OCHOA v. STATE

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 45305.

Attorney(S)

Rankin, Kern Martinez by Walter L. Reed, Jr., McAllen, for appellant. Oscar B. McInnis, Dist. Atty., Thomas P. Beery, Asst. Dist. Atty., Edinburg, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

See more information ...

Smart Summary

Factual and Procedural Background

Leobardo Ochoa, the appellant, pled guilty before a jury to the offense of murder under Article 802c of Vernon's Annotated Penal Code. The jury assessed his punishment at five years. The appeal arises from the appellant's contention that the trial court erred in allowing the prosecutor to introduce evidence related to two misdemeanor convictions, which the appellant claimed were constitutionally void, for enhancement and impeachment purposes during sentencing.

Legal Issues Presented

Whether the trial court erred in permitting the prosecutor to present evidence of two misdemeanor convictions, allegedly constitutionally void, for enhancement and impeachment purposes during the punishment phase of a guilty plea to a felony.
Whether the appellant was denied due process by the admission of such evidence.

Arguments of the Parties

Appellant's Arguments

The appellant argued that the misdemeanor convictions used for enhancement and impeachment were constitutionally void under the principles established in Gideon v. Wainwright, Burgett v. Texas, and Loper v. Beto, and thus their use violated due process.

State's Arguments

The opinion does not contain a detailed account of the State's legal arguments beyond the court's analysis.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Darden v. State, 430 S.W.2d 494 (Tex.Cr.App. 1968)	Plea of guilty before a jury admits all facts necessary to establish guilt; testimony during punishment phase assists jury in assessing penalty.	Confirmed that the appellant's plea admitted guilt and testimony was relevant only to punishment.
Basaldua v. State, 482 S.W.2d 851 (Tex.Cr.App. 1972)	Related to the issue of punishment in guilty plea cases.	Supported the court's framing of the error as relating to punishment.
Gideon v. Wainwright, 372 U.S. 335 (1963)	Right to counsel in criminal prosecutions.	The court noted appellant’s reliance but did not decide applicability to misdemeanors here.
Burgett v. Texas, 389 U.S. 109 (1967)	Use of constitutionally void convictions for enhancement or impeachment is precluded.	Appellant cited this to argue the convictions were void; court found reasons why it did not apply here.
Loper v. Beto, 405 U.S. 473 (1972)	Further clarifications on use of prior convictions for enhancement/impeachment.	Appellant cited this but court declined to decide applicability to misdemeanors in this case.
Maldonado v. State, 467 S.W.2d 468 (Tex.Cr.App. 1971)	Failure to object at trial waives error on appeal.	Used to hold that appellant failed to preserve error by not objecting to the prosecutor's questions.
Hathorne v. State, 459 S.W.2d 826 (Tex.Cr.App. 1970)	Applicability of Gideon-Burgett line of cases to misdemeanors.	Supported the conclusion that even if applicable, appellant did not prove deprivation of counsel.
Lopez v. State, 352 S.W.2d 106 (Tex.Cr.App. 1961)	Proof required to use prior convictions for enhancement or impeachment.	Noted that no proof of prior convictions was offered after appellant denied recalling them.
Keel v. State, 434 S.W.2d 687 (Tex.Cr.App. 1968)	Good faith of prosecutor in presenting evidence.	No showing of bad faith by prosecutor, so no error.
Lee v. State, 470 S.W.2d 664 (Tex.Cr.App. 1971)	Good faith inquiry standards.	Reinforced absence of bad faith on part of prosecutor.
Stephens v. State, 417 S.W.2d 286 (Tex.Cr.App. 1967)	Conditions for impeachment by prior convictions: finality, felony or moral turpitude, and remoteness.	Applied to conclude misdemeanor convictions did not involve moral turpitude and thus were not admissible for impeachment.
Gibbs v. State, 385 S.W.2d 258 (Tex.Cr.App. 1965)	Drunkenness convictions do not involve moral turpitude.	Supported the court’s view that the misdemeanor convictions were not impeachable.
Hoover v. State, 449 S.W.2d 60 (Tex.Cr.App. 1970)	Drunkenness convictions and moral turpitude.	Further supported the non-impeachability of such misdemeanors.
Ex parte Chernosky, 217 S.W.2d 673 (Tex.Cr.App. 1949)	Unconstitutionality of reckless driving statute under which prior conviction was obtained.	Referenced to explain that any reckless driving conviction under old statute was void, but not for reasons argued by appellant.
Ex parte De La Pena, 251 S.W.2d 890 (Tex.Cr.App. 1952)	Unconstitutionality of reckless driving statute.	Same as above; court noted the prosecutor’s reference was likely inadvertent and no error shown.
Orozco v. State, 301 S.W.2d 634 (Tex.Cr.App. 1957)	State may refute blanket statements of exemplary conduct by witness.	Applied to note that if a witness claims no prior arrests or convictions, prior convictions may be used to impeach regardless of their nature.
Wingate v. State, 383 S.W.2d 601 (Tex.Cr.App. 1964)	Permissible inquiry into prior convictions when witness opens the door.	Referenced in context of appellant’s direct examination and cross-examination, with no objection or bad faith.
Rodriquez v. State, 272 S.W.2d 366 (Tex.Cr.App. 1954)	Related to scope of cross-examination on prior convictions.	Referenced for comparison but not discussed in detail.

Court's Reasoning and Analysis

The court began by recognizing that a guilty plea before a jury admits all facts necessary for guilt, and testimony presented during sentencing serves to inform the jury's discretion in punishment. The appellant’s claim that the misdemeanor convictions were constitutionally void under the Gideon-Burgett line of cases was not accepted for several reasons:

No objection was made at trial to the prosecutor's line of questioning, thus waiving error on appeal.
The appellant did not prove he was unrepresented by counsel during the prior misdemeanor convictions, nor did he allege indigency or deprivation of counsel, which are prerequisites for applying Gideon-Burgett protections.
After the appellant denied recalling the prior convictions on cross-examination, the State did not introduce proof of those convictions, so they were not actually used for enhancement or impeachment.
There was no evidence that the prosecutor acted in bad faith.

The court further analyzed the legal standards for using prior convictions in enhancement and impeachment. The misdemeanor convictions could not be used for enhancement because the primary offense was a non-capital felony and the misdemeanors were not convictions from a court of record or material to the offense charged. For impeachment, prior convictions must be final, felonies or involve moral turpitude, and not too remote; the misdemeanors here did not meet these criteria. Additionally, the court addressed an inadvertent reference to a prior reckless driving conviction under a statute later held unconstitutional, concluding no error was shown due to lack of objection and bad faith.

The court noted exceptions when a witness makes blanket statements about never having been arrested or convicted, allowing the State to impeach regardless of the nature of the conviction, but found it unnecessary to decide this issue here due to the absence of objection and bad faith.

Holding and Implications

The judgment of the trial court is affirmed.

The court held that the appellant's claim of error regarding the admission of evidence of misdemeanor convictions was without merit. The direct consequence is that the appellant's conviction and sentence stand affirmed. The opinion does not establish new precedent but reinforces existing principles regarding the use of prior convictions in punishment phases and the necessity of preserving error by objection at trial.

Show full summary ...

Leobardo OCHOA, Appellant, v. The STATE of Texas, Appellee.

OPINION

ONION, Presiding Judge.

Appellant pled guilty to the offense of murder under the provisions of Article 802c, Vernon's Ann.P.C. The punishment was assessed by the jury at 5 years.

Appellant's sole ground of error is that the court erred in allowing 'the prosecutor to present to the jury evidence for enhancement and impeachment purposes, prejudicial testimony on two constitutionally void misdemeanor convictions thereby denying appellant due process.' We do not agree.

This was a plea of guilty before a jury to a felony charge and it is well established that such a plea admits the existence of all facts necessary to establish guilt, and in such cases, the introduction of testimony is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed. Darden v. State, 430 S.W.2d 494 (Tex.Cr.App. 1968), and cases there cited. Thus, the claim of error, if any, relates to the issue of punishment. Cf. Basaldua v. State, 482 S.W.2d 851 (Tex.Cr.App. 1972).

Testifying in his own behalf, the appellant admitted, on direct examination, he had been convicted of the misdemeanor offense, driving while intoxicated, in 1961 and had paid a fine for writing a 'hot check' but had never been convicted of a felony.

On cross examination, the following transpired:

Q "[Prosecutor] All right, sir. Now, when Mr. Rankin was talking to you here a few minutes ago, I believe that he asked you if you had ever been arrested and you stated you had been for the drunk driving charge and also for the bad check charge; isn't that right, sir?

A "Yes, sir.

Q "And, do you recall that you were ever arrested on any other occasions other than those two times?

A "No, sir, I don't recall.

Q "Well, sir, do you recall that you were arrested by the Mission Police Department on the 19th day of July, 1963, for reckless driving?

A "I don't recall that.

Q "No license plates and no driver's license and you were fined a Hundred Dollars, and also Twenty-Five Dollars on the other charge in Corporation Court of the City of Mission?

A "I don't recall that, sir.

Q "And, do you recall that you were arrested by the Mission Police Department on the 7th day of June, 1963, for simple drunkness and fined Ten Dollars in Corporation Court?

A "No, sir, I don't recall it.

Q "You don't recall those situations?

A "No, sir.'

It is appellant's contention that the misdemeanor convictions were constitutionally void in light of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 799 (1963) and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), and their use for either enhancement of punishment or impeachment purposes was precluded. See also Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). We need not determine whether these cases are applicable to misdemeanor cases for there are several reasons that appellant's ground of error is without merit.

First, we observe that there was no objection to the line of interrogation now complained of and, thus, the error, if any, is not properly preserved for review. Maldonado v. State, 467 S.W.2d 468 (Tex.Cr.App. 1971). Cf. Blake v. State, 468 S.W.2d 400 (Tex.Cr.App. 1971).

Secondly, there is no proof that the appellant was not, in fact, represented by counsel at the time of the prior convictions. The matter is only asserted in the appellant's brief. The same is true as to any claim that counsel was not waived. Further, there is no allegation or proof as to indigency at the time of the prior convictions, nor any claim that appellant had counsel and was deprived of his services. Even if the Gideon-Burgett line of cases is applicable to misdemeanor cases, as claimed by the appellant, they would not be applicable to the case at bar. Hathorne v. State, 459 S.W.2d 826 (Tex.Cr.App. 1970).

Thirdly, after the appellant testified he could not recall any such convictions, the matter was not further pursued by the State. No proof of the same was offered so that the same could be used for enhancement or impeachment. Cf., e.g., Lopez v. State, 171 Tex.Crim. R., 352 S.W.2d 106, 108 (1961).

And, no claim is advanced and there is no showing that the prosecutor acted in bad faith. Keel v. State, 434 S.W.2d 687 (Tex.Cr.App. 1968); Lee v. State, 470 S.W.2d 664 at 665, f.n. 1 (Tex.Cr.App. 1971).

Since appellant contends that the convictions were used for both enhancement and impeachment, we make the following observations. The misdemeanor convictions inquired about were not and could not have been legally alleged for enhancement of punishment under the provisions of either Article 62 or 63, Vernon's Ann.P.C., since the primary offense alleged was a non-capital felony offense. Further, the convictions could not have been used as a part of the appellant's 'prior criminal record' unless they were convictions obtained in a court of record, or were final convictions material to the offense charged. Article 37.07, subd. 3(a) Vernon's Ann.C.C.P.

If it had been proven, a simple drunk conviction would have been material to the offense charged under art. 802c, supra.

As to impeachment under Article 38.29, Vernon's Ann.C.C.P., it must be remembered that the conviction must be a final one and must be for a felony offense or one involving moral turpitude, and even then it must not be too remote. See Stephens v. State, 417 S.W.2d 286 (Tex.Cr.App. 1967). The misdemeanor convictions here inquired about would not appear to involve moral turpitude. Gibbs v. State, 385 S.W.2d 258 (Tex.Cr.App. 1965) (drunkenness); Hoover v. State, 449 S.W.2d 60 (Tex.Cr.App. 1970) (drunkenness). Cf. Stephens v. State, supra, f.n. 1, (driving while intoxicated and driving while license suspended); 1 Branch's Ann.P.C.2d ed. § 191, p. 211.

One further comment on the prosecutor's inquiry concerning a prior conviction for 'reckless driving.' The reckless driving statute, Acts 1947, 50th Leg., ch. 421, § 51, codified in Article 6701d § 51 Vernon's Ann.Civ.Sta., was held unconstitutional by this court in Ex parte Chernosky, 153 Tex.Crim. R., 217 S.W.2d 673 (1949), and Ex parte De La Pena, 157 Tex.Crim. 560, 251 S.W.2d 890 (1952). This statute was not amended until last year, Acts 1971, 62nd Leg., ch. 83, p. 731, effective August 31, 1971. Thus, any conviction for 'reckless driving' under the old statute would, indeed, be 'void, but not for the reasons urged by appellant. However, as we read the record, the most that is shown is an inadvertent misstatement of the prosecutor as to the nature of the supposed prior conviction. Such inadvertence is understandable in that the term 'reckless driving' is often carelessly and imprecisely used to denote nearly any traffic offense. In light of the highly ambiguous record before us, unclarified by a timely objection at trial, the fact that the issue was not raised on appeal, and no showing of any bad faith on the part of the prosecutor, no error is shown.

An exception to the foregoing prevails, however, where the witness makes blanket statements concerning his exemplary conduct such as having never been arrested, charged or convicted of any offense, or having never been 'in trouble,' or purports to detail his convictions leaving the impression there are no others. Stephens v. State, supra; Orozco v. State, 164 Tex.Crim. 630, 301 S.W.2d 634 (1957) and cases there cited. In such cases, the State may refute such testimony despite the nature of the convition used or its remoteness. Stephens v. State, supra.

In the instant case, we need not determine whether the appellant fully opened the door by his inquiries under direct examination, since earlier noted there was no objection and no showing of bad faith. See Wingate v. State, 383 S.W.2d 601 (Tex.Cr.App. 1964).

Cf. Rodriquez v. State, 160 Tex.Crim. R., 272 S.W.2d 366 (1954).

The judgment is affirmed.