Ex parte Menchaca

• Decision Date: 12 May 1993
• Docket Number: No. 71567,71567
• Citation: 854 S.W.2d 128
• Parties: Ex parte Eddie MENCHACA.
• Court: Texas Court of Criminal Appeals

Page 128

854 S.W.2d 128

Ex parte Eddie MENCHACA.

No. 71567.

Court of Criminal Appeals of Texas En Banc.

May 12, 1993.

Ian Inglis and Erik S. Goodman, Austin, for appellant.

Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

BAIRD, Judge.

This is a post-conviction application for a writ of habeas corpus brought pursuant to Tex.Code Crim.Proc.Ann. art. 11.07, § 2. Applicant was convicted of delivery of a controlled substance and sentenced to seventy-three years confinement. The Court of Appeals affirmed. Menchaca v. State, No. 03-90-0028-CR (Tex.App.--Austin, delivered February 13, 1991, pet. ref'd). Applicant contends he was denied the effective assistance of counsel at trial. ¹

Applicant was tried for delivery of 0.13 grams of methamphetamine. During cross-examination, the State elicited testimony from applicant concerning his prior conviction for rape. ² Applicant contends his trial counsel was ineffective in failing to file a motion in limine to prohibit introduction of a prior conviction; failing to object to the prosecutor's examination regarding the prior conviction; failing to request, or object to the omission of, an instruction limiting the jury's consideration of the prior conviction to impeaching applicant's credibility; and, reminding the jury of the prior offense during his closing argument.

This case presents two issues. The threshold issue is whether the prior conviction was admissible and, if inadmissible, whether trial counsel was ineffective in failing to contest its admission.

I. THE FACTS

During the guilt/innocence phase of the trial, Gilbert Towns, an undercover narcotics officer, testified he and applicant drove to a parking lot in applicant's vehicle and parked alongside a vehicle occupied by Ida Parmer, another undercover officer. Towns exited the truck, walked to Parmer's car and sat for a moment. Towns then walked around the vehicle and stood between applicant and Parmer. Towns testified applicant handed him a cassette tape box containing a controlled substance and Towns delivered the box to Parmer. Towns further testified Parmer removed the controlled substance and placed $50.00 in the box. Parmer handed the box to Towns, who handed it to applicant. Towns' testimony was corroborated by Parmer. Finally, Towns denied making any comments to his former girlfriend, Glenda Holubec, after applicant's arrest.

Applicant testified he never touched the cassette tape box. He testified Towns must have passed the controlled substance to Parmer when Towns got into Parmer's car. To explain why Towns would perjure himself, applicant testified to jealousy and animosity between the two men arising from an incident wherein applicant confronted Towns about dancing too much with applicant's girlfriend and "hit[ting] up on her."

At the beginning of the State's cross-examination of applicant the following occurred:

Q. [Applicant], is it your testimony today that you have no knowledge of the drug transaction that took place on September 8th, 1988, in the M-System's parking lot up on North Bryant, in Tom Green County, Texas?

A. No, Sir.

Q. That's not your testimony?

A. No, Sir. I have no knowledge of any drugs.

Q. Okay. Then it is your testimony that you don't have any knowledge?

A. Yes, Sir.

Q. Okay, [Applicant], have you ever been convicted of an offense involving moral turpitude?

A. You mean a felony, Sir?

Q. Yeah.

A. Yes, Sir.

Q. You have been?

A. Yes, Sir.

Q. Okay. What was that felony you were convicted of?

A. Rape, Sir.

Applicant's testimony relating to Towns' animosity was corroborated by applicant's girlfriend, who testified that one evening, while she, applicant, and Towns were out, Towns had danced with her "quite a bit," and "[Applicant] was very upset about it." Additionally, Towns' former girlfriend, Glenda Holubec, testified she had a conversation with Towns after applicant's arrest and Towns' expressed remorse over what had happened to applicant.

It is evident the jury struggled with the conflicting testimony. Shortly after beginning its deliberations, the jury delivered a note to the trial judge requesting portions of the State's evidence. Approximately three hours later, the jury delivered a second note to the trial judge indicating it was deadlocked. Forty minutes after receiving a "dynamite charge" from the judge, the jury sent word that it had reached a verdict. ³

II. ADMISSIBILITY

We must first decide whether evidence of applicant's prior conviction was admissible. After a hearing on this application, the habeas judge made the following conclusions and findings:

I specifically find that [applicant's] probation in the rape case was not revoked, but I further find that the term of probation expired by operation of time. I conclude as a matter of law that mere expiration of the probationary term does not constitute satisfactory conclusion of probation. I find that [applicant] did not "satisfactorily" or "successfully" complete the term of his probation within the meaning of [Tex.R.Crim.Evid. 609(c) ]. I find that the introduction into evidence for purposes of impeachment of the prior rape conviction was not barred per se by any of the provisions of [Rule 609]. ⁴

Applicant contends the prior offense was inadmissible under Tex.R.Crim.Ev. 609(c) because he had completed his term of probation. For the following reasons, we agree. ⁵

Since September 1, 1986, the admissibility of prior convictions for the purpose of impeachment has been governed by Tex.R.Crim.Ev. 609. The relevant portions of Rule 609 are as follows:

(a) General rule. For purposes of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.

(b) Time Limit. 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.

(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) based on the finding of the rehabilitation of the person convicted, the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure, and that person has not been convicted of a subsequent crime which was classified as a felony of involved moral turpitude, regardless of punishment, or (2) probation has been satisfactorily completed for the crime for which the person was convicted, and that person has not been convicted of a subsequent crime which was classified as a felony or involved moral turpitude, regardless of punishment, or (3) based on a finding of innocence, the conviction has been the subject of a pardon, annulment, or other equivalent procedure.

This case presents our first opportunity to examine the admissibility of prior conviction impeachment evidence under Rule 609(c). To resolve this issue we draw on our decisional authority interpreting Tex.Code Crim.Proc.Ann. art. 38.29, the predecessor of Rule 609. Under art. 38.29, impeachment with a prior conviction was restricted to final convictions, suspended sentences that had not been set aside and probations that had not expired. Cross v. State, 586 S.W.2d 478, 481 (Tex.Cr.App.1979); Kirvin v. State, 575 S.W.2d 301, 303 (Tex.Cr.App.1978, panel opinion). In Adams v. State, 685 S.W.2d 661, 669 (Tex.Cr.App.1985), we found error where the State impeached a witness whose probationary term had expired. The foregoing holdings are consistent with those of the courts of appeals interpreting Rule 609. See, Wunneburger v. State, 844 S.W.2d 864, 867 (Tex.App.--Amarillo, 1992); Cunningham v. State, 815 S.W.2d 313, 318 (Tex.App.--Dallas, 1991); Cryan v. State, 798 S.W.2d 333 (Tex.App.--Beaumont, 1990); Mead v. State, 759 S.W.2d 437, 443 (Tex.App.--Fort Worth, 1988).

In light of these holdings, we hold that there is no distinction between a probation period that has expired and one that is satisfactorily completed. Therefore, when the probationary term has expired and the witness has not been subsequently convicted of a felony or crime involving moral turpitude, the prior conviction is not admissible for impeachment purposes. Rule 609(c). Accordingly, we hold the evidence of applicant's prior conviction was inadmissible.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Having determined applicant's prior conviction was inadmissible, we next consider whether trial counsel was ineffective for failing to prevent its admission. The standard by which we review the effectiveness of counsel at the guilt-innocence stage of a non-capital trial was articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by this Court in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App.1986). The Supreme Court in Strickland outlined a two-step analysis. First, the reviewing court must decide whether trial counsel's performance failed to constitute "reasonably effective assistance." Stated differently, the question is whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. If counsel's performance fell below the objective standard, the reviewing court then must determine whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. A reasonable probability is a "probability sufficient to...