Gordon v. State

• Citation: 651 S.W.2d 793
• Decision Date: 08 June 1983
• Docket Number: No. 68414,68414
• Parties: Roosevelt GORDON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 793

651 S.W.2d 793

Roosevelt GORDON, Appellant, v. The STATE of Texas, Appellee.

No. 68414.

Court of Criminal Appeals of Texas,

En Banc.

June 8, 1983.

Von H. Shelton, Angleton, for appellant.

Jim Mapel, Dist. Atty. and Richard C. Stevenson, Asst. Dist. Atty., Angleton, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ODOM, Judge.

This is an appeal from a conviction for burglary of a building. Punishment, enhanced pursuant to V.T.C.A., Penal Code Sec. 12.42(b), was assessed at ten years.

In his only ground of error appellant contends the State was erroneously allowed to impeach him with a prior conviction over ten years old. As the State points out in its brief, at the punishment stage of the trial appellant admitted he was guilty of the offense. In Brown v. State, 617 S.W.2d 234, 236 (Tex.Cr.App.1981), it was noted that many evidentiary objections made at the guilt stage may be waived by such punishment stage testimony. See authorities cited in Brown. Appellant's admission of guilt at the punishment stage waived the objection asserted in his ground of error.

The judgment is affirmed.

TEAGUE, Judge, concurring.

The majority correctly states that under the law as it presently exists in this State, and because appellant admitted his guilt at the punishment stage of the trial, he waived the objection he had made at the guilt stage of the trial concerning the admissibility of the prior conviction for impeachment purposes.

It is now axiomatic in the law of this State that a defendant who testifies at the punishment stage of the trial, and during his testimony, either on direct or cross-examination, admits his guilt to the offense for which he had earlier pleaded not guilty, has, for all legal purposes, entered a plea of guilty without receiving any of the admonishments which usually go with such a plea. He suffers the consequences that a plea of guilty has, as to the preservation of any error that may have occurred during the guilt stage of the trial. The majority correctly refers to Brown v. State, 617 S.W.2d 234, 236 (Tex.Cr.App.1981), as authority for overruling the appellant's ground of error.

Let there be no mistake about the matter. The above rule of law is indeed a harsh one, and will usually prevent most defendants, in any kind of bifurcated criminal trial, from testifying at the punishment stage of trial, because they will fear that by testifying it may cause waiver of any error which may have occurred during the guilt stage of the trial.

I personally would join four other judges of this Court and vote to abolish the rule of law that this Court has created, and overrule the cases cited in the above part of Brown. However, just recently in Smyth v. State, 634 S.W.2d 721 (Tex.Cr.App.1982), where I set out in my dissenting opinion many, if not all, of the cases applying the doctrine of curative admissibility and waiver of error to the defendant's claim of error because he had testified at the punishment stage of the trial and admitted his guilt, that same plea was made and rejected.

I, therefore, write this concurring opinion only to put defendants and their counsel on notice of what they may expect if the defendant decides to testify at the punishment stage of the trial, and during his testimony makes the equivalent of a plea of guilty to the offense for which he is on trial.

ONION, Presiding Judge, concurring in part and dissenting in part.

Appeal is taken from a conviction for burglary of a building; the punishment, enhanced by allegation and proof of a prior 1969 Texas conviction for possession of marihuana, was assessed by the jury at ten (10) years' imprisonment.

In his only ground of error appellant complains the court erred in allowing the State, over timely objection, to impeach him at the guilt stage of the trial with the prior 1969 conviction which was too remote to be used to affect his credibility as a witness via his own behalf.

At the trial Freeport Police Officer Garry Frick testified he lived at the Freeport Inn, Room 22 on October 10, 1980; that he received a reduced room rate for acting as a security officer for the Inn. About 2:30 or 2:45 a.m. on that above date, he was awakened by a noise sounding like a sliding door to the patio in Room 24. He knew the room to be vacant. As he exited his room into the hallway, appellant came out of Room 24. Frick told appellant he was a police officer and instructed him to "Freeze." Appellant threw a towel at Frick and started back into the room and ran into a wall. Frick then handcuffed appellant and took him to the manager's office. ¹ An antenna cable was found in appellant's pocket. Upon returning to Room 22, Officer Frick found a television set belonging to the Inn on a bed covered with a blanket.

Wei Chuan Lin, owner of the Freeport Inn, testified the appellant was not a registered guest at the inn on October 10, 1980, and that Room 24 was vacant on October 9 and 10. He did not give appellant permission or consent to enter Room 24 or to take anything therefrom.

Testifying in his own behalf at the guilt stage of the trial, the 49-year-old appellant stated he went to the Freeport Inn on the time in question with a girlfriend and met a fellow named Gary or Danny, whom he had known for three years but whose last name was not known to him. Danny had rented Room 22 for himself and Room 24 for the appellant and gave him a key and a receipt showing he had paid $18.50 for Room 24. Appellant explained he and Danny were married men and often rented motel rooms for each other where they took their girlfriends. Appellant did not know what names Danny had used in registering for the rooms.

Appellant, his girlfriend and Danny sat in Room 22 and smoked marihuana and drank whiskey. Danny received a phone call from his wife or girlfriend and said he was expecting "company." Appellant and his girlfriend left. When he returned to Room 24 in the early morning hours, he found the television set smoking and opened a sliding door to let the smoke out, and placed the set on the bed, and was going to get the motel manager when Officer Frick told him to "Freeze" and then knocked him in the head with a gun. Appellant acknowledged that he might have confused the room number that Danny had rented since the officer testified he lived in Room 22, but blamed his bad memory on the lick to his head.

Appellant denied he was guilty of burglary and stated he had not attempted to steal the television set. He stated the room key was taken from him and he had lost the room receipt. Appellant stated Danny was now in Florida, and he (appellant) didn't want to involve his girlfriend by giving her name.

At the conclusion of appellant's testimony on cross-examination a hearing, in the absence of the jury, was held on his objection that the prior 1969 conviction was too remote to be used for impeachment purposes. The court noted the date of the prior conviction was December 10, 1969, that appellant was received at the Department of Corrections on December 23, 1969, that appellant had been given credit on his two year sentence from July 10, 1968, and that he probably didn't serve long. The objection was overruled. In the jury's presence appellant admitted he had been convicted in 1969 of possession of marihuana, and that with the credit on his sentence he had served six months. The State concludes in its brief the release from the Department of Corrections was July 9, 1970 and that approximately 10 years and six months elapsed from release until the time of trial testimony on January 13, 1981. There was other evidence at the guilt stage offered by the State or defense which showed appellant smoked marihuana, had a drinking problem, had been arrested for public intoxication and his wife had filed charges on him.

At the penalty stage of the trial appellant on direct examination testified:

"Q Do you feel as if you had not been drinking or had the problem with alcoholic beverages you would have committed this crime?

"A No, sir.

"Q Do you feel--are you sorry for the commission of this offense?

"A Yes, sir. I am sorry."

On cross-examination the record reflects:

"Q Mr. Gordon, are you telling this jury now that you are admitting to your guilt in this crime?

"A Yes, sir, yes, sir, I am guilty, but not for stealing like they got it hooked up. It wasn't that way.

"Q But you are guilty of burglary?

"A Well, I don't know what you all call burglary, so whatever the jury came out with, twelve people, all of them ain't going to be wrong, so I was at the place at the wrong time. It was a trap set-up, that is all I can say."

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. Bustillos v. State, 464 S.W.2d 118, 119 (Tex.Cr.App.1971), and cases there cited.

Evidence of a prior final conviction for a felony or for a misdemeanor involving moral turpitude which is not too remote is admissible to impeach a witness including a testifying defendant. Taylor v. State, 612 S.W.2d 566 (Tex.Cr.App.1981); Davis v. State, 545 S.W.2d 147 (Tex.Cr.App.1976); Patterson v. State, 170 Tex.Cr.R. 84, 338 S.W.2d 469 (Tex.Cr.App.1960).

While the admission of a prior conviction for impeachment is within the discretion of the trial judge, in determining whether a prior conviction is too remote it has been generally held that if the witness has been released from prison within 10 years of his trial testimony, the conviction is not too remote and evidence of the conviction is admissible. Milligan v. State, 554 S.W.2d 192 (Tex.Cr.App.1977); Miller v. State, 549 S.W.2d 402 (Tex.Cr.App.1977); Nichols v. State, 494 S.W.2d 830 (Tex.Cr.App.1973); Johnson v. State, 494 S.W.2d 870 (Tex.Cr.App.1973); Penix v. State, 488 S.W.2d 86 (Tex.Cr.App.1972); Ochoa v. State, 481 S.W.2d 847 (Tex.Cr.App.1972); ...