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.