Lopez v. State

• Decision Date: 08 May 1996
• Docket Number: No. 1151-94,1151-94
• Parties: David LOPEZ, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 528

928 S.W.2d 528

David LOPEZ, Appellant, v. The STATE of Texas.

No. 1151-94.

Court of Criminal Appeals of Texas En Banc.

May 8, 1996.

Terrence W. Kirk, Austin, for appellant.

Robert Smith, Asst. Dist. Atty., Lisa D. Stewart, Asst. Dist. Atty., Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant was indicted on February 4, 1988 for the offense of murder pursuant to V.T.C.A. Penal Code, § 19.02(a)(1), alleged to have been committed on June 25, 1979 in Travis County. In a trial by jury, appellant was convicted in the 147th District Court of Travis County, and was sentenced to life imprisonment in the Texas Department of Criminal Justice, Institutional Division. On appeal, the Court of Appeals for the Third District reversed appellant's conviction. Lopez v. State, 793 S.W.2d 738 (Tex.App.-Austin 1990), pet. dism'd, improvidently granted, 810 S.W.2d 401 (Tex.Cr.App.1991).

On remand, a jury again found appellant guilty of murder, and sentenced him to life imprisonment. The jury also made an affirmative finding that appellant had used a deadly weapon. The court of appeals affirmed appellant's conviction on August 31, 1994 in an unpublished opinion. Lopez v. State, No. 03-92-304-CR (Tex.App.--Austin, delivered August 31, 1994). We granted appellant's petition for discretionary review and the State's cross-petition on January 25, 1995, in order to address four issues. ¹ Since appellant does not challenge the sufficiency of the evidence, no recitation of the facts is necessary.

I. COURT OF APPEALS' DECISION

On appeal, the court of appeals analyzed appellant's three points of error. Appellant first claimed that by permitting a deadly weapon finding in the second trial, he was potentially subjected to a longer period of incarceration since he would not be eligible for parole until he had served fifteen years of his sentence. The court of appeals found that the trial court did not err by allowing the State to seek an affirmative finding of the use of a deadly weapon because the charge and punishment in the second trial were no more severe than those in the first trial, the insertion of the affirmative finding of the deadly weapon did not result in a more severe sentence, and that the punishment sought and assessed in both trials was available whether or not appellant used a deadly weapon.

In appellant's second point of error, appellant claimed that the trial court erred in admitting evidence that appellant had previously used LSD, speed, and hallucinogenic mushrooms. The court of appeals found that the trial court did not err in admitting evidence of appellant's previous use of drugs by permitting the State to cross examine appellant regarding his drug use because the evidence had already been injected into the trial with no objection by appellant.

In appellant's third point of error, appellant claimed that the trial court erred in admitting evidence that appellant had at one time engaged in strange behavior with a former girlfriend while under the influence of hallucinogenic mushrooms. The court of appeals held that the trial court did not err in admitting this evidence. The court of appeals found that this testimony was properly admitted since specific instances of prior bad acts are admissible to correct false impressions made by a witness.

II. ANALYSIS OF APPELLANT'S GROUND FOR REVIEW # 1 & STATE'S GROUND FOR REVIEW

Prior to trial, appellant filed a motion in limine on drug use and extraneous acts. During the State's case in chief at guilt/innocence, appellant cross examined State witness Menefee about drug use among a group of friends that included appellant. On redirect, the State asked Menefee about the particular drugs that were taken by the group and if generally, there was a change in anyone once the drugs were taken. He answered in the affirmative. Appellant did not object to these questions regarding drug use.

Appellant took the stand to testify in his own defense. On cross examination, appellant answered the State's questions and admitted using drugs. The State asked appellant if his personality changed while he was under the influence of the mind-altering drugs. Appellant disagreed with the State's statement that he had sharp mood swings. Before the next question could be asked, appellant objected to the State's mentioning of specific acts of misconduct. The court overruled appellant's objection, and the State was permitted to question appellant about an incident where while under the influence of drugs, appellant went over to an ex-girlfriend's house, undressed, and climbed into her bed.

Appellant claims that the court of appeals erred in holding that this act of prior misconduct was admissible to impeach a "false impression" that was elicited from appellant on cross-examination. Appellant contends that the theory of admissibility that the court relied upon was never offered by the State at trial or on appeal. Also, according to appellant, the doctrine of "false impression" does not apply in this case. Appellant concedes that when a defendant "voluntarily" misstates his criminal record on cross-examination without any prompting or maneuvering by the State impeachment is permitted, appellant maintains that such is not the case here since appellant did not volunteer the incident in question.

The State argues that the evidence offered regarding appellant's prior act was not offered solely for the purpose of impeachment. This evidence was also admissible as appellant's motive for committing the murder. The State cites Romero v. State, 800 S.W.2d 539, 543 (Tex.Cr.App.1990) to support the proposition that if evidence is admissible on any grounds, its admission will be upheld by this court. According to the State, it is clear from the record that appellant opened the door to impeachment when the defense attorney questioned Menefee about the drug use among this group (including appellant). The defense also asked questions about changes in behavior among these friends while they were on drugs. Consequently, the State's position is that once appellant took the stand, the State was properly allowed to question him about both his drug use and his behavior while on drugs. The State contends that it was entitled to dispel the false impression left by appellant that he was incapable of committing this crime. In the alternative, the State proposes that this ground for review should be dismissed as improvidently granted.

The record in this case does not support the court of appeals' decision that this incident was admissible for the purpose of correcting a false impression. This court has held that when a defendant suggests on direct examination that he has never been in trouble with the law, the State has the right to disclose this misrepresentation. Hammett v. State, 713 S.W.2d 102 (Tex.Cr.App.1986). In Shipman v. State, 604 S.W.2d 182, 184 (Tex.Cr.App.1980), on cross-examination, the prosecutor asked if the defendant had been intoxicated within the last two or three years. After the defendant responded that "he did not think so", the prosecutor tried to impeach him by showing that he had been convicted for driving a motor vehicle on a public highway while intoxicated within the preceding two years. This court held that it was "error to permit the State to contradict appellant's answer on this collateral matter by showing he had previously been convicted of driving a motor vehicle on a public highway while intoxicated". Id. at 183. Baxter v. State, 645 S.W.2d 812 (Tex.Cr.App.1983) and Martinez v. State, 728 S.W.2d 360 (Tex.Cr.App.1987) further explain when it is appropriate for the State to impeach appellant in order to correct a false impression left by appellant. These two cases make it clear that such questioning by the State can only be done when appellant has voluntarily testified to the collateral matter. In the case at bar, the record clearly shows that appellant in no way volunteered information about his personality while on drugs or the specific episode that occurred with his ex-girlfriend. While it is true that Appellant's counsel did question a witness about the use of drugs among appellant's friends, counsel made no mention of how appellant acted while on drugs. This information was also not volunteered by appellant on direct or on cross-examination. In fact, it was while appellant was being cross-examined by the State that the subject of strange behavior while on drugs was brought up. It was appellant's denial to the State's questions that prompted the State to introduce the incident with his ex-girlfriend. This evidence was not admissible to correct a false impression because under these facts appellant did not create a false impression without "prompting or maneuvering" by the State.

In the State's cross-petition, the State asserts that even if this evidence is inadmissible to correct appellant's false impression, it is admissible to show motive. As the State asserts, we have held that if evidence is admissible for any reason, its admission will not be overturned on appeal. Romero v. State, 800 S.W.2d 539, 543 (Tex.Cr.App.1990). The court of appeals found that the evidence of appellant's behavior while on drugs was irrelevant because there was no evidence that he was under the influence of drugs when the murder occurred. We agree ². The record clearly shows that there was no evidence adduced at trial that demonstrated that appellant was under the influence of drugs at the time appellant committed this murder. We cannot see how jumping into an ex-girlfriend's bed without any clothes on provides a motive for the defendant killing the victim. The victim in this case was not this same ex-girlfriend. Furthermore, the victim was not killed in her bed. We find this evidence was not admissible to impeach a false impression nor was it admissible to show appellant's...