Simmons v. State, 42716

• Decision Date: 20 May 1970
• Docket Number: No. 42716,42716
• Citation: 456 S.W.2d 66
• Parties: Robert Gene SIMMONS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 66

456 S.W.2d 66

Robert Gene SIMMONS, Appellant, v. The STATE of Texas, Appellee.

No. 42716.

Court of Criminal Appeals of Texas.

May 20, 1970.

Rehearing Denied July 15, 1970.

Victor R. Blaine, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Shelly P. Hancock, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Attorney, Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The offense is rape by force and threats; the punishment, eight years.

Appellant filed motion, at the time of entering his plea of not guilty, requesting that the jury assess the punishment in the event a verdict of guilty was returned. He also filed written motion for probation in which he swore that he had never been convicted of a felony in this state or any other state.

Appellant's brief sets forth two grounds of error. Ground No. 1 is: 'The Court erred in admitting into evidence State's Exhibit No. 3, the same being a record of a conviction for theft in the State of Louisiana over appellant's objection that he was without counsel at the time of such conviction.'

Appellant cites and relies upon Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, which bars the use of a prior conviction obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, to support guilt or enhance punishment for another offense.

The Supreme Court has not passed upon whether the rule applies where the prior conviction is used to impeach the credibility of the defendant as a witness in his own behalf or to impeach his testimony.

We hold that under the facts of this case Burgett v. Texas, supra, does not apply.

After the state had rested its case in chief and before appellant took the stand in his own behalf, appellant, through his counsel, moved the court to instruct counsel for the state not to discuss or allude to an alleged conviction had in the State of Louisiana 'during the year on or about--around the year 1957, for the reason that at such time the defendant was a minor, that the proceedings had against him as a minor in the nature of petition to declare him a juvenile delinquent, that he was declared a juvenile delinquent and committed to a state training school for an indefinite period, that he did serve approximately eight months in state training school in Monroe, Louisiana as a result thereof, the defendant says that such matters are not admissible for any purpose by reason it was a civil proceeding and he was denied his right to counsel at the time and he being an indigent did not waive his right to be represented by counsel.'

The court's ruling was:

'Counsel this is a premature motion at this point. However, I instruct the State's Counsel that they may use only the method of impeaching questions that display and are supported by good faith and the reason for asking such question.'

On cross-examination appellant was asked and answered without objection:

'Q. (By Mr. Hancock) Have you ever been convicted of a misdemeanor involving moral turpitude in this state or any other state in the past ten years? By moral turpitude I mean stealing or perhaps beating your wife?

'A. Yes, sir.

'Q. Which?

'A. I have been convicted of two misdemeanors.

'Q. In fact, you have been convicted of both of those, beating your wife and stealing, haven't you?

'A. Misdemeanor theft. Yes, sir.

'Q. Wasn't that stealing?

'A. Well, you know more about law than I do.

'Q. In fact, the misdemeanor theft conviction was what date, if you know?

'A. I don't recall the exact date.

'Q. Could it have been March 3rd of 1965?

'A. Yes, sir, probably.

'Q. What was your punishment?

'A. Six months.

'Q. In the jail?

'A. Yes, sir.

'Q. And what was the date of your conviction for beating your wife?

'A. I don't recall.

'Q. Could that have been February 3rd, 1964?

'A. Probably.

'Q. What was your punishment for that?

'A. $25 fine.

'Q. Have you ever been convicted in this state or any other state in the past ten years of a felony offense?

'A. No, sir, I haven't.

'Q. Is it a fact that on the 17th day of December, 1957, you were convicted of the offense of felony theft in the State of Louisiana, Parish of St. Charles, and received ten years in the State Penitentiary at hard labor?

'A. No, sir, it's not.

(STATE'S EXHIBIT NO. 3 MARKED FOR IDENTIFICATION PURPOSES.)

'Q. (By Mr. Hancock) I will hand you what's been marked as State's Exhibit No. 3. This is purported to be a certified, exemplified copy of a judgment of conviction and sentence for the offense that I mentioned a moment ago.

'A. Yes, sir.

'Q. There is also a photograph here. Isn't that your picture?

'A. Yes, sir, it looks like it.

'Q. What is the date there that this picture was taken?

'A. It says July 11, 1959.

'Q. This State's Exhibit No. 3 also includes an indictment for that offense, a statement of the case. Now, let's get to the instrument. Would you mind reading this?'

At this point appellant's counsel objected, stating: 'If he wants to offer it in evidence I think we should have an opportunity to look at it.'

Counsel for the state then tendered Exhibit No. 3 to defense counsel and offered it in evidence. In the jury's absence appellant's counsel offered the following objection, which the court overruled:

'Your Honor, the defendant objects to State's Exhibit No. 3 for the reason it purports to be a judgment of conviction for an offense of theft, wherein it is alleged that the defendant received a sentence of ten years. It would show by its exhibit it was prosecuted upon information filed in the District Court of St. Charles Parish in Louisiana and not upon an indictment. I submit that under the law until proven otherwise is assumed to be the same as here in Texas and a person may not be prosecuted for a felony upon an information, for that reason we object to the commission of this in evidence.'

Appellant was then examined By his counsel in the jury's absence and testified:

'Q. Mr. Simmons, are you the person named in these papers?

'A. No, sir.

'Q. Where you ever convicted of a felony in Louisiana?

'A. No, sir.

'Q. Did you ever do any sentence in the penitentiary in Louisiana?

'A. No, sir.

'Q. If you are the person named in these particular papers, were you represented by counsel at the time?

'A. No, sir.

'Q. You waived your right of representation by counsel?

'A. No, sir.'

and the final rulings and objections:

'THE COURT: There will be no more testimony at all--if the exhibit is received, it stands or falls as an impeachment to the witness and not for any facts alleged to be proved.

'MR. BLAINE: We object to the use of it for purpose of impeachment. The testimony before the Court now is that he was not furnished counsel. He didn't waive it. For that reason we object. Whatever action was taken, was taken in violation of his constitutional rights. We object to the use of it in any manner.

'THE COURT: Objection overruled.

'MR. BLAINE: Note my exception.

'THE COURT: Bring the jury in.'

Exhibit No. 3 having been received into evidence, the cross-examination of appellant before the jury proceeds as shown by the following:

'Q. I will ask you to examine State's Exhibit No. 3, please. Would you examine that?

'After you have had the opportunity to examine No. 3, State's Exhibit No. 3, is it still your position that the Robert Simmons mentioned in this judgment of conviction for felony theft is not you?

'A. Yes, sir.

'Q. Even though your picture is in these papers?

'A. Well, I'm not certain that is my picture. I assume it is, but I know that's not me.

'Q. Are you sure of that?

'A. Yes, sir.

'Q. Are you as sure that you are not the man mentioned in these papers as you are sure that that young girl consented to the act of intercourse with you?

'A. She consented. Yes, sir.

'Q. And you are also sure this is not you in these papers?

'A. Yes, sir, I am.

'Q. They fingerprinted you in the State of Louisiana Penitentiary, didn't they?

'A. No, sir.

'Q. Were you fingerprinted in the State of Louisiana?

'A. No, sir.'

The state's next witness was Rex Fullerton, in charge of identification and records division of the Harris County Sheriff's Office for the last nine years of his twenty years service in the fingerprint identification field, who testified that he took appellant's fingerprints during the noon hour. The fingerprint card was identified and introduced in evidence as State's Exhibit No. 4, over objection of appellant's counsel:

'* * * the defendant would object to it, any comparison of State's Exhibit No. 3 that was previously admitted, for the same reasons previously stated.'

Without further objection, the witness whose qualification as an expert was shown, testified that he had examined the fingerprints depicted in State's Exhibit No. 3 with the fingerprints depicted in State's Exhibit No. 4 and in his opinion they were the fingerprints of the same person.

The record reflects clearly that all of the evidence relating to a juvenile proceeding in the State of Louisiana was offered by the defense, not by the state; and that Exhibit No. 3 offered by the state in regard to a felony conviction in the State of Louisiana was offered after appellant had sworn in his application for probation that he had never been convicted of a felony in this state or any other state, and had testified that he had never been convicted in this state or any other state in the past ten years of a felony offense, and that it was not a fact that on the 17th day of December, 1957, he was convicted of the offense of felony theft in the State of Louisiana and had received ten years in the State Penitentiary at hard labor or that he was fingerprinted in the State of Louisiana.

A person who is a witness may be asked, for the purpose of impeachment, if he has not been convicted for a felony or an offense imputing moral turpitude. If he denies it, the state, by proper proof may show the truth of such statement so denied. Wright v. State, 103 Tex.Cr.R. 534, 281 S.W. 864.

When the time...