Brown v. State

CLINTON, Judge,

dissenting.

Touching appellant’s first ground for review there seems to be differing interpretations of content of the “exchange” between prosecutor and appellant, excerpted from the record by the majority opinion in this cause. The court of appeals found that “the prosecutor’s question asked only whether appellant’s probation had been revoked, making no reference whatsoever to the specific misconduct or grounds for the revocation.’’ Brown v. State, 667 S.W.2d 630, 633 (Tex.App.—Fort Worth 1984). 1 Yet the majority opinion says:

“Thus, the prosecutor could not properly inquire as to the grounds for the revocation. This, however, is exactly what occurred at the trial below. After the prosecutor questioned appellant about the burglary, she asked if he had had his probation revoked the same day he was convicted. This enabled the jury to conclude that the probation had been revoked for the burglary offense.”

The question posed is:

“Q. Okay. On that day, you also had your probation revoked, is that correct?”

And in context of the preceding jousting over whether appellant had been convicted “on the 20th day of December, 1977 ... in Cause No. 10682 ... of burglary of a motor vehicle, and sentenced to the Texas Department of Corrections,” the question is certainly ambiguous since his probation was not revoked “on that day.” However, if Roliard v. State, 506 S.W.2d 904 (Tex.Cr.App.1974) is still the law — as it appears to be 2 — then for purpose of impeachment under Article 38.29, V.A.C.C.P., the prosecutor was entitled to inquire as to the status of probation, for “it is clear that the prior conviction [for unauthorized use of a motor vehicle] would have been admissible had the defendant’s probation in fact been revoked,” Zillender v. State, supra, note 2, ante; see also Elder v. State, 677 S.W.2d 538 (Tex.Cr.App.1984) (order revoking probation part of “prior criminal record” within meaning of Article 37.07, § 3(a).) That her question may have alluded to an erroneous day did not make the line of inquiry improper; a negative answer would have no doubt alerted her to the error and surely she would not then be precluded from re-framing a question related to the correct day when probation was revoked.

Accordingly, if the majority “fail[s] to see why our decision in Roliard, supra, should render the question asked in the instant case proper,” the majority is myopic. I would sustain the ground for review presented by the State. However, doing that would not finally dispose of this cause for, as I perceive it, appellant also presents error in his third ground for review.

“I don’t want to have to try this case again. It has already cost the state ten thousand dollars.” If that is “injurious and prejudicial matter ... reasonably calculated to prevent a fair trial before an impartial jury” when injected by a prosecutor during his voir dire examination of a jury panel, Pennington v. State, 172 Tex. *504 Cr.R. 40, 353 S.W.2d 451, 452 (1962), so it is when not once but twice injected by a prosecutor in his final argument to a jury, first on guilt or innocence and then on punishment. True it is that in Pennington the trial judge overruled a proper objection, whereas here both times objection was sustained and the jury instructed to disregard. However, an appeal that the jury act expediently, being “contrary to the law and the court’s charge,” is grossly unfair, and the vice here making the argument during punishment “manifestly improper” is in the prosecutor’s repeating the grossly unfair admonishment after having experienced a sustained objection and instruction to disregard the first time. As in Pennington , that was reasonably calculated to prevent a fair trial before an impartial jury.

For the reasons given I respectfully dissent to rulings by which the majority disposes of the grounds for review addressed herein.

. All emphasis throughout is mine unless otherwise indicated.

. See, e.g., Zillender v. State, 557 S.W.2d 515, 519 (Tex.Cr.App.1977); see also Johnigan v. State, 628 S.W.2d 852, 853 (Tex.App.—Fort Worth 1982) PDR ref'd; cf. Hunter v. State, 640 S.W.2d 656 , 659 Tex.App.—El Paso 1982) PDR refd.

From its reading of Cross v. State, 586 S.W.2d 478 (Tex.Cr.App.1979), the court of appeals found "it was error for the prosecutor to have asked appellant whether his probation had been revoked, regardless of the fact that no reference to the grounds of revocation was made,” Brown v. State, supra, at 633. While the court did not mention Roliard and its followings, its reading of Cross is at odds with them. My own understanding is that Cross held "it was error to admit proof of the misconduct for which the appellant’s probation was revoked,” id., at 481 ; that holding may be easily reconciled with Roliard in that proving merely that probation has been revoked does not show the underlying misconduct basing the revocation.