Brian Franklin v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00726-CR
Brian FRANKLIN,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court of Bexar County, Texas
Trial Court No. 2001-CR-5387
Honorable Juanita Vasquez-Gardner, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: September 3, 2003

REVERSED and REMANDED in part and AFFIRMED in part

Appellant Brian Franklin was indicted for the offense of aggravated sexual assault. Before trial, the State declared its intent to seek repeat offender status due to a prior juvenile adjudication. Franklin pled not guilty and, following a jury trial, was convicted of the lesser included offense of sexual assault. The trial court found the enhancement to be true and sentenced Franklin to life imprisonment. He now appeals his conviction in three issues.

Because the issues in this appeal involve the application of well-settled principles of law, we resolve the issues in this memorandum opinion under Tex. R. App. P. 47.4 for the following reasons:

1. In his first issue, Franklin asserts the trial court erred in assessing his punishment at a life sentence because the sentence was not authorized by law and is therefore void. Texas law permits the use of certain juvenile adjudications for purposes of enhancing adult criminal sentences. Section 51.13 of the Texas Family Code provides:

(d) An adjudication under Section 54.03 that a child engaged in conduct that occurred on or after January 1, 1996, and that constitutes a felony offense resulting in a commitment to the Texas Youth Commission under Section 54.04(d)(2), (d)(3), or (m) or 54.05(f) is a final felony conviction only for the purposes of Sections 12.42(a)-(c) and (e), Penal Code. (Emphasis added).

Franklin was convicted and sentenced to the Texas Youth Commission (TYC) on or about March 9, 1995 for burglary of a habitation, an offense having been committed on or about June 10, 1993. Because the conduct that resulted in Franklin's juvenile conviction occurred before January 1, 1996, his juvenile adjudication may not be used against him for the purpose of enhancement under section 12.42 of the Texas Penal Code and section 51.13 of the Texas Family Code. The State concedes this point. We therefore sustain Franklin's first issue, reversing the judgment of the trial court as to his sentence.

2. In his second issue, Franklin contends the trial court erred in allowing evidence of his TYC parole for the purpose of impeachment. In his third and final issue, Franklin argues the trial court erred by allowing evidence of an extraneous bad act because the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Because these two issues are related, we address them together.

At trial, Franklin testified on his own behalf. At the conclusion of his direct testimony, defense counsel asked if he would like to make a statement. Franklin then testified, ". . . I don't do-walking around raping people or nothing like that, you know. . ." and ". . . I don't be, you know what I'm saying, doing things like that. Like, I was trying to change my life ever since, you know what I'm saying, 2--2000, you know what I'm saying. I ain't no criminal . . .". Following this statement, the State advised the court, at the bench, of its intent to introduce evidence that Franklin was on TYC parole at the time of the instant offense and that he had tried to grab a female student at Churchill High School two weeks prior to the incident. Franklin then objected to the TYC parole evidence under Texas Rule of Evidence 609 and to the extraneous bad act evidence under Texas Rules of Evidence 403 and 404. The State explained that the evidence rebutted the defense's theory that Franklin would never do anything like this. In addition, the State argued it was introducing the attempt to grab the girl to show intent rather than the fact that he may have tried to rape her. After further argument outside the presence of the jury, the court overruled Franklin's objections, and the evidence was presented to the jury.

The admission of evidence is a matter within the discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990); Avila v. State, 18 S.W.3d 736, 739 (Tex. App.--San Antonio 2000, no pet.). As long as the trial court's ruling was within the zone of reasonable disagreement, there is no abuse of discretion and the trial court's ruling will be upheld. Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996); Avila, 18 S.W.3d at 739. Although a witness' credibility may not usually be impeached with prior acts of misconduct, an exception exists when the witness, during direct examination, leaves a false impression as to the extent of his prior conduct which may include arrests, convictions, charges, or general "trouble." Tex. R. Evid. 608(b), 609(a), (d); Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App.1993). Additionally, Rule 403 provides "although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice." Tex. R. Evid. 403. A trial court should consider several factors in determining whether the prejudicial effect of evidence substantially outweighs its probative value, including (1) how probative the evidence is, (2) the potential of the evidence to impress the jury in some irrational but nevertheless indelible way, (3) the time proponent needs to develop the evidence, and (4) the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000).

On direct examination, Franklin testified that he "(wasn't a) criminal" and "(didn't do) things like that," thereby possibly leaving the jury with a false impression that he had not committed any crimes in the past and hadn't ever tried to abduct someone from the street as he had allegedly done to the complainant in the instant case. Under the exception to Rule 609, the State was allowed to introduce evidence to refute this impression. In addition, the probative value of the evidence weighed against its possible prejudicial effect is a matter within the trial court's discretion and, in the instant case, could easily fall within the zone of reasonable disagreement. As such, the trial court did not abuse its discretion in admitting the objected to evidence. Franklin's second and third issues are overruled.

The judgment of the trial court regarding Franklin's sentencing is reversed and the case is remanded for further proceedings in accordance with this opinion. However, we affirm the trial court's judgment regarding Franklin's conviction.

Paul W. Green, Justice

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