Buffington v. State, 04-88-00605-CR

• Decision Date: 31 October 1990
• Docket Number: No. 04-88-00605-CR,04-88-00605-CR
• Citation: 801 S.W.2d 151
• Parties: James C. BUFFINGTON, Sr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 151

801 S.W.2d 151

James C. BUFFINGTON, Sr., Appellant, v. The STATE of Texas, Appellee.

No. 04-88-00605-CR.

Court of Appeals of Texas,

San Antonio.

Oct. 31, 1990.

Rehearing Denied Nov. 30, 1990.

Mark Stevens, San Antonio, for appellant.

Fred G. Rodriguez, Sam Ponder, Julian Lopez, Edward Shaughnessy, III, Criminal Dist. Attys., San Antonio, for appellee.

Before CHAPA, PEEPLES and CARR, JJ.

OPINION

CARR, Justice.

Appellant, James C. Buffington, Sr., was indicted for the offense of capital murder. He was tried before a jury and was found guilty of the lesser included offense of murder. The jury assessed punishment at confinement for life. Appellant appeals that conviction. We affirm as reformed.

On March 20, 1976, Chere Buffington, appellant's wife, was shot and killed. In 1977, appellant was indicted for that killing. He was tried in 1978 and received the death penalty. In 1983, the Texas Court of Criminal Appeals reversed the conviction and remanded for a new trial on the grounds that the trial court had excused venirepersons in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See Buffington v. State, 652 S.W.2d 394 (Tex.Crim.App.1983) (en banc). Subsequently, appellant received another trial in 1988. The second trial led to this appeal. Since appellant does not challenge the sufficiency of the evidence, a more detailed recitation of the facts is not necessary.

In appellant's first point of error, appellant contends that the trial court erred in not permitting him to impeach David Savere, a State's witness, with evidence of Savere's felony convictions. Savere was convicted in 1969 of burglary and attempted burglary. He was sentenced to three years imprisonment and was released from prison in 1970.

The trial court excluded the attempted impeachment on the grounds that the convictions were too remote under Rule 609(b) of the Texas Rules of Criminal Evidence. That rule provides:

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

TEX.R.CRIM.EVID. 609(b).

Appellant's first point of error relies upon two arguments. Appellant's first argument is two-fold. First, appellant contends that in his second trial, the trial court should have considered Savere's 1969 convictions as less than ten years old and should have admitted them. Second, appellant contends that the court should not have considered Rule 609(b) of the Texas Rules of Criminal Evidence on the basis that Rule 609(b) was not in effect at the time of appellant's first trial.

To support his argument, appellant relies on article 44.29(a) of the Texas Code of Criminal Procedure, which provides in part:

Where the ... Court of Criminal Appeals awards a new trial to the defendant on the basis of an error in the guilt or innocence stage of the trial ... the cause shall stand as it would have stood in case the new trial had been granted by the court below.

TEX.CODE CRIM.PROC.ANN. art. 44.29(a). Appellant also relies on Rule 32 of the Texas Rules of Appellate Procedure, which provides in part:

Granting a new trial restores the case to its position before the former trial including, at the option of either party, arraignment or pretrial proceedings initiated by that party.

TEX.R.APP.P. 32.

Part one of appellant's first argument was addressed and rejected in Ross v. State, 658 S.W.2d 846 (Tex.App.--Fort Worth 1983), aff'd on other grounds, 678 S.W.2d 491 (Tex.Crim.App.1984). In Ross, the defendant argued that on retrial it would be grossly unfair to him to lose the opportunity to impeach a witness when the opportunity was present in the first trial. The court noted that it had no record of the first trial to determine if the witness' prior conviction was used for impeachment. The court concluded, however, that the events in the first trial were irrelevant in the second trial. Ross, 658 S.W.2d at 848. Appellant attempts to distinguish Ross on the basis that in the present case, unlike in Ross, the record shows that Savere's 1969 convictions were used for impeachment in the first trial. The distinction is of no importance. The Ross court did not hold that the argument failed because the record did not support it; the court held the events of the first trial were irrelevant in the second.

In Davis v. State, 545 S.W.2d 147 (Tex.Crim.App.1976), the court addressed an argument by the State that a twelve year-old prior conviction of the defendant was admissible because there was only a ten year lapse of time from his release in that conviction and the commission of the offense for which he was being tried. The court rejected the State's argument and held that "[t]he date of trial is the controlling time for computation because the purpose of admitting prior convictions at the guilt stage of the trial is to allow possible impeachment." Id. at 150. The court quoted from the dissenting opinion in McClendon v. State, 509 S.W.2d 851, 854 (Tex.Crim.App.1974): "The rule of remoteness is based upon reason. An accused should not be impeached by conviction which occurred so far in the past that they do not shed any light on his credibility at the time of trial." Davis, 545 S.W.2d at 150.

We reject appellant's argument that the admission of Savere's prior convictions in the first trial required their admission in the second trial. The issue raised at the second trial was the witness' credibility at the time he testified. The controlling time for determining remoteness of the prior convictions was the date of the second trial.

Regarding part two of appellant's first argument, we hold that the Texas Rules of Criminal Evidence are procedural provisions and not substantive provisions. In addition, we hold that since Rule 609(b) was in effect at the time of appellant's second trial, ¹ it was applicable as a procedural provision to be followed by the court during that trial. See Hardeman v. State, 552 S.W.2d 433, 438 (Tex.Crim.App.1977).

In the alternative, appellant's second argument recognizes that Rule 609(b) generally excludes remote convictions, but appellant argues for an exception to the general rule on the grounds that Savere's convictions had been admitted at appellant's first trial in 1978. Appellant further argues that since his first trial was reversed based on reversible error committed by the State, the trial court in appellant's second trial erred by permitting the State to profit from its reversible error in the first trial. Appellant's second argument is not that Rule 609(b) conflicts with Article 44.29(a) of the Texas Code of Criminal Procedure and Rule 32 of the Texas Rules of Appellate Procedure; instead, appellant argues that since permitting the State to profit in the second trial from its error in the first trial is "unjust," the trial court erred in not applying the "in the interest of justice" exception as contained in Rule 609(b) when viewed in the light of Article 44.29(a) and Rule 32. Appellant's argument relies in part on alleged prosecutorial misconduct in the first trial. See Buffington, 652 S.W.2d at 396 (Clinton, J., dissenting); Buffington v. Copeland, 687 F.Supp. 1089 (W.D.Tex.1988).

Having held that Rule 609(b) was applicable in appellant's second trial, the question before this court is whether the trial court abused its discretion in excluding the evidence. The general rule is that in the absence of a clear abuse of discretion, the ruling of the trial court should not be disturbed by a reviewing court. Crank v. State, 761 S.W.2d 328 (Tex.Crim.App.1988) (en banc), cert. denied, 493 U.S. 874, 110 S.Ct. 209, 107 L.Ed.2d 162 (1989); Ricondo v. State, 657 S.W.2d 439, 444 (Tex.App.--San Antonio 1983, no pet.). In Crank, the court concluded, in reviewing the trial court's admission of an extraneous offense: "The analysis is for the trial judge in the first instance and, absent a clear abuse of discretion, his decision will not be disturbed on appeal." Crank, 761 S.W.2d at 342. ² Under Rule 609(b), the proponent of the admission of a prior conviction that exceeds the ten year rule must persuade the trial court, "in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." TEX.R.CRIM.P. 609(b) (emphasis added).

Prior to the adoption of our Rules of Criminal Evidence, there was no rigid time period for determining remoteness. The question of remoteness was mostly within the discretion of the trial court, but the general rule of thumb was that a prior conviction was admissible if the release from confinement was less than ten years before the trial. Taylor v. State, 612 S.W.2d 566, 572 (Tex.Crim.App.1981); Davis, 545 S.W.2d at 150. Case law recognized that the interval of time between release from prison and trial was not in itself the controlling factor. Davis, 545 S.W.2d at 150. The facts and circumstances of each case were examined. Among the factors that were considered were the youthfulness of the person at the time of the prior conviction, subsequent conduct reflecting a lack of reformation, the nature of the offense, and the length and severity of the penalty assessed in the prior conviction. Id.

Although Rule 609(b) sets a strict ten year limitation on the remoteness of a prior conviction for impeachment purposes, the rule allows the trial court to exercise its discretion when appropriate in admitting prior convictions outside of the ten year period. The types of factors examined in Davis for determining remoteness provide appropriate guidelines for a trial court when confronted with the...