JOHNNY R. PARCHMAN v. THE STATE OF TEXAS--Appeal from 94th District Court of Nueces County

   NUMBER 13-05-013-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

JOHNNY R. PARCHMAN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 94th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo

  Memorandum Opinion by Chief Justice Valdez

Appellant, Johnny R. Parchman, was found guilty of first-degree murder and sentenced to thirty-five years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice, and fined $10,000. On appeal, appellant argues the following: (1) the trial court erred in denying appellant=s motion for mistrial based upon the prosecutor=s prejudicial misconduct, and (2) the trial court abused its discretion in excluding evidence impeaching the State=s chief witness. We affirm.

I. BACKGROUND

On July 3, 1996, the body of David Traeger was found bound and floating face-up in Corpus Christi Bay. Pursuant to an autopsy, the cause of death was determined to be blunt force head trauma. Traeger=s vehicle was identified and stopped on July 4, 1996; the driver, Ralph Muniz, was arrested and the vehicle was impounded as evidence. Fingerprints recovered from the exterior of the truck matched those of appellant and Cecil Wayne Turner. Turner testified that during an argument aboard a boat, appellant struck Traeger on the back of his head with a baseball bat multiple times; subsequently, Turner and appellant weighed Traeger down with over sixty pounds of chains and weights before throwing him overboard. Testimony from two other witnesses corroborated Turner=s testimony.

II. PROSECUTORIAL MISCONDUCT

By his first issue, appellant argues that the trial court erred in denying his motion for mistrial based upon the prosecutor=s prejudicial misconduct. Appellant contends that a prosecution witness, Ralph Muniz, was purposefully called to invoke the Fifth Amendment in the jury=s presence, prejudicially planting in the jury=s mind details of how the State claimed the crime was committed.

We review a trial court's denial of a motion for mistrial for abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is only required if the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999).

In addressing appellant's claim of prosecutorial misconduct, we note that claims of prosecutorial misconduct are determined on a case by case basis. See Stahl v. State, 749 S.W.2d 826, 830 31 (Tex. Crim. App. 1988). Prosecutorial misconduct has been found where the prosecutor's actions deliberately violated an express court order and where the prosecutor's misconduct was so blatant as to border on being contumacious. Stahl, 749 S.W.2d at 831 (citing Landry v. State, 706 S.W.2d 105, 111 (Tex. Crim. App. 1985)). It is error for the State to call a witness to the stand whom it knows will claim a valid Fifth Amendment privilege. See Coffey v. State, 796 S.W.2d 175, 177 n.4 (Tex. Crim. App. 1990); Washburn v. State, 299 S.W.2d 706, 709 (Tex. Crim. App. 1957).

Immediately after being sworn in as a witness, Muniz asked to address the trial court at which time he invoked the Fifth Amendment in front of the jury. The State claims it did not know that Muniz intended to invoke the Fifth Amendment. Outside the presence of the jury, Muniz told the trial court that he had informed law enforcement agents and the district attorney=s office that he could not testify. The prosecutor stated that she had spoken to Muniz the week before and Muniz did tell her he did not want to testify; however, at no time did Muniz say he wanted to invoke his Fifth Amendment right against self-incrimination. The trial court responded that upon hearing a witness say that he did not want to testify, the next logical question is the following: AAre you saying you don=t want to testify? Are you going to assert your Fifth Amendment right not to testify?@ Nevertheless, the trial court ruled that the State did not intentionally call Muniz to the stand knowing he would invoke the Fifth Amendment.

Appellant argues this constitutes reversible error. However, even assuming error on the part of the State, the record does not establish harm. See Tex. R. App. P. 44.2; Tex. R. Evid. 103(d). If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a). Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. Id. 44.2(b).

It is apparent from the record that no harm was committed: (1) Muniz was not asked any fact-laden questions that may have prejudiced appellant or himself, (2) the prosecutor did not comment on Muniz pleading the Fifth, and (3) the testimony Muniz would have offered in regard to the truck he acquired from appellant was offered by appellant later in the proceeding. See Canales v. State, 98 S.W.3d 690, 695 (Tex. Crim. App. 2003); Perez v. State, 41 S.W.3d 712, 719-20 (Tex. App.BCorpus Christi 2001, no pet.). We conclude no harm was committed. See Tex. R. App. P. 44.2. We overrule appellant=s first issue.

III. FALSE IMPRESSION

By his second issue, appellant argues the trial court abused its discretion in excluding evidence impeaching the State=s chief witness. Appellant contends that the trial court excluded impeachment evidence of an uncharged allegation of a sex offense by Cecil Wayne Turner, who left a false impression as to his prior trouble with the police. Furthermore, appellant argues that the error had a substantial and injurious influence on the jury=s verdict.

A trial court has considerable discretion in determining whether to exclude or admit evidence. See Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1991) (en banc). An abuse of discretion is shown only where the trial court's decision was made without reference to any guiding rules or principles or, in other words, if the decision was arbitrary or unreasonable. Id. at 380. Even if this Court would have reached a different result, we will not intervene as long as the trial court's ruling is within the "zone of reasonable disagreement." Id. at 391 (op. on reh'g). Exclusion of evidence does not result in reversible error unless the exclusion affects a substantial right of the accused. See Tex. R. App. P. 44.2(b).

Under Texas Rule of Evidence 609, evidence that a witness has been convicted of a crime shall be admitted for the purpose of attacking the credibility of the witness. See Tex. R. Evid. 609(a). Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness= credibility, other than conviction of crime as provided in rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence. Id. 608(b). An exception to the general rule applies when a witness makes false statements concerning his past conduct that suggest he has never been arrested, charged, or convicted of any offense. Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App. 1993); Lewis v. State, 933 S.W.2d 172, 177 (Tex. App.BCorpus Christi 1996, pet. ref=d). Where the witness creates a false impression of his past conduct, he "opens the door" on his otherwise irrelevant criminal history, and opposing counsel may expose the falsehood. Delk, 855 S.W.2d at 704. Considering the applicability of the false impression exception to the general prohibition against the introduction of extraneous offenses, the Court focuses first on the defendant=s answer in relation to the question asked, and whether or not it is responsive. Id. at 704-05; Lewis, 933 S.W.2d at 178. Second, the Court examines how broadly the question that is asked can be interpreted, focusing on the intonation of the question, and its relation to the major substantive issue in the trial. Delk, 855 S.W.2d at 704-05; Lewis, 933 S.W.2d at 178.

On redirect examination, Turner testified that he Ahad an actual good life going@ before he was apprehended in connection with the crime. On recross-examination, appellant=s counsel addressed Turner=s prior convictions for the unauthorized use of a motor vehicle and drug possession. Turner acknowledged both convictions. Immediately after Turner responded in the affirmative to a question regarding his getting Aprison time for drugs,@counsel then asked Turner if that was his Aidea of getting on with his life?@ Turner testified that he did fall back into drugs, but that he had successfully completed a drug offenders= boot camp and was Aout doing great@ before he was implicated in this case. Appellant argues that Turner=s testimony as to Adoing great@ creates a false impression of his past conduct; therefore, the door is open to address a lewd molestation charge from 2003 that Turner was suspected of committing, but never charged with or convicted of.

The trial court=s decision to exclude evidence pertaining to the offense for which Turner was never charged was well within its discretion. See Montgomery, 810 S.W.2d at 379. Turner did not refute the fact he had been convicted in the past, nor did he suggest he had never been arrested, charged, or convicted of any offense. See Delk, 855 S.W.2d at 704; Lewis, 933 S.W.2d at 177. Furthermore, based on Turner=s response as to Adoing great,@ it is obvious that it related to his successful drug rehabilitation, and nothing further. See Delk, 855 S.W.2d at 704-05; Lewis, 933 S.W.2d at 178. We conclude Turner did not create a false impression of his past conduct; therefore, he did not Aopen the door@ as to his otherwise irrelevant criminal history. See Delk, 855 S.W.2d at 704. We overrule appellant=s second issue.

IV. CONCLUSION

The judgment of the trial court is affirmed.

____________________________

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered

and filed this 20th day of April, 2006.