Guerra v. State

• Decision Date: 09 December 1982
• Docket Number: No. 13-81-118-CR,13-81-118-CR
• Citation: 648 S.W.2d 715
• Parties: Manuel Angel GUERRA, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 715

648 S.W.2d 715

Manuel Angel GUERRA, Appellant, v. STATE of Texas, Appellee.

No. 13-81-118-CR.

Court of Appeals of Texas Corpus Christi.

Dec. 9, 1982.

Rehearing Denied Jan. 6, 1983.

J. Manuel Banales, Corpus Christi, for appellant.

Wm. B. Mobley, Jr., Dist. Atty., Corpus Christi, for appellee.

Before NYE, C.J., and UTTER and GONZALEZ, JJ.

OPINION

UTTER, Justice.

Appellant was convicted of murder by a jury and punishment was assessed at 99 years imprisonment. We affirm.

In his first ground of error, appellant contends that the trial court abused its discretion by admitting into evidence eight photographs. Appellant claims that these photographs, though taken from different angles, were "duplicative and repetitive of each other and of the victim," and "... were intended ... to inflame the minds of the jurors and to prejudice the jury against appellant."

The admissibility of photographic evidence rests largely in the discretion of the trial judge. Photographs, once shown to be a true representation of the person, place, or thing they purport to represent, are competent evidence of those things of which it is material and relevant for a witness to give a verbal description. Terry v. State, 491 S.W.2d 161 (Tex.Cr.App.1973).

"Only when the probative value of the photograph is very slight and the inflammatory aspects great will it be an abuse of discretion to admit the photograph." Blansett v. State, 556 S.W.2d 322 (Tex.Cr.App.1977); Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972).

In the case before us, we hold that the photographs introduced by the State simply represented the scene of the crime and enabled the jury to better comprehend the testimony adduced at trial. Their inflammatory nature, if any, did not outweigh their probative value; consequently, no abuse of the trial court's discretion is shown, and appellant's first ground of error is overruled.

At his trial in March, 1980, appellant testified in his own behalf. The State sought to impeach his credibility with evidence of 1966 felony convictions. In his second ground of error appellant claims that the prior convictions were inadmissible because of remoteness.

There was evidence that appellant was first paroled in February, 1968, but violated his parole and was returned to prison. Appellant thought he was then released in the "last part of '68 or first part of '69...." In any event, slightly more than ten years passed between appellant's release from prison and the beginning of the present trial.

"The reason for the adoption of the remoteness limitation on impeachment evidence is that a remote conviction is a poor indication of the accused's present character." Miller v. State, 549 S.W.2d 402 (Tex.Cr.App.1977). The tendency has been to uphold admission of a prior conviction if the period of time between release from prison and trial is less than ten years. Phenix v. State, 488 S.W.2d 86 (Tex.Cr.App.1972). However, the interval of time is not in itself the controlling factor and the facts of each case must determine if a prior conviction is too remote. Dillard v. State, 153 Tex.Cr.R. 134, 218 S.W.2d 476 (Tex.Cr.App.1949). The often referred to ten-year rule of thumb is not always followed. Each case must rest on its own circumstances. McClendon v. State, 509 S.W.2d 851 (Tex.Cr.App.1974). Thus, the question of prior conviction is addressed largely to the discretion of the trial judge. Davis v. State, 545 S.W.2d 147 (Tex.Cr.App.1976).

"The question of remoteness is usually to be determined in the light of the particular facts of each case, especially regarding subsequent conduct of the convict. If there be evidence showing a lack of reformation, or the subsequent conviction of another felony, then the prior conviction is not deemed subject to the objection of remoteness." Crisp v. State, 470 S.W.2d 58 (Tex.Cr.App.1971). (emphasis added)

We have found no case, nor has appellant cited us to one, holding that a conviction older than ten years is, prima facie, inadmissible to impeach a witness; in fact, every case discussing the subject has suggested no fixed guideline, emphasizing dependence on trial court discretion and evidence of lack of subsequent reformation.

In viewing the evidence, it is clear that the convictions are an accurate indication of the accused's present character. Throughout the trial record are references to appellant's continued unlawful behavior. Since his release from prison in late 1969, he has been charged with assault with intent to murder; he has been charged with a weapons violation; he shot a man in "self-defense" in 1969; he admitted to spending 20 days in jail in California; and he testified in detail to carrying a pistol around in Corpus Christi at the time of the offense for which he is now charged. We are not holding that the convictions are revitalized; rather, we hold that there is evidence of lack of reformation which, in the trial court's discretion, justifies admitting the prior convictions as indications of appellant's credibility. Remoteness is not a factor because appellant has not reformed; the old convictions are an accurate indication of the accused's present character.

The trial record also reveals that a major cause of the remoteness of the convictions is the fact that, on as many as four occasions, appellant was not present for his trial; that he was extradited at least twice from California; and that he was supposed to have been arraigned as early as August 20, 1976. The remoteness appellant claims was of his own doing. To rule otherwise than we have would allow appellant to subvert justice by securing advantage through his own wrongdoing.

Finally, any error committed by the trial court was rendered harmless by the evidence offered to establish proof of appellant's guilt. To constitute reversible error, the errors complained of must be calculated to injure the rights of the defendant, or it must appear from the record that the defendant was denied a fair and impartial trial. Beck v. State, 583 S.W.2d 338 (Tex.Cr.App.1979). But where evidence of guilt is clearly established, even Constitutional error may be harmless. Phenix v. State, 488 S.W.2d 759 (Tex.Cr.App.1972).

In this case the evidence of appellant's guilt is overwhelming. An eyewitness testified that he saw appellant shoot the deceased. Appellant's own brother gave a statement to the police on the morning after the murder to the same effect. Two eyewitnesses testified that they heard the shot, rushed into the room, and saw appellant in the process of scooping money off the card table, while standing over the body of the deceased. Another witness testified that he hid after hearing the shot, but saw appellant coming out of the house afterward. Appellant's brother testified on appellant's behalf at trial, but his tendency was to not to remember most of the material facts; he both admitted and denied having signed the statement mentioned previously. The only other witness for the defense was appellant himself; he stated that he had just come in from California on vacation, bringing more than $3000 with him to lend to his brother and father to open a business. He did not know what the business would be. Appellant returned to California on the day after the murder without lending any money to his family. Appellant admits that he was briefly present at the poker game, but insists that the murder occurred after he left, and that the adverse witnesses, all black, were covering for the real culprit. There was testimony that this game had been going on for approximately twenty years and that there had never before been trouble. The jury heard all this evidence and had the opportunity to judge the credibility of the witnesses. Appellant's rights have not been prejudiced. A contrary result, effecting reversal and remand, would allow appellant to benefit from his evident contempt for the law and would wreak substantial injustice. Appellant's second ground of error is overruled.

In his third ground of error, appellant claims that he "was substantially prejudiced and deprived of a fair trial when the prosecutor, in his final argument to the jury on the question of punishment, commented on the length of time appellant would have to serve before being paroled." However, what the prosecutor actually said was: "His parole was revoked, and he was sent back to the State penitentiary and according to the records, he still didn't serve the full five years." Appellant's counsel objected on grounds that "[T]here has been no evidence of that." The court sustained the objection and the jury was instructed to disregard; appellant's motion for mistrial was denied.

Nothing is presented for review when a ground of error presented on appeal varies from an objection raised at trial. Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr.App.1976). However, even if the contention had been properly preserved, error, if any, was harmless.

It is well settled that a jury in a felony case is not authorized to consider parole law in determining the punishment to be assessed. Graham v. State, 422 S.W.2d 922 (Tex.Cr.App.1968). Appellant cites several cases in which improper jury argument resulted in reversal; however, in those cases, the prosecutor clearly urged the jury to consider the parole law, which is not true of the case before us. In Pringle v. State, 511 S.W.2d 35 (Tex.Cr.App.1974) the prosecutor, in his argument during the punishment phase, told the jury that if they assessed punishment at anything less than 30 or 40 years, the defendant "... won't be there and they won't have the opportunity to rehabilitate him ...." The court found no reversible error, stating that "[I]f the parole law were in fact injected into the jury's deliberations ... or if counsel's argument had been more directly suggestive of the matter ..., we would be confronted with a different situation." Whether improper jury argument requires a reversal should be determined on the basis of...