted for assault: the probation revocation was not a trial, was administrative in nature, and was proved only by a preponderance of the evidence. Id. at 481. Thus, in the instant case, the State would have erred had it referred to the facts regarding the burglary of a motor vehicle and failure to report to the probation officer which were used to revoke the probation received for the unauthorized use of a motor vehicle conviction.

Contrary to the State's urging, we also find that the prosecutor erred in referring to the probation revocation. In the instant case, when appellant had his probation revoked for the unauthorized use of a motor vehicle, the burglary offense had not yet been adjudicated. Thus, the prosecutor could not properly inquire as to the grounds for the revocation. This, however, is exactly what occurred at the trial below. After the prosecutor questioned appellant about the burglary, she asked if he had had his probation revoked the same day he was convicted. This enabled the jury to conclude that the probation had been revoked for the burglary offense.

Cross, supra, held that the grounds for a probation revocation may not be raised for impeachment purposes at trial. Roliard, supra, simply held that an offense for which probation has been revoked is admissible under Art. 38.29, V.A.C.C.P., as a final conviction. We fail to see why our decision in Roliard, supra, should render the question asked in the instant case proper. The State's ground for review is overruled.

By his ground of review, appellant agrees that the question was improper, but contends that the court of appeals erred in determining that the error was harmless. We disagree.

The mere asking of an improper question will not constitute reversible error unless the question results in obvious harm to the accused. Yarbrough v. State, 617 S.W.2d 221, 228 (Tex.Cr.App.1981), citing Brem v. State, 571 S.W.2d 314 (Tex.Cr.App.1978). The error caused by asking an improper question will generally be cured if the court instructs the jury to disregard; however, the error will not be cured where it appears that the question alone is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their...