Daniels, Adam v. The State of Texas--Appeal from 177th District Court of Harris County

Affirmed and Opinion filed October 17, 2002

Affirmed and Opinion filed October 17, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00806-CR

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ADAM DANIELS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 858,478

O P I N I O N

Appellant Adam Daniels entered a plea of not guilty to the offense of burglary of a building with intent to commit theft. The offense was enhanced by two prior felonies. The jury convicted him and assessed punishment at fifteen years confinement. In two points of error, appellant claims (1) the trial court erred in denying his motion for mistrial based upon prejudicial remarks by the prosecutor; and (2) the trial court erred in allowing him to be impeached with prior criminal convictions. We affirm.

I. FACTUAL BACKGROUND

In very early hours of the morning, Charlotte Jane Hutto awoke to discover appellant taking items from her garage and throwing them over a fence into the alley behind her house. She quickly summoned the police. Upon their arrival, Hutto turned on an outside light and clearly saw appellant, who then jumped over the fence and ran from the back yard. The officers chased appellant through the neighborhood. A K-9 officer discovered him hiding behind a truck and ordered appellant to appear before him. Appellant did not respond. The K-9 officer then instructed his dog to pull appellant from his hiding place. Hutto identified appellant as the offender and the officers placed him under arrest.

Appellant contends that the prosecutor=s cross-examination over an alleged injury demanded a mistrial. At trial, appellant testified he was walking to work at that early hour when he caught sight of the police officers. Because he had an outstanding warrant, appellant wanted to avoid an entanglement with law enforcement, so he hid behind the truck to elude them. Appellant testified that he lost his previous job due to a work related injury, and the condition prevented him from running, much less fleeing. Thus, he claims, he could not have run from the police officers, as the injury would not have allowed him to do so.

During the State=s cross-examination of appellant, the prosecutor questioned him about his previous job and the circumstances surrounding his departure. The prosecutor first asked, ANow, do you want to tell this jury why you were fired, or do I need to get her down here and tell this jury?@ The trial court sustained appellant=s objection to this question.. The prosecutor then asked, AIsn=t the truth that the reason you were fired from that company is because they caught you stealing?@ The trial court again sustained appellant=s objection, instructed the jury to disregard the question, and denied appellant=s motion for a mistrial.

Appellant also contends that the trial court erred in allowing him to be impeached with evidence of prior criminal convictions. Prior to trial, appellant filed a motion seeking to prohibit the State from impeaching him with prior criminal convictions. Though his motion was denied by the trial court, appellant chose to take the witness stand in his own defense and testify. Appellant also offered the prior convictions into evidence on direct examination. On cross-examination, the State asked appellant about the convictions and the sentence he received for each conviction.

 

II. DISCUSSION

 A. THE PROSECUTOR=S CROSS-EXAMINATION

In his first issue, appellant contends the trial court erred in denying his motion for mistrial based upon prejudicial remarks by the prosecutor. Although the trial court sustained the objection, we find that the prosecutor was entitled to cross-examine appellant on the true reason for the termination of his employment. Appellant had already testified that he lost his job due to an injury. In fact, appellant pointed to this very injury as evidence that someone else fled from the police on the morning in question. He claims he could not have run from the police because of his injury and thus the fleeing suspect could not have been him.

Though we cannot substitute our judgment for the trial court which sustained appellant=s objection, we find nothing improper in the prosecutor=s cross examination. It is the State=s right, and indeed, its duty, to cross examine a witness for an accurate determination of guilt and to prevent fraud upon the court. Keller v. State, 662 S.W.2d 362, 364 (Tex. Crim. App. 1984). In Texas state courts, the scope and extent of cross examination remains wide open and permits the cross examiner to explore any matter relevant to the issues. See Harrison v. Texas Employers Ins. Ass=n, 747 S.W.2d 494, 498 (Tex. App.CBeaumont 1988, writ denied); Gerald R. Powell et. al., A Practical Guide to Texas Evidence 139 (2d ed 1999); compare Fed. R. Evid. 611(b) (limiting cross-examination to the subject matter of the direct examination, the credibility of the witness, and Aadditional material@ at the discretion of the court). Indeed, the scope of cross examination should extend to all facts and circumstances that, when tested by human experience, tend to show that a witness may shade his testimony for the purpose of helping to establish only one side of the cause. See Carroll v. State, 916 S.W.2d 494, 497B98 (Tex. Crim. App. 1996).

Though appellant contends that the prosecutor strayed into impermissible territory, a properly conducted cross-examination knows only the bounds of relevancy. As the Beaumont Court of Appeals has observed:

The only limitation is one of relevancy and the concepts of relevancy have been extended to permit inquiry into the situation of the witnesses, with respect to the parties, and to the subject matter of the litigation as well as the witness=interest, bias, motives, inclinations and prejudices and his means of obtaining accurate knowledge of the facts to which he testifies and the manner in which he uses these means. Nevertheless, since the chief purpose of cross examination is to test the accuracy and the credibility of the witness, it is obvious that the manner of cross examination and its extent must rest in the sound discretion of the trial judge.

Harrison, 747 S.W.2d at 498.

Here, the prosecutor exercised his right to cross examine appellant on matters reflecting his credibility. See Virts v. State, 739 S.W.2d 25, 28 (Tex. Crim. App. 1987). Appellant testified on direct examination that he was terminated from his job due to an injury. Were that the sum of his testimony on the matter, the analysis might merit a discussion of the collateral matter rule, which prohibits impeachment on matters not admissible for any purpose absent the inconsistency. See Skillern v. State, 890 S.W.2d 849 (Tex. App.CAustin 1994, pet. ref=d) (finding that the State had the right to cross examine witness who Aopens the door@ by raising a collateral matter on direct examination); see also Arechiga v. State, 462 S.W.2d 1, 2 (Tex. Crim. App. 1971) (noting that whether a matter is collateral depends on whether the cross examining party would be entitled to prove it as a part of his case). Here, however, appellant identified the injury as the very reason why he could not have been the perpetrator. We cannot say that the cross-examination was improper or prejudicial so as to demand a mistrial, especially considering that appellant opened the door to his credibility on the issue on his own direct examination.

Because the trial court sustained appellant=s objection, we analyze the issue in the context of the trial court=s decision to deny appellant=s request for a mistrial. Though the trial court saw fit to sustain appellant=s objections to the cross-examination, we do not find that the form or substance of the prosecutor=s questions are so egregious as to merit a mistrial. If an instruction is given and the court denies the defendant=s motion for mistrial, error results only when the argument is extreme, manifestly improper, injected new and harmful facts into the case, or violated a mandatory statutory provision and was thus so inflammatory that its prejudicial effect could not reasonably be removed from the minds of the jurors by the instruction given. Washington v. State, 822 S.W.2d 110, 118 (Tex. App.CWaco 1991), rev=d on other grounds, 856 S.W.2d 184 (Tex. Crim. App. 1993). It is considered a sufficient response to most well-founded objections that the material be withdrawn from jury consideration, if necessary, and that jurors be admonished not to consider it during their deliberations. Barber v. State, 757 S.W.2d 359, 362 (Tex. Crim. App. 1988). The adversarial system rests on a belief that the declaration of a mistrial should be an exceedingly uncommon remedy for any residual prejudice remaining after the objections are sustained and curative instructions delivered. For this reason, our system presumes that judicial admonishments to the jury are efficacious. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988).

Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant may a motion for mistrial be granted. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). Here, the prosecutor=s statement, even if it were not permissible, was not so inflammatory that an instruction to disregard would not have cured any prejudicial effect. Therefore, the trial court did not abuse its discretion in denying the motion for mistrial. Appellant=s first issue is overruled.

B. THE IMPEACHMENT BY PRIOR CONVICTIONS

In his second issue, appellant claims the trial court erred in failing to weigh the remoteness of appellant=s prior convictions or apply the Theus factors in response to appellant=s motion to testify free from impeachment. See Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992). Although styled a Amotion to testify free from impeachment,@ appellant=s motion was, in substance and relief sought, a motion in limine. See Johnson v. State, 981 S.W.2d 759, 760 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d).

A defendant has the right as trial strategy to introduce evidence of prior convictions on direct examination, but the fact that a motion in limine has been overruled does not mean the trial court may not change the ruling during the trial or that the State will actually offer the evidence. Gaffney v. State, 940 S.W.2d 682, 687 (Tex. App.CTexarkana 1996, pet. ref=d). A defendant who preemptively introduces evidence of a prior conviction on direct examination may not claim on appeal that the admission of such evidence was error. Ohler v. United States,529 U.S. 753, 759 (2000). Appellant has waived error with regard to the State=s use of the offenses on cross-examination. Id.

Appellant further claims the trial court erred in allowing the State to inquire into the details of appellant=s prior convictions. Appellant is correct in asserting the State is not permitted to bring before the jury the details of an offense that resulted in a prior conviction, the existence of which is admitted against the accused. Mays v. State, 726 S.W.2d 937, 953 (Tex. Crim. App. 1986). The prosecutor in this case, however, did not inquire into the details of the prior convictions; he merely asked appellant what sentence he had received and when he had been paroled from each offense. The rule prohibiting the State from inquiring into the details of the offense was not intended to prohibit such questions. See Stevens v. State, 671 S.W.2d 517, 522 (Tex. Crim. App. 1984) (Inquiry into offense and length of sentence not considered inquiry into details of the offense). Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Opinion filed October 17, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.3(b).