allowing impeachment of defendant with entire criminal history of thirteen arrests that had not resulted in convictions after defendant admitted he had previously been in trouble, but, after counsel urged him to “get specific,” defendant admitted only to two prior convictions and two prior extraneous offenses
How later courts described this case
- allowing impeachment of defendant with entire criminal history of thirteen arrests that had not resulted in convictions after defendant admitted he had previously been in trouble, but, after counsel urged him to “get specific,” defendant admitted only to two prior convictions and two prior extraneous offenses
- affirming trial court’s admission of evidence regarding the defendant’s criminal history to rebut implied false impression that, apart from the two prior convictions and two prior arrests mentioned in his testimony, his record was clean
- incomplete listing during direct examination of his prior troubles
- defendant “opened the door” by his testimony
Written by the judges who cited it.
The opinion
McCORMICK, Judge,
concurring.
I join with Judge Tom Davis’ opinion, but feel obligated to add a few observations.
The present situation is also legally and factually distinguishable from Shipman v. State, 604 S.W.2d 182 (Tex.Cr.App.1980). Shipman , overruling the language found in Carter v. State, 550 S.W.2d 282 (Tex.Cr.App.1977), is correct. However, the facts set forth in the Carter opinion are not the only relevant facts.
*789 In Shipman , the defendant did not testify to his prior criminal record. However, by clever maneuvering, the prosecutor procured the defendant’s denial of prior intoxication. Through this “set-up” on a collateral issue, the defendant’s prior D.W.I. conviction was admitted for impeachment.
Unlike Shipman , the petitioner before us was not “set-up” on a collateral issue and then contradicted. Petitioner voluntarily testified to his prior criminal history — an incomplete history. On cross-examination, petitioner stated that his testimony on direct constituted a complete statement of his prior criminal record.
Finally, I find the case at bar analagous to the recent decision of the United States Supreme Court in United States v. Havens, 446 U.S. 620 , 100 S.Ct. 1912 , 64 L.Ed.2d 559 (1980). In Havens , the respondent and another man were searched by customs officers upon their arrival on a flight from Peru. Cocaine was found on McLeroth, who implicated Havens. A warrantless search of respondent Havens’ luggage revealed a T-shirt from which cloth had been cut to make pockets for a T-shirt worn by McLeroth in which the cocaine had been found.
At trial, McLeroth testified that the T-shirt he wore containing cocaine in the makeshift pockets had been supplied to him by the respondent, who had sewed the pockets on the shirt. Respondent, testifying in his own behalf, denied having engaged in any activity with McLeroth. On cross-examination, the prosecution asked Havens whether he had anything to do with sewing the pockets on McLeroth’s shirt. This he denied. The prosecution also asked whether he had a T-shirt with pieces missing in his luggage and whether the seized T-shirt was in his luggage, to which he answered, “Not to my knowledge.”
The seized T-shirt, which had been suppressed prior to trial, was then introduced into evidence over respondent Havens’ objections. Respondent contended that the impeachment (introduction of the illegally seized T-shirt) was improper on the ground that the matter had not been “covered on direct.”
In upholding respondent’s conviction, the Court held:
“. . . that a defendant’s statements made in response to proper cross-examination reasonably suggested by the defendant’s direct examination are subject to otherwise proper impeachment by the government, albeit by evidence that has been illegally obtained that is inadmissible on the government’s direct case, or otherwise, as substantive evidence of guilt.” Havens, supra, at 627-628 , 100 S.Ct. at 1917 .
The Court said:
“. . . In terms of impeaching a defendant’s seemingly false statements with his prior inconsistent utterances or with other reliable evidence available to the government, we see no difference of constitutional magnitude between the defendant’s statements on direct examination and his answers to questions put to him on cross-examination that are plainly within the scope of the defendant’s direct examination. Without this opportunity, the normal function of cross-examination would be severely impeded.” Havens, supra, at 627 , 100 S.Ct. at 1916-1917 .
Although Havens dealt with the use of evidence seized in violation of the Fourth Amendment, the language of the opinion relating to impeachment by use of otherwise inadmissible evidence was not limited.
In the case before us, petitioner, on direct examination, testified to two prior robbery convictions as well as prior arrests for burglary and theft. It cannot be said that the State then “smuggled in” questions concerning petitioner’s other arrests in order to then impeach him. As noted in Havens , if the questions would have been suggested to a reasonably competent cross-examiner by direct testimony, they were not “smuggled in.” See Havens, supra, at 626 , 100 S.Ct. at 1916 .
The cross-examination here grew out of petitioner’s direct testimony concerning his prior criminal history, and the ensuing impeachment was proper for this reason as *790 well as that set forth in Judge Tom Davis’ opinion.