Opinion

Harper v. State

  • 930 S.W.2d 625
  • 1996 Tex. App. LEXIS 2170
  • 1996 WL 288929
Court
Texas Court of Appeals, 1st District (Houston)
Filed
May 30, 1996
Status
Published
Author
Mirabal
On the bench
Hutson-Dunn, Mirabal, Hedges
Cited by
43 cases
Authority
More cited than 7.9%

stating that the federal sentencing guidelines have no application to a state criminal case

How later courts described this case

  • stating that the federal sentencing guidelines have no application to a state criminal case
  • holding that evidence of flight and attempted suicide were properly admitted
  • striking a prospective juror because he wrote his name in the space provided for his spouse is a race-neutral reason
  • declining a request to instruct the jury regarding these guidelines

Written by the judges who cited it.

The opinion

MIRABAL, Justice,

concurring.

In this case, appellant’s prior robbery conviction was alleged in the indictment, and defense counsel had seen the TDC pen packet in the State’s file before trial. The majority holds that, even though appellant and his counsel had full knowledge of the State’s awareness of the conviction, the trial court erred in allowing the State to use the conviction to impeach appellant when he took the stand. I disagree.

In my opinion, the trial court properly overruled appellant’s objection based on Tex. R.CRIm.Evid. 609(f). The purpose of this rule is “to provide the adverse party with a fair opportunity to contest the use of such evidence” of a prior conviction. TexR.Crim. Evid. 609(f). Armed with the knowledge he had about the conviction and the State’s awareness of the conviction, appellant certainly was on notice that, if he took the stand to testify in his own behalf, the State would attempt to impeach him with the conviction. There was no surprise or “lack of a fair opportunity to contest the use of such evidence” in this case. Unlike the majority, I agree with the reasoning of our sister court in Cream v. State, 768 S.W.2d 323, 326 (Tex. App. — Houston [14th Dist.] 1989, no pet.).

I would overrule appellant’s point of error four because the trial court did not err.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.