Hoffman v. State

• Decision Date: 15 May 1996
• Docket Number: No. 10-94-246-CR,10-94-246-CR
• Citation: 922 S.W.2d 663
• Parties: Stephen Scott HOFFMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 663

922 S.W.2d 663

Stephen Scott HOFFMAN, Appellant, v. The STATE of Texas, Appellee.

No. 10-94-246-CR.

Court of Appeals of Texas Waco.

May 15, 1996.

Rehearing Overruled June 5, 1996.

Joe L. Sheppard, Burleson, for appellant.

Dale S. Hanna, District Attorney, James S. Cawthon, Jr., Asst. District Attorney, Larry Chambless, Asst. District Attorney, Cleburne, for appellee.

Before CUMMINGS and VANCE, JJ.

OPINION

CUMMINGS, Judge.

Appellant Stephen Scott Hoffman was indicted on one count of aggravated sexual assault and two counts of indecency with a child, all three counts stemming from the same incident. TEX.PENAL CODE ANN. § 21.11, 22.021 (Vernon 1994 & Supp.1996). Hoffman entered an open plea of guilt, which preceded a trial before the jury on punishment. Punishment was assessed by the jury at 32 years' confinement and no fine on the aggravated sexual assault count and ten years' confinement and a $10,000 fine on each of the indecency counts.

Hoffman raises five points on appeal: (1) the trial court committed fundamental error in permitting a convicted felon to sit on the jury; (2) the evidence was factually insufficient to sustain his conviction on all three counts; (3) and (4) the trial court erred in overruling his challenges for cause against two of the jurors; and (5) the trial court committed fundamental error in permitting the State to make an improper jury argument. We affirm.

I. PROCEDURAL AND FACTUAL BACKGROUND

At and before the time of the offenses, Hoffman was working as a youth minister at a church in Glen Rose. The victim's mother approached Hoffman and asked him if he would be able to visit with her son who was having behavioral and emotional problems. Hoffman agreed to help the victim and visited with him on several occasions over a period of a couple of months. At some time during these few months, Hoffman asked the victim's mother if she would allow the victim to spend the night at his apartment. The mother, believing from Hoffman that at least one other child would be spending the night with her son, gave her consent. On or about May 15, 1992, the victim, alone, spent the night at Hoffman's apartment and during that evening he and Hoffman engaged in homosexual conduct. The victim reported the incident about a year and a half later to a counselor at a home for troubled boys where the victim was living at the time.

II. WHETHER THE SITTING OF A CONVICTED FELON ON HOFFMAN'S JURY CONSTITUTED FUNDAMENTAL ERROR

In his first point of error Hoffman complains that his conviction must be reversed because a convicted felon sat on his jury, in violation of his rights under the Texas Constitution. See TEX. CONST. art. XVI, § 2. Hoffman's argument is without merit.

During voir dire, venireman Darrell Point stated that he had been convicted of the felony of burglary approximately twenty-nine years earlier when he was 17 years old. He further stated that he received a probated three-year sentence for the offense, which he successfully completed. Neither the State nor Hoffman offered any objection to Point at any time during voir dire.

At the hearing on Hoffman's motion for new trial, Point further stated that his burglary conviction occurred in Champaign, Illinois in 1965 and that he had never been pardoned for the offense. He did repeat, however, that he had successfully completed his probation.

The State in its brief argued that Point could sit on a jury in Texas because, under Illinois law, a felon's loss of his ability to sit on a jury upon conviction is returned to him if he successfully completes the terms of his probated sentence. See ILL. CONST. art. III, § 2; ILL. CONST. art. XIII, § 1; ILL.REV.STAT. ch. 730, p 5/5-5-5 (West 1992).

The first issue to be addressed is whether the State of Texas under the Full Faith and Credit Clause of the United States Constitution must recognize any restoration of civil rights that may have been afforded Point by the State of Illinois upon the completion of his probation. U.S. CONST. art. IV, § 1.

There is authority that under the Full Faith and Credit Clause one state need not recognize a pardon issued by a sister state for an offense committed in that sister state. The United States Supreme Court in Carlesi v. New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843 (1914), addressed the issue of whether the State of New York was required to recognize a pardon granted by the President of the United States to a person previously convicted of a federal felony. ¹ The Court concluded that the presidential pardon operated only with regard to the sovereign that issued it and, therefore, the pardon had no "extraterritorial effect." The Seventh Circuit later applied the converse of the Court's ruling to conclude that the United States was not required to recognize a pardon granted by the governor of Montana to a person who had previously been convicted of a felony in that state. Thrall v. Wolfe, 503 F.2d 313, 316 (7th Cir.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975). The Thrall holding has been accepted in a number of jurisdictions. See White v. Thomas, 660 F.2d 680, 685 (5th Cir.1981) (Texas sheriff not barred from firing deputy who failed to indicate at the time of hire that he had been convicted of a felony in California even though that conviction was later expunged), cert. denied, 455 U.S. 1027, 102 S.Ct. 1731, 72 L.Ed.2d 148 (1982); Yacovone v. Bolger, 207 U.S.App.D.C. 103, 645 F.2d 1028, 1036 (United States Postal Service in deciding whether to employ someone convicted of shoplifting in Vermont was not required to recognize Vermont's pardon of the offense), cert. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981); Groseclose v. Plummer, 106 F.2d 311, 313-14 (9th Cir.) (California not required to recognize Texas pardon), cert. denied, 308 U.S. 614, 60 S.Ct. 264, 84 L.Ed. 513 (1939); Delehant v. Board on Police Standards and Training, 317 Or. 273, 855 P.2d 1088, 1092 (1993) (Oregon not required to recognize Idaho's expunction of defendant's Idaho conviction); State v. Edmondson, 112 N.M. 654, 818 P.2d 855, 858-59 (N.M.App.), cert. quashed, 112 N.M. 641, 818 P.2d 419 (1991) (New Mexico not required to recognize Texas' expunction of defendant's Texas conviction); In re Jeb F., 316 Md. 234, 558 A.2d 378, 379 (1989) (State of Maryland not required under Full Faith and Credit Clause to admit into its bar a person convicted of armed robbery in New York even though that person had received a certificate of relief in New York absolving him of all disabilities resulting from his conviction); Ballard v. Board of Trustees of Police Pension Fund of City of Evansville, 452 N.E.2d 1023, 1025-26 (Ind.App.1983) (Indiana not required to recognize Arizona's expunction of Arizona conviction in deciding whether to continue policeman's pension); Kentucky Bar Ass'n v. Signer, 533 S.W.2d 534, 536 (Ky.1976) (Kentucky Bar Association not required to disbar an attorney simply because he had been disbarred in Ohio). Integral to many of these courts' reasoning is that one state is not barred from prosecuting a defendant for the same offense which a sister state tried him, assuming both states have jurisdiction over the defendant in the cause, under the dual sovereign doctrine. See Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir.1977), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978). It is thought that if a second state could subsequently try the defendant for the offense notwithstanding the first state's final disposition of the case, then obviously the second state would not be bound by the first state's pardoning of the offense.

Other jurisdictions, including one of the appellate districts in Texas, however, have ruled that the law of comity requires that states recognize the sister state's restoration of the convict's civil rights. See Wickizer v. Williams, 173 S.W. 288, 290-91 (Tex.Civ.App.--Austin 1914) (pardon for felony committed in Mississippi by Mississippi authorities removes disability of person to sit on jury in Texas); United States v. McMurrey, 827 F.Supp. 424, 425-26 (S.D.Tex.1993) (United States required to recognize Governor of Oklahoma's pardon of defendant's prior Oklahoma conviction); People v. Willis, 79 A.D.2d 1036, 435 N.Y.S.2d 38, 39 (1981) (New York would not consider a Texas felony conviction for enhancement purposes where Texas would not use the same conviction for enhancement under Texas law), compare People v. Dippolito, 88 A.D.2d 211, 452 N.Y.S.2d 655, 657-58 (1982) (New York could use a misdemeanor conviction from California for enhancement purposes where New York would punish the same offense as a felony); People v. Terry, 61 Cal.2d 137, 37 Cal.Rptr. 605, 612-13, 390 P.2d 381, 388-89 cert. denied, 379 U.S. 866, 85 S.Ct. 132, 13 L.Ed.2d 68 (1964), compare People v. Dutton, 9 Cal.2d 505, 71 P.2d 218, 219-20 cert. dism'd, 302 U.S. 656, 58 S.Ct. 365, 82 L.Ed. 508 (1937).

In determining whether Texas law or Illinois law should control the decision of whether Point was qualified to sit on Hoffman's jury, the Full Faith and Credit Clause requires a weighing of the conflicting public policies at issue. Hughes v. Fetter, 341 U.S. 609, 611, 71 S.Ct. 980, 982, 95 L.Ed. 1212 (1951); see Sun Oil Co. v. Wortman, 486 U.S. 717, 730-34, 108 S.Ct. 2117, 2126-28, 100 L.Ed.2d 743 (1988). The conflicting policies may be those between the two states involved in the case, or, more simply, a battle between the forum state's desire to continue its own public policy versus the state's obligation to further the principle of comity among the several states. Hughes, 341 U.S. at 611-12, 71 S.Ct. at 982. The forum state need only recognize its sister state's public acts if the balance of the competing public policies so dictates. See id. As the United States Supreme Court wrote, "[F]ull faith and credit does not automatically compel a forum state to subordinate its own statutory policy to a conflicting public act of...