# Clements v. State > Court of Criminal Appeals of Texas · March 3, 1943 · 145 Tex. Crim. 428 URL: https://www.frixlaw.com/law-library/cases/4900777 ## Case - **Full name:** John Clements v. State - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 3, 1943 - **Citations:** 145 Tex. Crim. 428; 169 S.W.2d 190; 1943 Tex. Crim. App. LEXIS 772 - **Precedential status:** Published - **Opinion:** Dissent by Graves - **Judges:** Graves, Hawkins - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4900777 ## Opinion text GRAVES, Judge (Dissenting). My Brethren have agreed to a reversal of this case upon the sole proposition that appellant was caused to testify by the State, as shown in bill of exception No. 6, that he deserted from the U. S. Army in 1934; that he was absent without leave after serving in the army about three months; that he then was gone for about seven years; that he returned to the army and was confined at Ellington Field for about three or four weeks. - The appellant had filed an application for a suspended sentence, and he testified on his direct examination relative to his suspended sentence application as follows: “I have been arrested one time before this. That was in Houston. They arrested me for getting drunk one time. They put me in jail; I was in jail I believe about six or seven hours. I paid a fine of three dollars. I have never been arrested any other time; I have never been in any other trouble. I have never been in jail except on that occasion; that’s the only time.” Evidently this testimony was offered for the purpose of supporting his plea for a suspended sentence, and upon it, I think, the jury could have based a verdict suspending his sentence had they seen fit to do so. I think the State had the right to cross-examine appellant on this matter. This testimony was offered for but one purpose, so it seems to me, and that was in support of appellant’s plea for a suspended sentence, and, if believed, it would show that appellant had not been convicted of a felony in this State or in any other state. Surely it was the testimony, there being no other found in the record of like import, upon which the trial court acted when he submitted to the jury appellant’s plea for a suspended sentence in the event of a conviction, and accordingly it is noted that the trial court submitted to the *436 jury appellant’s application for a suspended sentence in a proper charge herein. I think it was permissible for the State to cross-examine appellant upon the statement made by him, and evidently relied upon by him as establishing the fact that he had never been convicted of a felony. The State might have shown that appellant had been convicted of desertion from the army and given a severe penalty in the Federal prison, which, had it been true, would have rendered nugatory his plea for a suspended sentence. It did show that he enlisted in the army; that he served three months; that he deserted therefrom, was A. W. O. L. for about seven years; that he was confined at Ellington Field upon his return to the army for about three weeks. Desertion from the army is punished as determined by a Court Martial; it could have amounted to a very severe punishment, and if such a felonious one had been shown, the State would have been able to have defeated the submission of his plea for a suspended sentence. The trial court’s ruling on this matter is rather confusing, but it is evident therefrom that same was thought to have some bearing on the plea for a suspended sentence, as well as being limited to the credibility of the witness. I think that had the State been able to show by appellant that he had been convicted of a felony in the Federal courts, then he would not have been eligible to receive a suspended sentence in the State court in this trial. In point by analogy only we find the case of Brown v. State, 105 Tex. Cr. R. 586 , 289 S. W. 682 ; Edwards v. State, 134 Tex. Cr. R. 512 , 116 S. W. (2d) 711 . In the majority opinion herein my Brethren cite the case of Johnson v. State, 91 Tex. Cr. R. 582 , 241 S. W. 484 . In that case our present Presiding Judge was originally of a like opinion to my present one in that the accused testified that “he had never been convicted of a felony in this or any other state, and that he had never been arrested in his life.” The court in its original opinion held that it was not error for the State to show an unprovoked assault with a pistol upon a constable by the accused, evidently upon the theory that the accused ought to have been arrested for such assault, regardless of whether he had been or not. However, on motion for a rehearing the court held the admission of such incident was erroneous, basing the same upon the proposition that such an assault was a specific act of misconduct, and not the proper way to prove reputation for being peaceable and law-abiding. With that holding I have *437 no quarrel. The accused had already testified that he had suffered no previous conviction for a felony, and no attempt was made to show that the assault upon the constable eventuated in a conviction for a felony. Not so in this case. At no time, save by inference, did appellant say he had never been convicted of a felony, but he did say so by inference. He merely said he had never been in trouble, and had never been arrested except for drunkenness. I think the State then had the right to cross examine him on this meager yet sufficient proof to the trial court to establish his legal right to the submission of a suspended sentence plea. I do not think that a discharge from the army, either honorable or dishonorable, would be admissible upon the question of an accused’s reputation. I am in accord with Harris v. State, 99 Tex. Cr. R. 60 , 268 S. W. 160 , as well as Mobley v. State, 89 Tex. Cr. R. 646 , 232 S. W. 531 , wherein it is held that such a discharge is inadmissible to affect general reputation. I also am in accord with the statement in the Mobley case wherein it is said: “An examination of the statutes governing suspended sentences discloses the fact that two issues are mentioned upon which proof may be made by the accused who asked for such suspended sentence, to-wit: general reputation and prior conviction of a felony.” I think the State had the right to try to show that appellant had been previously convicted of a felony, and that such cross-examination was proper upon the doctrine of prior conviction for a felony. Thus believing, I think this cause should be affirmed, not reversed. I therefore respectfully enter my dissent herein to its reversal. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4900777. Public record. Not legal advice.