PATRICK NEAL SPRINGSTON,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-82-01013-CR
PATRICK NEAL SPRINGSTON,FROM A DISTRICT COURT
        APPELLANT,
v.
THE STATE OF TEXAS,
        APPELLEE. OF DALLAS COUNTY, TEXAS
BEFORE JUSTICES ROWE, BAKER, AND WHITTINGTON
OPINION BY JUSTICE WHITTINGTON
JUNE 20, 1989
ON REMAND FROM THE COURT OF CRIMINAL APPEALS
        A jury convicted Patrick Neal Springston of the offense of burglary of a habitation with the commission of a rape. Punishment was assessed at twenty years' imprisonment. In an unpublished opinion this Court reversed appellant's conviction on the grounds that the State's prosecutor erroneously presented final jury argument concerning parole laws. The Court of Criminal Appeals reversed the judgment of this Court and remanded the cause for consideration of the points not addressed in our initial opinion. In five remaining points, Springston asserts that the prosecutor improperly cross-examined a psychiatric witness, and that the court erred in refusing to allow Springston to cross-examine complainant regarding a prior rape and prior consensual sexual experience. We find no merit in Springston's remaining points and affirm the trial court's judgment.
        In points six, seven, and eight, FN:1 appellant asserts the trial court erred in overruling appellant's objections to questions posed by the prosecutor to Dr. Clay Griffith, a psychiatrist defense witness, who had examined appellant on two occasions. The following exchange is reflected in the record, with the point of error assigned by appellant noted in the right column.
 
 
[PROSECUTOR]:
 
            Q        Yes, sir.
 
                    Did he tell you how many times that he had been convicted for sexual perversion-type crimes?
 
            [DEFENSE COUNSEL]: Objection to the question. The question implies the truth of the matter, the prosecuting attorney in my judgment is acting in bad faith, it's not a proper question for this witness. And I will object to it, that it's prejudicial and it's in violation of the proper trial of the criminal actions and the prosecutor is using methods that are prohibited.
 
            THE COURT: Overruled.
 
[WITNESS]:
 
            A        Well, I asked him this question that you're talking about and yes, he gave me an answer.
 
[PROSECUTOR]:
 
            Q        What was his answer?
 
            A        Since -- well, one time.
 
            Q        All right, if it was actually two convictions then he would not have told you the truth?
 
            [DEFENSE COUNSEL]: Objection, Your Honor, to the question, implying that he's been convicted twice for any offense without any proof in the record whatsoever to that effect, I do not think the prosecutor is acting in good faith.
 
            THE COURT: I'm going to sustain your objection to that question.
 
[PROSECUTOR]:
 
            Q        Do you know -- well, which conviction are you are aware of, Dr. Griffith, could you just give me the year of the conviction and perhaps the city, if you know it?
 
            A        Not without my notes.
 
                    (Whereupon, [PROSECUTOR] hands the                 witness his notes.)
 
[WITNESS]:
 
            A        "1976 in my hometown." [PROSECUTOR]:
 
            Q        Okay.
 
            A        You said convicted?
 
            Q        Yes, sir.
 
                    Were you aware of a conviction entered in 1980?
 
            [DEFENSE COUNSEL]: Objection to the question about 1980. Objection to this line of questioning in the grounds that it is improper cross examination of this witness and that it's prejudicial, calls for hearsay testimony among other problems.
 
            THE COURT: Overrule.
 
[PROSECUTOR]:
 
            Q        Were you aware of a conviction on the 11th day of August, 1980, in Summons No. 0953 in the Municipal Court of Gardner, Kansas, where the Defendant and his attorney, Frederick B. Farmer, were present in that city and entered a plea of guilty?
 
            [DEFENSE COUNSEL]: Objection to the question, it implies the truth of the matter and I think that it is not a proper way of proving up convictions in a court of law in Texas under the circumstances of this case, it's very prejudicial and I will object to it.
 
            THE COURT: Overruled.
 
[WITNESS]:
 
            A        I do not have that in my notes, no.
 
[PROSECUTOR]:
 
            Q        You do not?
 
            A        I don't believe I do.
        Springston argues that the prosecutor committed reversible error by asking questions: in bad faith (prosecutorial misconduct); that implied the truth of the matter asserted (improper cross-examination); that called for hearsay responses; and that elicited prejudicial responses. The State counters that no question was asked in bad faith, and that the entire line of questions was proper to test whether the psychiatric prognosis was based on a complete patient history. The State also urges that if error was committed, it was harmless. FN:2
        We first consider Springston's assertion that the question, "Did he tell you how many times that he had been convicted of sexual perversion type crimes?" was asked in bad faith. A prosecutor cannot inquire in good faith about a prior conviction if he knows the conviction is not final. Goad v. State, 464 S.W.2d 129, 133 (Tex. Crim. App. 1971); Cohron v. State, 413 S.W.2d 112, 115 (Tex. Crim. App. 1967).         A hearing was held on the bad faith issue. The prosecuting attorney testified about his knowledge of defendant's prior record of convictions, and the prosecutor's file on the subject was admitted into evidence. The prosecutor had documentation of two arrests. The first arrest was on or about May 3, 1976 in Gardner, Kansas. Springston was charged with lewd and licentious conduct. Springston's bond was ordered forfeited because he failed to appear to answer the charge. Springston argues that a bond forfeiture is not a final conviction. Even assuming that is true, the prosecutor did not specifically ask about the 1976 arrest; he asked about convictions in general. It was the defense witness who mentioned the 1976 arrest and characterized it as a conviction. The prosecutor did not even ask a follow-up question about the 1976 arrest. We reject Springston's contention that the question was asked in bad faith merely because it elicited an undesired response.
        The second arrest was in May 1980 and also in Gardner, Kansas. Appellant pled guilty to a charge of disorderly conduct and paid a $25 fine. Documents in the prosecutor's file indicated that Springston was arrested on two charges in May 1980. The first charge was window peeping under summons number 0952, and the second charge, under summons number 0953, was for disorderly conduct. Summons 0952 was dismissed, and appellant pled guilty to the disorderly conduct only. Thus, the 1980 conviction was for disorderly conduct which is not necessarily a sexual perversion-type crime. The issue is whether the prosecutor knew the disorderly conduct conviction was not for window peeping. FN:3 The prosecutor admitted that he knew summons 0952 was dismissed in a plea bargain arrangement. However, the prosecutor indicated that he believed the disorderly conduct charge was in connection with the window peeping charge:
 
 
            Q         I understand. But the question is whether or not he was convicted for sexually perverted type crimes. And I want you to tell me what you have in your records that indicates that the conviction in this case we're describing, summons number 0953 was a sexually perverted type crime.
 
            A        It involved window peeping.
We find from the prosecutor's testimony that he believed that summons 0953 involved window peeping to be credible because, during the guilt/innocent phase of trial, Springston's wife testified that Springston "was arrested for window peeping at one time, [and] that he paid [a] misdemeanor fine."
        We conclude that the trial court did not abuse its discretion in determining that the question complained of was asked in good faith because there is no evidence that the prosecutor believed anything other than that summons 0953 was a final conviction for a sexual perversion-type crime.
        Springston's other objections during cross-examination of the psychiatrist were those of improper cross-examination, prejudicial effect, and hearsay. The psychiatrist testified that his analysis was based on history that Springston related to him. The psychiatrist acknowledged that a false history would effect his opinion of Springston's prognosis. (Cf. Hurt v. State, 480 S.W.2d 747, 748 (Tex. Crim. App. 1972)). If the questions posed by the prosecutor were relevant to the understanding of the psychiatric prognosis, then the questions were properly allowed, even if one or more of appellant's objections standing alone would be valid. See, e.g., Smith v. State, 740 S.W.2d 503, 513 (Tex. App.--Dallas 1987), vacated on other grounds, 761 S.W.2d 23 (Tex. Crim. App. 1988). In McMinn v. State, 640 S.W.2d 86, 90 (Tex. App.--Fort Worth 1983, pet. ref'd) the court held that questions similar to the ones propounded in the instant case were relevant. The court wrote: "other sexual offenses appellant has disclosed to the doctor had significant probative value in the jury's determination of the appellant's ability to reform and the likelihood of future recidivism." Moreover, we again note that any prejudicial effect arising from questions about Summons 0953 was vitiated by Springston's wife's testimony that he was arrested and paid a fine for window peeping. We hold that the State was entitled to test the veracity of the information provided to the psychiatrist to determine whether or not the psychiatric testimony was valid. The testimony was admissible and points of error six, seven, and eight are overruled.
        In point of error ten, FN:4 Springston argues that the trial court erred by refusing to allow the defense to present testimony at the punishment stage of the trial regarding (1) a prior rape experience suffered by complainant, and (2) prior consensual sexual experiences. Springston, in his brief, argues as follows:
 
 
                If the victim had been an older woman, with greater sexual experience, or a woman regarded as having less fragile sensibilities, such as a common prostitute, the jury might be expected to punish less severely for the defendant's crime. Accordingly, it was germane to their punishment decision that they know the victim of this crime was no stranger to sex. Indeed, she was no stranger to forcible rape, and her testimony in the informal bill of exception indicates that the prior rape experience was a more painful and frightening one than this had been.
The trial court determines whether or not evidence offered to mitigate punishment is relevant. The trial court's determination of relevancy will not be reversed unless a clear abuse of discretion is shown. Williams v. State, 535 S.W.2d 637, 640 (Tex. Crim. App. 1976). In our view, admitting evidence of a prior rape would more likely harm Springston because the jury would feel greater sympathy for the victim. At best, the evidence is neither clearly material nor immaterial. We cannot hold that the court abused its discretion in refusing to admit it.
        Regarding the consensual sexual experiences, we note that the testimony was equivocal about the nature of the experiences. It appears the experience was more in the nature of children experimenting than the type of conduct that may indicate the victim had "less fragile sensibilities." In any event, evidence of prior sexual experience is, absent evidence of consent, inadmissible. TEX. R. CRIM. EVID. 412. Point of error ten is overruled.         We affirm the trial court's judgment.
 
                                                          
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
82-01013.RMF
 
 
FN:1 Springston's original brief contained ten points of error. In our original opinion we dealt with the first five points. This opinion disposes of the remaining points.
FN:2 The State suggests that the Court of Criminal Appeals anticipated its view that it would consider any remaining error harmless by noting in its opinion that Springston, "who had a history of exhibitionism and voyeurism and who was charged with burglarizing a habitation and raping the sixteen year old girl he found inside the house, received only a twenty year sentence . . . ." Slip op. at 10 (emphasis ours).
FN:3 Springston does not argue that window peeping is not a sexual perversion.
FN:4 In his brief, Springston asserts a point of error number nine. At oral argument Springston conceded the point as without merit and, in a post-argument motion, he withdrew the point.
File Date[01-02-89]
File Name[821013RF]