CONTENTS v01. 18, NO. 10 FEATURE ARTICLES - Voice For The ...

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and counsel must becareful in phrasing the volunteeringmisleading inforn1ationaboutquestion. An example of how careful his past. Because thekey notion hereis thatphrasing can prevent the accused's answer of the defendant's waiver by "volunteerfromopening the door to his entire arrest ing" or initiating the subject of his past, itrecord is found in Rodriqrrez v. State, 272 would he logical to conclude that such 1S.W.2d 366,367 (Tex.Cr.App. 1954). The volunteering could occur on cross-exdefendantwas charged with possession of amination too. Andso thecourts haveheid.marijuana, and testifiedondiiect examina- In the punishment phase of the detionthat he had never been convicted of a fendant'srobbery and kidnapping trial, thefelony, norhad heever beenin "any serious defendant was questioned on cross-extrouble."The ma1 court held that this tes- amination as follows:timony opened the door to cross-examina- Q. Now, when you realized that [the victioninto his being jailed for "disturbance" tim] escaped and ran into the conand"vag," and several otherja~lings where venience store[,] you and Bob ran?he wasnot charged andreleased. The Court A. Yes, ma'am.of Criminal Appeals held that the de- Q. If you were so concerned aboutfendant's assertion that he had not been in cooperating with him, why didn't you"serious trouble" did not open the door to wait for law enforcement people to getconvictions for petty offenses and arrests there?on unspecified charges. These were not A. Well, I got scared."serious trouble," and therefore did not Q. Scared of what?contradict the defendant.A.Thatwas thefmt timelhadheenbusted,But, it is a slippery business not to open you know.the door inadvertently when questioning Q. Are you sure that was the fmt time youthe defendant on direct about his past. In have ever been arrested for anything?Burden ,r State, 634S.W,2d349,351 flex. A. Yes, ma'am.App. - Fort Woah 1982), the defendant The coua of appeals in this case, Marwascharged with indecency with a child. tinez v. State, 728 S.W.2d 360Theqnestionputtohimondirectexamina- ('lex.Cr.App. 1987), held the subsequenttion was: "And is [this] the first time you cross-examination, which established thathalve] been accused by anyone of doing the defendant had been arrested previouslyanything of the nature charged here .. .?" for "sexual abuse [of a child?]," to beThe response was affnlative. On cross, proper TheCourtofCriminalAppealsdistheprosecutorwasallowedtoestablishthatagreed, observing that the appeals courtthe defendant previously had been arrested had erroneously concluded that Eater v.for rape in Virginia. The court of appeals State. 645 S.W.2d 812 (Tex.Cr.App.held the cross-examination to have been 1983), permitted the contradiction of aproper, noting that the remoteness of the defendant's false blanket statementsarrest was immaterial. See Ochon v. State, regardless of whether the falseinlpression481 S.W.2d 847 (Tex.Cr.App. 1972). was the result of direct or cross-examina-Clearly, the court of appeals felt that rape tion. The Court of Criminal Appealsis "of the nature" of indecency with a reiterated that the general rule is that theminor, and, thus, rebutted the defendant's false impression must be initiated by the"blanket" claim.defendant on direct examination. HOWever,the Court went on to say that this case0 ening the Door calls for similar treatment, and upheld theon &SS-~xamination cross-examination as proper.The Court stated that the general ruleTherulepermittingthecontradictionof exists to prevent abuses by prosecutorsblanketclain~sofgoodcharacter, asquoted who might try to "set up" thedefendant onat length in the Prescott case, supra, states cross "by clever maneuvering," and thenthat the false impression must be created introduce otherwise inadmissible exbysomething the defendant says on direct traneous offenses under the guise of imemminationbefore contradiction will be peachment. Martinez, 728 S.W.2d at 361.allowed. The rationale for this is that the However, this case was distinguishable.defendant is protected from being qua- Here the defendant had "voluntarily testionedabout extraneous offenses and ar- tified as to his prior criminal historyrests unless he waives that protection by without any prompting or maneuvering by16 VOICE for the Defense I June 1989the prosecutor and in so doing he falselyasserted that he had never been arrestedbefore." The prosecutor's "wholly innocent"question,"Why were youscared?"was not adeliberatesubterfuge toelicit thefalse imprewon and set the defendant upfor contradiction.The general rule, therefore, must be expanded,the defendant may be impeachedwithcollateralextraneous offenses torebuta false impressioncreated by thedefendanton diiect examination, or volunteered byhim on cross-examination. The expandedrule is further demonstrated by Burrow v.State, 668 S.W.2d 441,443 (Tex. App. -El Paso 1984). Burrow was charged withDWI. On cross-examination, he was askedhow many beers he had consumed prior tohis mest. Hemponded that hedidnotliketo drink and did not drink much. In rebuttal,the state's witness testified that thedefendant visited his barthree to fourtimesa week and rarely stopped drinking hardliquor until he was drunk. The court ofappeals approved ofthis tactic, because thedefendant's response on cross was beyondthe scope of the question put to him.Therefore,he opened the door to the rebuttal.Pyles v. State, 755 S.W.2d 98, 112(Tex.Cr.App. 1988), illustrates how adefendant can inadvertantly nudge the"door" ajarondiect, and thenvolunteer ananswer on cross which kicks it open all theway. Pyles shot a deputy sheriff. He adnuttedburglarizing several businesses thatnight and taking a gun he found at onelocation. He claimed to have been scaredwhen confronted by the officer in the darkand shot in self-defense, not knowing thevictim was an officer. On diiect exanunation,the defendant claimed to have stolenthe gun for no palticular reason other thanto sellit, andinsisted that he hadnever useda pistol in his life. The Court characterizedthis testimony as implying that he was nota manof violent intentions. Thenoncross,when the prosecutor suggested that thedefendant disliked the police, he volunteered,"I have actually had personalfriends that were police officers."In rebuttal,the State was allowed to prove thatwhile injail prior to the trial, the defendanthad scrawled on the wall, "Kill all whitepig police" and "Kill, kill, Judge, D.A."The Court of Criminal Appeals held thatthe rebuttal evidence was properly admittedbecause, on direct, the defendantfirst raised the issue of his non-violent
tendencies, and, on cross, he gratuitouslyvolunteered his friendship with officers.Therefore, the State had the right to rebutthe "false insinuations" about his goodrelationships with law enforcement officers.Pyles is a close case. It seems clearthat theprosecutorknewofthe wall writingbefore he began to cross-examine thedefendant. It is also certain that regardlessof what the defendant said on direct, theD.A. was going to ask the defendant abouthis feeling toward police officers, culminatingwith an accusation of hatred ofpolice ;hat was likely to be denied. Thiswas a "set up" on cross. Nevertheless, theCourt was on firmer ground with its alternativeholding. It reasoned that Pyles'shatred of police officers was not collateral,but was relevant to prove his motive inshooting the deputy. Certainly this is correct,hut it directly contradicts the earlierholding, which was that Pyles had openedthe door to inlpeacl~iiterrt on a collateralmatter. 755 S.W.2d at 115.No Constitutional LimitsThe United States Supreme Court hasheld that whenadefendant has gratuitouslymade sweeping claims of righteous livingondirect examination, the prosecutionmayrebut the testimony with evidence that wasseized unconstitutionally. In Walder v.United Smtes, 347 US. 62 (1954). the accusedwas charged with four drug sales. Ondirect, he volunteered that he had neverpossessed, sold, or transferred narcotics.Oncross, hedenied that a capsule of heroinwas seized from his home two years earlier.In rebuttal, the prosecution called witnesseswho testified to the heroin seizure.The earlier drug case was dismissed afterthe heroin was suppressed for having beenillegally seized. The U.S. Supren~e Courtheld that Walder had abused his FourthAmendment protections by trying to usethem as a shield for perjury. See also, Harrisv. New York, 401 U.S.222 (1971)(statementof defendant which was suppressedfor having been taken in violation of Miraitdacould be admitted to impeach hercontrary direct examination testimony);and United Stares v. Havens, 446 US. 620(1980)(cut-up T-shirt illegally seized fromdefendant's luggage held admissible to rebutdefendant's denial on direct and crossthat he bad anything to do with the narcoticsfound sewn into the clothing of acompanion). The lesson of these cases isthat illegally seized evidence and statementsare available to the prosecutor tocorrect a defendant's "mis-painted picture."Requirement of Good FaithBut a prosecutor may not take randompot shotsat an accused who makes sweepingclaims of prior clean living. Questionsabout adefendant's orior"trouble"mustbefounded on a good kth belief in the truthCheck DesiredPurcharePublications For Saleof the facts inquired about. Thus, for example,after a defendant asselts that he hasnever been in trouble before, the prosecutorcannot ask, "I see you grew up inHouston. Do yon want this jury to believethat you were never arrested in all youryears there?" Unless the D.A. has a "rapsheet" listing an arrest in Houston in herpossession, the question alone is highlyimproper. In Garcia v. Stare, 319 S.W.2d727 rex.Cr.App. 1959), the prosecutorcross-examined the defendant concerningan arrest for carrying a pistol. On a hill ofSales PriceCrinlinal Practice Materials (2 vol.)1988-89 Editiona Federal Criminal Practice Manual (3 vol.)1986-1987Editio11a IncompetencyAnsanity Defense Manual (1 vol.) $50.00I986 Editio~ta Capital Murder: Defense Against the Death Penalty Manual $50.001986 Editiona Drug Offenses and the Fourth AmendmentApril 19870 DWI Defense Manual - May 1987 $50.00n TCDLA Homicide Course Book- Septeniber 1987 $75.00a Representing Sex Offenders and the "Chemical Castration $10.00Defense" - Author: Ray TaylorSales Tax is not included. (7 3/4% as of April 1, 1989)..................................................Please check desired purchare(s) and send this order form to theCriminal Defense lawyers Project, 600 West 13th Street, Austin, Texas 78701.CIMBTATYLIPWChWNO0 cash sale check enclosed 0 please bill*All bmks will be nuiled bmk rate (4 weeks delivery) unless athewise specified.June 1989 1 VOICE for the Defense 17
Page 2 and 3: JOURNAL OF THE TEXAS CRIMINALDEFENS
Page 4 and 5: The Voice is privileged to honor on
Page 6 and 7: Star Wars in the Courtroomby Justic
Page 11 and 12: attack to the police and submitted
Page 13 and 14: in which she said that she was afra
Page 15: with later proof. The term "collate
Page 19 and 20: ANNOUNCING THE 1989 EDITIONS OF THE
Page 21 and 22: C. Concern about the crime problems
Page 23 and 24: ISIGNIFICANTDECISIONS .REPORT Edito
Page 25 and 26: ~~ ~ ~-~~~~opportunity to cross exa
Page 27 and 28: court would find Ws testimony true
Page 29 and 30: d,< -tive "issues of ultimate fact"
Page 31 and 32: The Texas Law of Deadly Weaponsby K
Page 33 and 34: Killer Mistakes by the Prosecutor i
Page 35 and 36: Table of ContentsXXIV. Jury Charges
Page 37 and 38: (Tex.App. -Dallas, 1983).-held'~t i
Page 39 and 40: Note: The court noted at 407 thatap
Page 41 and 42: Motion Practice: Motion for Juryat
Page 43 and 44: ot an opportunity to be heard and t
Page 45 and 46: 559. 561 ITex.Civ.Ann. - Fort Worth
Page 47 and 48: or the potential error, and put a c
Page 49 and 50: strangely, theattomey failed to see
Page 51: specific allegation then under cons

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