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
CLINTON, Judge,
dissenting.
Yesterday it was Bell v. State, 620 S.W.2d 116 (Tex.Cr.App., Opinion on Rehearing, delivered July 22, 1981). Today it is the case at bar. Together they toll the knell of exercise of significant portions of constitutional right afforded the criminally accused. The citizen who invokes “the right of being heard” 1 in the sense of testifying in his own defense places himself in harm’s way by bringing up the subject of his past misconduct, for every word used by his trial attorney in framing a question and every word uttered by him in response will be translated into nuances of “impression” and “tenor” the prosecution claims its cross examination was designed to correct. Thus in jeopardy is the quite legitimate defensive effort to soften the effect of a prior criminal record by exposing it first.
Therefore, I would be content to join the Dissenting Opinion, as I do, without comment, but for the tortuous undertaking by the Concurring Opinion to import the rationale of United States v. Havens, 446 U.S. 620 , 100 S.Ct. 1912 , 64 L.Ed.2d 559 (1980) into the impeachment jurisprudence of this State. What the five Justices in the majority were about may be gleaned from the statement of the question 2 and the discussion immediately preceding the holding excerpted by the Concurring Opinion in the following sentences:
“We also think that the policies of the exclusionary rule no more bar impeachment here than they did in Walder [v. U.S., 347 U.S. 62 , 74 S.Ct. 354 , 98 L.Ed. 503 ], Harris [v. N.Y., 401 U.S. 222 , 91 S.Ct. 643 , 28 L.Ed.2d 1 ], and [Oregon v.] Hass [ 420 U.S. 714 , 95 S.Ct. 1215 , 43 L.Ed.2d 570 ]. In those cases the ends of the exclusionary rule were thought adequately implemented by denying the government the use of the challenged evidence to make out its case in chief. The incremental furthering of those ends by forbidding impeachment of the defendant who testifies was deemed insufficient to permit or require that false testimony go unchallenged, with the resulting impairment of the integrity of the fact finding goals of the criminal trial. We reaffirm this assessment of competing interests and hold ...”
Havens, supra, at 627 , 100 S.Ct. at 1917 .
Suffice to say that we are not here concerned with the constitutional exclusionary rule pertaining to suppressed evidence, and what the majority was explaining in the paragraph from which the second quotation *796 in the Concurring Opinion was taken is that the reasoning of Harris and Hass — both involving impeachment of assertedly false testimony first given on cross examination —“controls this one,” that is, Havens . Thus, the majority saw “no difference of constitutional magnitude” in the otherwise different situations. No doubt this Court will assay the Havens answer to the question it poses when properly presented, but today we have not done so.
. Article I, § 10, Bill of Rights, Constitution of the State of Texas.
. “[W]hether evidence suppressed as the fruit of an unlawful search and seizure may nevertheless be used to impeach a defendant’s false trial testimony given in response to proper cross-examination, where the evidence does not squarely contradict the defendant’s testimony on direct examination.” Havens, 446 U.S. at 621 , 100 S.Ct. at 1913-1914 . (All emphasis is mine unless otherwise indicated.)