Wunneburger v. State

• Decision Date: 16 December 1992
• Docket Number: No. 07-92-0062-CR,07-92-0062-CR
• Citation: 844 S.W.2d 864
• Parties: Ricky WUNNEBURGER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 864

844 S.W.2d 864

Ricky WUNNEBURGER, Appellant, v. The STATE of Texas, Appellee.

No. 07-92-0062-CR.

Court of Appeals of Texas Amarillo.

Dec. 16, 1992.

Rehearing Denied Feb. 5, 1993.

Discretionary Review Refused May 5, 1993.

Kline, Snuggs & Wischkaemper, Philip Wischkaemper, Lubbock, for appellant.

Travis Ware, Dist. Atty., Michael West, Appellate Chief, Lubbock, for appellee.

Before DODSON, BOYD and POFF, JJ.

BOYD, Justice.

In two points of error, appellant Ricky Wunneburger challenges his conviction of aggravated robbery and the jury assessed punishment of ninety-nine years confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant contends the trial court erred in (1) refusing to allow him the opportunity to cross-examine the complaining witness regarding a prior conviction, and (2) refusing to pay for an expert to testify regarding recidivism rates of individuals released from penal institutions. We affirm the judgment of the trial court.

The State's evidence showed that appellant robbed a convenience store clerk in Lubbock on the night of August 5, 1991. While reaching into the cash register and removing the bait money, appellant tripped a hidden camera which photographed him taking the money. The store clerk, Tanya Oldham, testified that she was held at knifepoint by appellant. Since the crime eye photographs did not reveal the use of a knife, the only testimony supporting the aggravating element was that of Oldham.

The record shows that Oldham had been convicted of theft by check in Erath County. Appellant's first point contention is that pursuant to Texas Rule of Criminal Evidence 609(a), he was entitled to use that conviction in his cross-examination of Oldham, and the trial court reversibly erred in refusing to allow him to do so.

Rule 609(a) provides that evidence of a prior criminal conviction shall be admitted for the purpose of attacking the credibility of a witness if the crime was a felony or one involving moral turpitude, regardless of punishment, so long as the court determines the probative value of admitting the evidence outweighs its prejudicial effect.

However, Rule 609(c) limits the admissibility of evidence of a prior conviction if (1) based upon the finding of rehabilitation of the person convicted, the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure, and that person has not been convicted of a subsequent crime which is classified as a felony or involved moral turpitude, regardless of punishment, or (2) probation has been satisfactorily completed and that person has not subsequently been convicted of a felony or crime of moral turpitude, or (3) based on a finding of innocence, the conviction has been the subject of a pardon, annulment, or other equivalent procedure. Tex.R.Crim.Evid. 609(c).

Allowing a defendant to expose a witness' motivation to testify against the defendant is an important and proper function of the constitutionally protected right of cross-examination. Hurd v. State, 725 S.W.2d 249, 252 (Tex.Crim.App.1987), citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). In pursuance of that function, the defendant is given great latitude to show any fact which would tend to establish ill feeling, bias, motive and animus on the part of the witness testifying against him. Hurd v. State, 725 S.W.2d at 252. A witness may be "contradicted, impeached, discredited, attacked, sustained, bolstered, made to give evidence against himself, and cross-examined as to new matter." Cantu v. State, 738 S.W.2d 249, 255 (Tex.Crim.App.1987), cert. denied, 484 U.S. 872, 108 S.Ct. 203, 98 L.Ed.2d 154 (1987).

In support of his position that he was entitled to impeach Oldham, in a hearing before the court, appellant introduced a facsimile copy of Oldham's judgment and sentence, together with a motion to revoke her probation. At the hearing, and under examination by appellant's counsel, Oldham admitted the conviction. She also testified that she successfully served the probation, it was never revoked, and "they gave me all of my papers and said it was over." She also testified she never went "back in front of a judge."

Appellant's first point contention requires us to discuss the burden of proof in determining the propriety of the use of a prior conviction for impeachment purposes. In making that determination, we find Fransaw v. State, 671 S.W.2d 539 (Tex.App.--Houston [14th Dist.] 1983, no pet.) instructive. In that case, the State sought to impeach Fransaw by showing a prior conviction of aggravated robbery. The appellant sought to show that the conviction was not final by testifying that he had sent a notice of appeal to the district clerk within ten days of his sentencing date, and, when he received no response, he filed an application for mandamus in the Court of Criminal Appeals. To support his contention, he introduced two exhibits which purported to be certified mail receipts of his appeal notice.

However, the appellate court observed that the notice of appeal Fransaw allegedly filed was not in the district court's file, and the court's docket did not reflect any such notice. Additionally, the appellate court noted that the copies of the certified mail receipts were in fact a writ of mandamus mailed to the Court of Criminal Appeals and a notice from that Court denying application. Id. at 541. Citing Johnson v. State, 583 S.W.2d 399 (Tex.Crim.App.1979), the Fransaw court held that "appellant failed to meet his burden of proving the conviction was not final," and the trial court correctly admitted the prior conviction for impeachment purposes. Id.

In Johnson, the appellant was convicted of the offense of rape which allegedly occurred on June 21, 1977. In seeking to impeach Johnson, the State had introduced certified copies of a conviction and sentence showing Johnson had been previously convicted of rape on January 16, 1974. Those records did not indicate any notice of appeal given by Johnson. Without the introduction of any evidence, Johnson contended the evidence was insufficient to show the prior conviction became final before the commission of the instant offense. In overruling Johnson's contention, the Court held "[o]nce the State introduces such prima facie evidence of a final conviction [the judgment and sentence], the defense has the burden of proving the conviction was not final." Id. at 403. Thus, it concluded, under the record before it, the proof was adequate to show the prior conviction was final before the commission of the offense for which Johnson was on trial.

Thus, prior to September 1, 1986, the effective date of the Rules of Criminal Evidence, a prima facie case was made that the credibility of a witness might be impeached by the use of a conviction if either the proponent introduced correct copies of a judgment of conviction and sentence for a felony or a crime involving moral turpitude, which is regular and valid on its face, regardless of the punishment; or, if the witness admitted conviction of such an offense. Once that prima facie showing was made, it became the burden of the opponent to establish the inadmissibility of the impeachment evidence. In attempting to do so, the general rule was that the testimony of the interested witness was not sufficient to establish the inadmissibility but rather documentary evidence was required to do so. See Van Sickle v. State, 604 S.W.2d 93, 98 (Tex.Crim.App.1979); Poore v. State, 524 S.W.2d 294, 297 (Tex.Crim.App.1975); Pena v. State, 669 S.W.2d 156, 157 (Tex.App.--Dallas 1984, no pet.).

However, with regard to probated sentences, the rule was that such sentences might be used to impeach a witness only if the probation had not expired at the time of trial. Adams v. State, 685 S.W.2d 661, 669-70 (Tex.Crim.App.1985). If the record showed the probationary period had expired, the conviction was not admissible for impeachment purposes. Mead v. State, 759 S.W.2d 437, 443 (Tex.App.--Fort Worth 1988), rev'd on other grounds, 819 S.W.2d 869 (Tex.Crim.App.1991).

On September 1, 1986, the Rules of Criminal Evidence became effective and Rule 609 now governs the admissibility of prior conviction impeachment evidence. Concerning probated convictions, subsection (c) of the rule provides that such convictions are not admissible if the probation period has been satisfactorily completed, and, in addition, the witness has not subsequently been convicted of a felony or crime involving moral turpitude. See Cunningham v. State, 815 S.W.2d 313, 319 (Tex.App.--Dallas 1991, no pet.). In this case, appellant's evidence itself showed that Oldham's probation period had expired and there was no showing that she had been subsequently convicted of a felony or crime involving moral turpitude. The mere filing of the motion to revoke, without more, was not sufficient to establish that the probation had been revoked prior to its expiration. Thus, by provision of the rule, the conviction was not admissible for impeachment purposes.

In asserting the trial court erred, appellant places considerable reliance upon this court's decision in Aleman v. State, 795 S.W.2d 332 (Tex.App.--Amarillo 1990, no pet.). However, that case is distinguishable. In Aleman, the State admitted that a theft conviction existed against a person with the same name as the witness in question. The question presented to us was whether Aleman was entitled to cross-examine the witness about her asserted lack of recollection whether she had been convicted of the offense. We held that Aleman was entitled to the cross-examination in order that the jury might determine the truth of her testimony and whether she was indeed the one who had been convicted. The question of the application of Rule 609(c) to the admissibility of a probated sentence was not before us.

The Rules of Criminal Evidence give the trial court wide discretion in...