Simmons v. State, 51387

• Decision Date: 26 January 1977
• Docket Number: No. 51387,51387
• Citation: 548 S.W.2d 386
• Parties: Tommy SIMMONS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 386

548 S.W.2d 386

Tommy SIMMONS, Appellant, v. The STATE of Texas, Appellee.

No. 51387.

Court of Criminal Appeals of Texas.

Jan. 26, 1977.

Rehearing Denied Feb. 16, 1977.

Robert H. Spicer, San Antonio, for appellant.

Ted Butler, Dist. Atty., Federico G. Rodriguez, C. Michael Schill and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated robbery, habitual. Trial was before a jury on a plea of not guilty, and the jury found appellant guilty. It also found that he had been twice previously convicted of felonies as charged in the indictment; the court then assessed his punishment at life. The offense occurred on April 30, 1974 and trial commenced on November 13, 1974.

Appellant's counsel timely filed his appellate brief on November 7, 1975. Appellant also filed a pro se brief in the trial court but it was five days late. In view of the relative qualities of the briefs and the possibility that appellant awaited his lawyer's brief before submitting his own, we will consider many of the appellant's grounds of error in the interests of justice. The State's brief was filed in a timely manner.

Briefly stated, the evidence showed that appellant and a companion, posing as police officers looking for stolen merchandise, entered complainant William Cooper's duplex apartment on the night of April 30, 1974. After being frisked for weapons, Cooper was held at gunpoint while appellant removed a stereo, television set, and other items from the apartment. Police were summoned after the robbers left.

Prior to trial, the State filed a motion in limine to prevent the appellant from interrogating State's witness Cooper about any arrests he might have had. During appellant's cross-examination of Cooper, the complaining witness, the following occurred:

"MR. DEWEES (Defense Counsel): May I approach the bench, Your Honor?

"THE COURT: Surely.

(At this time, there was an off-the-record conference at the bench with counsel of both sides present.)

"THE COURT: Will the Jury please step outside.

(The Jury left the courtroom, and the proceedings continued out of the presence of the Jury:)

"THE COURT: What are you planning on doing now?

"MR. DEWEES: For the record, I want to bring out the witness's arrest record and question him about whether or not

"THE COURT: I'll not even permit you to make a bill on that. Let the record so reflect. And you know that that is not a part of the law, Mr. DeWees. You have been practicing for many years. You've been Assistant District Attorney, and you know that the only way you can impeach a witness is by conviction for a felony, or for a misdemeanor involving moral turpitude. Now you can ask him if he has ever been convicted of a felony, and if he has ever been convicted of a misdemeanor involving moral turpitude. Do you want to ask him that, for the record?

"MR. DEWEES: OK, I'll ask him that for the record, sure. I know what the answer is.

"Q Have you ever been convicted of a felony or a misdemeanor involving moral turpitude?

"A No, sir.

"THE COURT: . . . Bring the jury back (to bailiff)."

Appellant assigns as error the court's refusal to permit him to cross-examine the complainant on prior arrests for the purpose of showing bias towards the prosecutor's office on the part of the witness. At a pre-trial hearing, it developed that Cooper had three arrests for possession of marihuana, unlawfully carrying a weapon, and burglary and that charges in all three cases had been dismissed. It also was shown that Cooper went...