King v. State
| Decision Date | 21 June 1989 |
| Docket Number | No. 863-85,863-85 |
| Citation | 773 S.W.2d 302 |
| Parties | Avan KING, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
George A. Preston, Denton, for appellant.
Jerry Cobb, Dist. Atty. and Jim E. Crouch and Fred Marsh, Asst. Dist. Attys., Denton, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant pled guilty before a jury and was convicted of delivery of cocaine to an undercover peace officer; the jury assessed his punishment at six years confinement and did not recommend probation.In an unpublished opinion, the Fort Worth Court of Appeals affirmed his conviction.
This is a companion case to Murphy v. State (Tex.Cr.App., No. 102-86) and Drew v. State (Tex.Cr.App., No. 1168-86), both delivered this day.
At the punishment hearing following appellant's plea of guilty, evidence was adduced by the State showing on January 17, 1980, appellant sold just under a gram of cocaine from his residence to a narcotics officer of the Department of Public Safety.The State also tried to demonstrate in its case in chief that six days previously, other drug transactions not directly involving appellant occurred in his residence, and that two days after the sale of cocaine, on January 19, 1980, another sale was consummated between appellant and the same D.P.S. officer, of an undisclosed quantity of methamphetamine.In the face of appellant's objection to these extraneous events, the trial court excluded the State's proffered evidence.The State was allowed to elicit testimony of appellant's bad reputation for being peaceable and lawabiding.
Appellant presented evidence his current employers would keep him on in the event he should be granted probation.Appellant himself then took the stand.On direct examination he testified, not only that he had never been convicted of a felony, in satisfaction of his evidentiary burden to establish eligibility for probation; he added he had never "been convicted ... of any kind of misdemeanor that could send [him] to jail[.]"Appellant then asserted he had looked over terms of probation that might be imposed, that he would continue to work faithfully and support his dependents.In this context the following transpired:
"Q.All right.Another one of the terms would be that you commit no offense against the laws of this state or any other state or the government of the United States; you understand that?
A.Yes sir, I do.
Q.And could you tell us whether or not you would violate the laws of this state or any other state or the United States if you were placed on probation?
A.I would not.
Q.You understand the consequences of a violation?
A.Yes sir, I do.
* * * * * *
Q.All right.And do you have any question in your mind as to whether or not you would commit future violations of the laws of this state?
A.No, I do not."
During appellant's crossexamination, the State requested a bench conference and proposed to question appellant relative to the delivery of methamphetamine on January 19.Appellant objected that evidence of such extraneous offense was irrelevant, so prejudicial as to deny him a fair trial, a denial of due process and violative of statutes relative to punishment.Opining that a person's future conduct is governed to some extent by how he has behaved in the past and that appellant had "opened up such inquiry" by his answers, the trial court permitted the prosecutor to elicit an admission that appellant delivered methamphetamine to the same officer two days after his delivery of cocaine.
In our opinion in Murphy v. State, supra, we have held that evidence of specific conduct is inadmissible at the punishment phase of trial, either to show the "character" or circumstances of the offender in general, * or as relevant to "suitability" of the accused for probation, in the face of a timely objection.We further held, however, that the parties may "open the door" to admission of such evidence.In this cause, as in Drew v. State, supra, our inquiry focuses upon whether that door was opened.The court of appeals agreed with the trial court that it was.Slip opinion at 3 - 7.Under the circumstances here presented, we concur with that conclusion, and affirm.
By objecting to the extraneous delivery when the State first attempted to raise it in its case in chief, appellant indicated an unwillingness to admit evidence of specific conduct to inform jury discretion in deciding what punishment to assess and whether to recommend probation.However, appellant subsequently volunteered he had never suffered a misdemeanor conviction, and assured the jury he would refrain from future violations of the law.In our view these assertions of good conduct, past and future, were sufficient to open the door to the State's evidence of specific misconduct.Appellant will not be heard now to complain.Murphy v. State, supra, slip op. at p. 27.
It is true the specific act of misconduct the State proved here occurred just two days after the offense for which punishment was being assessed, and between the identical parties.Thus, it is not particularly compelling evidence to rebut appellant's assertions he could prospectively abide by the law.Nevertheless, the extraneous offense did show the delivery of cocaine was not a purely isolated event, and that appellant had more than casual access to a variety of contraband.That evidence of past acts may have probative value in gauging probable future conduct is well founded in our capital jurisprudence.E.g., Garcia v. State, 581 S.W.2d 168, 179(Tex.Cr.App.1979).Analogously, past conduct may have probative value to show that an accused's prediction as to future compliance with the law is unduly optimistic.We cannot say the tendency of the extraneous delivery evidence to rebut appellant's assertions here was so minimal that the trial court abused its discretion in admitting it, once the door was opened.
Accordingly, the judgment of the court of appeals is affirmed.
MILLER, J., dissents, and would follow the rationale of his opinion on original submission in Murphy v. State, (Tex.Cr.App., No. 102-86, opinion on rehearing delivered this day).
DUNCAN, J., not participating.
Finding that the past history of this case might be of benefit to the reader, its history is set out in footnote one.1
Because I believe this Court makes an unjust decision in holding that appellant"opened the door" to being impeached during cross-examination by the prosecuting attorney, by the use of an extraneous unadjudicated misdemeanor criminal offense of sale of methamphetamine, I am compelled to file this dissenting opinion.
I emphasize that what was decided in Murphy v. State, (Tex.Cr.App., No. 102-86, delivered this date), and Drew v. State (Tex.Cr.App., No. 1168-86, delivered this date), concerning the provisions of Art. 37.07, V.A.C.C.P., as that statute existed when appellant was assessed his punishment in this cause, does not implicate the issue in this cause, which is whether appellant"opened the door" when he testified on direct examination to the prosecuting attorney's cross-examination about the unadjudicated misdemeanor criminal offense.Therefore, anything stated in Murphy and Drew, that might implicate the issue that is before this Court to resolve in this cause, is pure dicta.
The record before us reflects that appellant pled guilty to a jury of Denton County to committing the felony offense of delivery of cocaine to a State undercover narcotics agent.The jury rejected his application for probation and assessed his punishment at six years' confinement in the Department of Corrections.
Judge Clinton, in writing for the majority of this Court, notwithstanding the fact that the provisions of Art. 37.07, V.A.C.C.P., as literally read when the trial of appellant occurred, did not allow the prosecution to elicit evidence or testimony about any prior unadjudicated criminal offenses, either directly or indirectly unless the defendant"opened the door", concludes that appellant"opened the door" to such cross-examination, by the unobjected to questions and answers that his trial attorney asked and that he gave, and he"will not be heard now to complain" about the State obtaining, during cross-examination, testimony "that appellant delivered methamphetamine to the same officer two days after his delivery of cocaine [for which he was tried and convicted]."(Page 303 of opinion.)
The record is clear, however, see "Appendix A" which is attached hereto, that the prosecuting attorney did not object to appellant's trial counsel asking appellant about whether he would in the future violate any laws of this or any other State, or of the United States, nor did the prosecuting attorney object to appellant's answers that he would not, in the future, violate any such laws.Because the prosecuting attorney failed to object to the above questions and answers, the State should have been estopped in the trial court from asserting that these questions and answers "opened the door" to cross-examining appellant about the misdemeanor criminal offense of selling methamphetamine that he had previously committed but had not been convicted of.Furthermore, the record makes it perfectly clear to me, if no one else, that at no time did appellant"open the door" to being impeached during cross-examination about any past unadjudicated criminal offenses because of the questions asked by his trial attorney and the answers that he gave to those questions.The sole basis for the trial judge permitting the prosecuting attorney to ask appellant on cross-examination about the commission of the past unadjudicated misdemeanor criminal offense of selling methamphetamine was because he concluded that when appellant's trial counsel asked appe...
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