Bustillos v. State
Decision Date | 17 February 1971 |
Docket Number | No. 43390,43390 |
Citation | 464 S.W.2d 118 |
Parties | Robert BUSTILLOS, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Blanchard, Clifford & Gilkerson, by John S. Sims, of counsel, Lubbock, for appellant.
Blair Cherry, Jr., Dist. Atty., Lubbock, Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for assault with intent to murder with malice aforethought. The punishment, assessed by the jury, was 25 years.
The grounds of error relate to the court's charge, the appointment of an interpreter, and the court's refusal to restrict the State's right to impeach appellant by use of a prior felony conviction in the event the appellant took the stand at the guilt stage of the bifurcated trial.
The sufficiency of the evidence is not challenged. The State's evidence reflects that in the early morning hours of September 1, 1968, about 2 or 3 a.m., the appellant Bustillos motioned to Domingo Enriquez, the complaining witness, to step outside the Reyna's Cafe located in the city of Lubbock. When Enriquez stepped outside the cafe the appellant, who 'looked like he was kind of drunk or * * * was smoking something' pulled a .22 caliber pistol from his pocket and fired four times, striking Domingo Enriquez twice in the wrist and once in the stomach.
Guadalupe Enriquez came to the aid of his brother and was shot twice by the appellant who then left the scene.
The attack upon the complaining witness appears to have been unprovoked. While both parties had been in the cafe earlier, it was shown they did not know each other and that there had not been any prior difficulty.
Initially, appellant urges the court erred in refusing his 'motion to keep the State from inquiring into' his 'past history of criminal conviction on cross-examination, thus depriving him of his right to testify on his behalf without inflaming and prejudicing the minds of the jurors.' He contends he was faced with the dilemma of testifying in his own behalf and being prejudiced by evidence of his prior conviction or of remaining silent and being prejudiced by his silence.
After the State rested its case in chief at the guilt stage of the trial and the motion for instructed verdict had been overruled, the appellant urged his motion. Testifying in the absence of the jury the 50 year old appellant related that when he left the cafe on the date in question a 'real drunk boy' wanted to fight and pulled out a gun which he (the appellant) took away from the boy and shot the boy with when the attack continued, and he shot another man who came running towards him. In essence, he related he had acted in self-defense. He admitted he had been sentenced to life imprisonment in 1948 for murder, had been paroled in 1958 and that such parole had been revoked 'for marijuana cigarettes' and that he had been released again on parole two and one-half years prior to the alleged offense.
Upon this testimony the appellant requested the court to grant his motion to restrict impeachment. When the court refused to grant the motion the appellant did not take the stand in the jury's presence and offered no evidence in his behalf.
It is well established that a defendant who takes the stand as a witness on the trial on the merits may be cross-examined and impeached in the same manner as any other witness. This principle is unquestioned. Texas Law of Evidence, McCormick and Ray, Vol. I, Chapter 8, Sec. 643, p. 487; 1 Branch's Ann.P.C., 2d ed., Sec. 168, p. 170 and cases there cited; 62 Tex.Jur.2d, Witnesses, Sec. 205, p. 130; Shelton v. State, Tex.Cr.App., 397 S.W.2d 850. See also Bendelow v. United States, 418 F.2d 42, 5th Cir. Cf. Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732.
Thus when an accused voluntarily elects to so testify he subjects himself to any legitimate cross-examination within the rules of evidence.
Since the early case of Lights v. State, 17 S.W. 428 (1886--Court of Appeals), the rule was established that the credibility of a witness in a criminal case could be attacked by a showing that he had been convicted of a crime. There are, however, some limitations upon the rule which developed. The conviction must be for a felony or a misdemeanor involving moral turpitude, the conviction must be final and must have occurred at a time sufficiently recent to have some bearing on the present credibility of the witness and the evidence must be limited to the fact of the conviction itself and details thereof may not be shown.
As the rule in Texas criminal cases grew, it also became permissible to attack the credibility of a defendant or other witness by the fact that he was charged by complaint, information or indictment with a felony or misdemeanor involving moral turpitude. See Carroll v. State, 32 Tex.Cr.R. 431, 24 S.W. 100; Chandler, 'Attacking Credibility of Witnesses By Proof Of Charge Or Conviction Of Crime,' 10 Tex.Law Rev. 257. See also 161 A.L.R. 233, 242, 248. This Texas rule allowing proof of a charge of crime for the purpose of impeachment was contrary to the general rule prevailing elsewhere. See 10 Tex.Law Rev. 257, supra, at p. 264.
Wisely, in 1951 the Legislature moved to eliminate the use of a criminal charge in this manner. Article 732a, Vernon's Ann.C.C.P. (Acts 1951, 52nd Leg., Ch. 458, p. 814) provided:
'The fact that a defendant in a criminal case, or a witness in a criminal case, is or has been, charged by indictment, information or complaint, with the commission of an offense against the criminal laws of this State, of the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment, information or complaint a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the period of probation has not expired.'
While the Court of Criminal Appeals recognized the expressed intent of the Legislature to exclude extraneous offenses for impeachment which had resulted in a final conviction (except in unexpired probation and suspended sentence cases), it held that the statute did not change, alter or vary the long established rule that proof of a prior final conviction for crime will be received only when the offense is a felony or one involving moral turpitude which is not too remote. Neill v. State, 158 Tex.Cr.R. 551, 258 S.W.2d 328; Dempsey v. State, 159 Tex.Cr.R. 602, 266 S.W.2d 875; Mauldin v. State, 165 Tex.Cr.R. 405, 308 S.W.2d 36; Dukes v. State, 161 Tex.Cr.R. 423, 277 S.W.2d 710; Wardrope v. State, 170 Tex.Cr.R. 305, 340 S.W.2d 498; Ridler v. State, Tex.Cr.App., 375 S.W.2d 447.
And the Legislature never sought by legislative enactment to vary such interpretation. In fact, Article 732a, supra, was brought forward in the 1965 Code of Criminal Procedure unchanged except for the addition of one sentence at the conclusion thereof which reads: 'In trials of defendants under Article 39.09, it may be shown that the witness is presently charged with the same offense as the defendant at whose trial he appears as a witness.'
The construction earlier placed upon former Article 732a was also placed upon the new Article 38.29. Stephens v. State, Tex.Cr.App., 417 S.W.2d 286; Hall v. State, Tex.Cr.App., 402 S.W.2d 752.
The rule in this state for impeaching by use of a prior conviction a defendant or other witness in a criminal case would appear to be well established.
Unfortunately perhaps for the bench and bar, the rule in civil cases in Texas is different. 1
The appellant recognizes the past interpretations that have been given Article 38.29, supra, and does not urge an adoption of the civil rule but contends this court should adopt and apply the Luck doctrine (Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763) espoused by the United States Court of Appeals for the D.C. Circuit. He contends a better balance between relevance and prejudice could be struck without violating the legislative intent expressed in Article 38.29, supra.
In Luck the court was faced with a testifying defendant charged with house breaking against whom the prosecutor used a prior conviction of grand larceny over objection. The applicable statute (14 D.C. Code Ann. 14--305) read in its pertinent parts:
On appeal the prosecution contended the statute permitted the impeachment of any witness in the manner utilized as a matter of right.
While the conviction was reversed on another ground, a large portion of the opinion was devoted to the impeachment question. Judge McGowan, writing for the majority, seized upon the word 'may' used in the statute, noting it had been used instead of the word 'shall.' The majority thus concluded 'the trial court is not required to allow impeachment by prior conviction every time a defendant takes the stand in his own defense.' The prior conviction 'may' be used if the trial judge so decides, leaving room for the operation of the court's sound discretion as the circumstances unfold in a particular trial.
Judge McGowan further stated:
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