Stephens v. State
| Decision Date | 24 May 1967 |
| Docket Number | No. 40380,40380 |
| Parties | Clifford Elmo STEPHENS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Reynold M. Gardner, Amarillo, for appellant.
Naomi Harney, County Atty., Bill R. Sherbert, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State's Atty., Austin, for the State.
This is an appeal from a conviction for Receiving and Concealing Stolen Property under the value of $50.00 and over the value of $5.00. Without objection, the case was tried under the alternate procedure provided by Article 37.07, Section 2, Vernon's Ann.C.C.P. After a finding of guilty by a jury, the punishment was assessed by the Court at confinement in jail for five (5) days and a $500.00 fine.
Trial commenced on November 30, 1966.
A recitation of the facts is deemed unnecessary for the proper disposition of the case.
One of the grounds of error urged by appellant is that the trial court erred in permitting the introduction of appellant's application for probation at the hearing on guilt or innocence.
Testifying at the hearing on the issue of guilt or innocence, appellant was asked on cross-examination if he had ever been convicted of any offense. Upon objection to the question, the jury was removed. It was the State's contention that in view of appellant's testimony on direct examination that he had never been called upon to testify as a defendant in any case, and because on cross-examination he denied having ever been a defendant, or having been charged with anything he was subject to impeachment regardless of the nature of the conviction, and that the question was proper. In absence of the jury, it was established that appellant had previously been convicted of driving while intoxicated a number of years before without the aid of counsel when he pled guilty without going to court. At such time, the court announced it would permit impeachment of the appellant on his sworn application for misdemeanor probation filed pursuant to Article 42.13, V.A.C.C.P. Thereupon, the appellant pointed out to the trial court that he was withdrawing his probation application, that he had not offered any proof as to such application, and that it was not the proper time for him to do so.
Nevertheless, in the presence of the jury, the State was permitted to introduce into evidence the application for probation and to elicit from appellant that in 1951, some fifteen years prior to the instant trial, that appellant had been convicted of driving while intoxicated and driving while license suspended. Such action was over the continued objections of the appellant that the convictions involved were not for felonies or misdemeanors involving moral turpitude, were too remote to be used for impeachment, and permitted impeachment upon matters not before the jury at the time. Subsequently, the court instructed the jury to disregard for all purposes the testimony as to the conviction for driving while license suspended.
Following appellant's motion for mistrial, which was denied, the court stated to the jury:
Under the provisions of Article 38.29, V.A.C.C.P., the fact that a witness has been charged with an offense is inadmissible for the purpose of impeaching him unless the charge has resulted in a final conviction. Hunter v. State, 168 Tex.Cr.R. 160, 324...
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Alexander v. State
...in a final conviction for a felony or an offense involving moral turpitude, and even then it must not be too remote. Stephens v. State, 417 S.W.2d 286 (Tex.Cr.App.1967); Garcia v. State, 454 S.W.2d 400 (Tex.Cr.App.1970); Taylor v. State, 612 S.W.2d 566 (Tex.Cr.App.1981). Where the prior con......
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...proof in connection with a motion for probation is not to be presented until the penalty stage of the proceedings, Stephens v. State, Tex.Cr.App., 417 S.W.2d 286, 288 (1967); Smith v. State, Tex.Cr.App., 414 S.W.2d 659, the belated motion in the instant case deprived the State of the opport......
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...this concurrence. DOUGLAS, J., not participating. 1 See, however, Stratman v. State, Tex.Cr.App., 436 S.W.2d 144.2 In Stephens v. State, Tex.Cr.App., 417 S.W.2d 286, 287, this Court said:'Under the provisions of Article 38.29, V.A.C.C.P., the fact that a witness has been charged with an off......
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Bustillos v. State
...as a witness.' The construction earlier placed upon former Article 732a was also placed upon the new Article 38.29. Stephens v. State, Tex.Cr.App., 417 S.W.2d 286; Hall v. State, Tex.Cr.App., 402 S.W.2d The rule in this state for impeaching by use of a prior conviction a defendant or other ......
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Civil Litigation
...v. State , 385 S.W.2d 258 (Tex. Crim. App. 1964). 28. Shipman v. State , 604 S.W.2d 182 (Tex. Crim. App. 1980). 29. Stephens v. State , 417 S.W.2d 286 (Tex. Crim. App. 1967). 30. Hardeman v. State , 868 S.W.2d 404 (Tex. App.—Austin 1993, pet. granted ). 31. Robertson v. State , 685 S.W.2d 4......