Delk v. State

• Citation: 855 S.W.2d 700
• Decision Date: 21 April 1993
• Docket Number: No. 70305,70305
• Parties: Monty Allen DELK, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 700

855 S.W.2d 700

Monty Allen DELK, Appellant, v. The STATE of Texas, Appellee.

No. 70305.

Court of Criminal Appeals of Texas En Banc.

April 21, 1993.

Rehearing Denied May 19, 1993.

William M. House, Jr., Palestine, for appellant.

Richard Handorf, Dist. Atty. and Joe Bridges, Asst. Dist. Atty., Palestine, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

WHITE, Judge.

Appellant was convicted of the offense of murder committed in the course of a robbery under V.T.C.A. Penal Code § 19.03(a)(2), and in accordance with the jury's affirmative answers to special issues under Article 37.071, § (b)(1) and (2), his punishment was assessed at death. Appeal to this Court is automatic. Id., § (h).

While appellant does not challenge the sufficiency of the evidence to support his conviction, we believe that a short recitation of the facts is necessary. In November of 1986, Gene Olan "Bubba" Allen II, the deceased, and his wife Sheila, were running an ad in the Houston County Courier offering to sell a Chevrolet Camaro. On Friday, November 28, a man called and spoke to Sheila about the car. She remembered that "part of" the man's name was "Allen" because she had said to him, "Oh, that's our last name too." The man told her he was calling from a pay phone, that he had no transportation, and wanted the Camaro brought to the parking lot of Brookshire's Grocery Store, in Crockett, so that he could test drive it. It was shown that at this time appellant had just been evicted from a rooming house a block and a half away from Brookshire's, and that residents of the rooming house had to use a pay phone across the street. Appellant had recently lost his Volkswagen to another resident in a poker game. Also, within the last month he had bought a shotgun and sawed it off.

Bubba Allen left his house at about 9:00 a.m. on Saturday, November 29, to wash the Camaro and then meet the caller from the day before. At the time he had at least one $100 bill in his wallet, along with a payroll check. Sheila next saw her husband at 11:00 or 11:15 that morning as she was passing through Crockett, riding in a car driven by her sister. Coming upon an intersection, she saw the Camaro pull up from the opposite direction. She could see Bubba in the passenger side, and a man she positively identified as appellant, driving. Appellant was wearing an army jacket.

Shortly before 1:30 p.m. that day Bubba Allen's body was found in a ditch beside a fairly remote stretch of road three miles south of Palestine, in Anderson County. When emergency units arrived and turned the body over, it was limp and blood still oozed from a shotgun wound above and behind the left ear. Allen's wallet was missing. A neighbor a hundred yards down the road had heard a single gunshot at 1:00 p.m. Sometime between 1:30 and 2:00 p.m., a woman who knew Allen saw what she took to be his Camaro twenty-eight miles south of Palestine, heading toward Crockett. The only person she could see in the Camaro was a man, but it was not Allen.

About 5:30 p.m. appellant showed up in Jasper and talked Phillip Johnson into accompanying him to New Orleans. Johnson observed a sawed-off shotgun in the Camaro, and also noticed appellant had an atypical amount of cash in his possession. At first appellant told Johnson he was purchasing the Camaro from a relative named "Bubba." Later he told Johnson "he killed somebody and got $75." Asked whether appellant had seemed nervous, Johnson testified he had been "shaky a lot." Along the way appellant disposed of a wallet that fit the description of the one that had belonged to Allen, explaining that "he had to get rid of some evidence." Johnson saw appellant tear up a check and throw it out the window, purportedly because he could not cash it.

Appellant and Johnson were arrested in Winnfield, Louisiana, on December 2, 1986. The Camaro was registered in the name of "Gene Allen II," although appellant told police he had borrowed the car from his sister. Inside the car police found the sawed-off shotgun, later shown to be consistent with the weapon that had killed Allen. They also recovered an army jacket. In his wallet appellant carried a photograph of Sheila Allen, taken from Bubba Allen's wallet, as well as a copy of the ad from the Houston County Courier listing the Camaro. At the police station appellant threatened to kill Johnson if he said anything.

I.

In his first point of error, appellant complains of the trial court's decision to not allow impeachment of State's witness Phillip Johnson through proof of a prior conviction. Appellant asserts that Mr. Johnson left a false impression on the jury that he had never been in a courtroom before. Appellant further believes that his was a case based primarily on circumstantial evidence, a substantial portion of which was the testimony of said witness. He argues, therefore, that the credibility of this witness was crucial to the State's case.

The State filed a pre-trial motion in limine to prevent impeachment with two prior convictions. The motion was sustained. ¹ However, appellant believes that questions during direct examination of this witness "opened the door" about his criminal history and appellant should have therefore been allowed to delve into these matters. The transcript reveals the following:

. . . . .

Q: (by the State) Okay. Phillip, are you nervous?

A: (by Mr. Johnson) Yes, sir.

Q: Is this the first time you've ever been in a courtroom--

A: Yes, sir.

Q: --as a witness?

A: Yes, sir ...

The State asserts that Mr. Johnson's first answer was non-responsive because he interrupted the prosecutor before he completed his question. The State asserts that Mr. Johnson's premature answer was indicative of his response to the preceding question, where he said he was nervous. The State argues that the initial answer given by Mr. Johnson should be ignored and the two questions viewed as one.

When attacking the credibility of witnesses, evidence of prior criminal convictions shall be admitted only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value outweighs its prejudicial effects to a party. Tex.R.Crim.Ev. 609. However, an exception to Rule 609 applies when a witness makes statements concerning his past conduct that suggest he has never been arrested, charged, or convicted of any offense. Prescott v. State, 744 S.W.2d 128, 131 (Tex.Cr.App.1988); Hammett v. State, 713 S.W.2d 102, 105 (Tex.Cr.App.1986); Ochoa v. State, 481 S.W.2d 847, 850 (Tex.Cr.App.1972). Where the witness creates a false impression of law abiding behavior, he "opens the door" on his otherwise irrelevant past criminal history and opposing counsel may expose the falsehood. Prescott v. State, 744 S.W.2d, at 131; Hammett v. State, 713 S.W.2d, at 105; Ochoa v. State, 481 S.W.2d, at 850.

In Prescott, the trial court allowed the State to impeach a defendant who had used the phrase "this is my first time going through this " when responding to a question about his attorney's decision to secure two statements on one day. Prescott v. State, 744 S.W.2d, at 130 (emphasis added). Even though defense counsel clarified his client's answer during subsequent voir dire, the trial court believed that the defendant created a false impression about his criminal history. Id. It therefore allowed the prosecutor to delve into a felony conviction which was secured against the defendant one year earlier. Id. In finding the trial court's decision to allow impeachment in error, this Court focused on the defendant's answer in relation to the question he was asked. Id., at 131. Since the question pertained to the defendant's opinion of legal procedures employed by his attorney, we did not believe that the defendant's use of the phrase "going through this" suggested that he had never been the subject of a criminal proceeding. Id., at 131-132. We held that the defendant's answer was responsive to the question asked and the obvious interpretation of the answer was that he had no opinion as to whether his attorney's decision to take two statements on one day was appropriate or unusual. Id., at 131.

In Hammett, the defendant was charged with driving while intoxicated. Hammett v. State, 713 S.W.2d, at 101. On direct examination, he was asked about a prior conviction for public intoxication. Id., at 104. His attorney followed-up this inquiry with "Is that the only time you have been arrested for public intoxication ?", to which the defendant answered "Yes, sir." Id. (emphasis added). The prosecutor then argued that the defendant had created the impression that he had never been arrested for any other offenses than public intoxication. Id. The prosecutor therefore believed that he should be allowed to ask the defendant about other convictions secured against him. Id. The trial court agreed and allowed questioning on a prior conviction for criminal mischief. Id., at 104-105. In holding that it was error to admit the prior conviction for impeachment purposes, we found that when determining to what extent a colloquy "opened the door", it is important to examine how broadly one would interpret the question that was asked. Id., at 106. In our analysis, we recognized that intonation is very important when attempting to reveal the import of a question. This court therefore looked for any evidence in the record that would reflect the tenor of the question. Id. Finding none, we assumed the question was asked just as it appeared in the record and that the tenor was no different than the "black letters" reflected. Id. Additionally, we believed that the major substantive issue in the case would influence how broadly the question would be interpreted. Id. Since the issue here was whether the defendant was intoxicated when his vehicle was stopped, we found that the narrower import of the question was the more likely interpretation, i.e. that he only had...