Spriggs v. State

• Decision Date: 13 October 1982
• Docket Number: No. 2-81-221-CR,2-81-221-CR
• Citation: 640 S.W.2d 781
• Parties: David Crockett SPRIGGS, Jr., Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 781

640 S.W.2d 781

David Crockett SPRIGGS, Jr., Appellant, v. The STATE of Texas, State.

No. 2-81-221-CR.

Court of Appeals of Texas,

Fort Worth.

Oct. 13, 1982.

Art Brender, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and James J. Heinemann, Asst. Dist. Atty., Fort Worth, for State.

OPINION

Before HUGHES, SPURLOCK and HOLMAN, JJ.

HOLMAN, Justice.

This appeal is from conviction for aggravated robbery with a deadly weapon. V.T.C.A. Penal Code Sec. 29.03. The jury imposed punishment of forty years imprisonment.

We affirm.

Appellant's grounds of error are that the trial court erred by (1) refusing to allow appellant to cross-examine a State's witness concerning his prior felony conviction for burglary; (2) refusing to allow appellant to cross-examine the State's witness to show possible bias or motive based upon the witness' prior felony conviction; (3) refusing to quash the indictment which shows that it was returned to "Criminal District Court No. 213," although such a court does not exist in Tarrant County; (4) denying appellant's right to confront witnesses and permitting the State to improperly bolster the documentary evidence of appellant's prior conviction; (5) not including in the record the testimony taken in the hearing of a motion for discovery; and (6) not including in the record the description of the appellant given by eye witnesses and contained in the police offense reports.

On February 2, 1980, three men, armed with a pistol and two shotguns, entered the Flanka Club on East Tucker Street in Fort Worth, where a dice game was in progress, although the club was closed for remodeling. At trial, witnesses who had been present during the dice game identified appellant as one of the armed men.

One of the State's witnesses, William Powell, had entered the building about 10:00 p.m. and observed that the back door was open. As he started to leave, two men carrying shotguns entered through the back door and said, "Everybody hands up and get against the wall." The bandits began shooting seconds after entering the club room. One man was killed by a shotgun blast, another was shot by the man armed with the pistol.

In grounds of error one and two, appellant complains that the trial court denied him the right to cross-examine Mr. Powell about a past conviction for burglary. Appellant contends that conviction might create bias in Mr. Powell's testimony because of the fact that Mr. Powell was also under indictment on more recent charges at the time he testified in this case.

The State's motion in limine was granted, ordering appellant not to refer to the fact that Mr. Powell had been convicted of burglary more than ten years earlier, due to the remoteness of the prior conviction.

The question of remoteness of prior convictions is addressed largely to the discretion of the trial judge. Davis v. State, 545 S.W.2d 147 (Tex.Cr.App.1976); Bustillos v. State, 464 S.W.2d 118 (Tex.Cr.App.1971). The critical period, with regard to remoteness, is the time between the date the witness is released from confinement and the date of his subsequent trial testimony. Taylor v. State, 612 S.W.2d 566 (Tex.Cr.App.1981).

Mr. Powell was convicted in 1964, for burglary and received a two year sentence. In October, 1965 he was paroled and released from prison. Thus more than fifteen years had elapsed from the date of his release to the date of his testimony in the instant case.

Appellant correctly argues that the time lapse is not controlling in itself, but is merely one factor to be considered in determining remoteness. Davis, supra; Dillard v. State, 153 Tex.Cr.R. 134, 218 S.W.2d 476 (Tex.Cr.App.1949).

Although more than ten years has elapsed, a prior conviction will not be held remote if the witness' lack of reformation is shown by evidence of an intervening conviction for a felony or a misdemeanor involving moral turpitude. Crisp v. State, 470 S.W.2d 58 (Tex.Cr.App.1971); King v. State, 425 S.W.2d 356 (Tex.Cr.App.1968); Courtney v. State, 424 S.W.2d 440 (Tex.Cr.App.1968).

In the case at bar there is no showing of an intervening conviction. The trial court heard the testimony offered and considered Mr. Powell's youth at the time of his prior conviction, and the remoteness of the offense, and concluded that his subsequent rehabilitation had not been shown lacking.

Appellant also complains that he was not allowed to cross-examine Mr. Powell as to his possible bias in favor of the State as a means of gaining more favorable disposition of the charges pending against him.

Appellant was permitted to cross-examine Mr. Powell at length. However, he was not permitted to attempt to use the pending indictment of Mr. Powell as a basis for impeachment. The Powell indictment was returned by the Grand Jury after appellant was charged in the instant case. The trial court ruled correctly in prohibiting the introduction of a pending indictment for impeachment purposes. V.A.C.C.P. art. 38.29.

Absent a showing that Mr. Powell and the appellant had any contact either prior or subsequent to the robbery for which appellant was on trial, there was no basis on which to permit the introduction of the subsequent charge against Mr. Powell in an attempt to impeach his testimony as biased or prejudiced. Evans v. State, 519 S.W.2d 868 (Tex.Cr.App.1975).

Appellant's first and second grounds of error are overruled.

The third ground of error contends that the indictment is fundamentally defective because it shows that it was returned to Criminal District Court No. 213. No such court exists in Tarrant County.

Appellant argues that the Tex.Rev.Civ.Stat.Ann. art. 199a, Sec. 3.041, creates the 213th Judicial District of Tarrant County. No "Criminal District Court" was established by that statute. Appellant argues that, as a consequence, the indictment is fundamentally void, and the trial court lacked jurisdiction to act on it.

Appellant was indicted and convicted of a...