KING v. STATE

CLINTON, Judge.

Appellant pled guilty before a jury and was convicted of delivery of cocaine to an undercover peace officer; the jury assessed his punishment at six years confinement and did not recommend probation. In an unpublished opinion, the Fort Worth Court of Appeals affirmed his conviction.

This is a companion case to Murphy v. State (Tex.Cr.App., No. 102-86) and Drew v. State (Tex.Cr.App., No. 1168-86), both delivered this day.

At the punishment hearing following appellant's plea of guilty, evidence was adduced by the State showing on January 17, 1980, appellant sold just under a gram of cocaine from his residence to a narcotics officer of the Department of Public Safety. The State also tried to demonstrate in its case in chief that six days previously, other drug transactions not directly involving appellant occurred in his residence, and that two days after the sale of cocaine, on January 19, 1980, another sale was consummated between appellant and the same D.P.S. officer, of an undisclosed quantity of methamphetamine. In the face of appellant's objection to these extraneous events, the trial court excluded the State's proffered evidence. The State was allowed to elicit testimony of appellant's bad reputation for being peaceable and lawabiding.

Appellant presented evidence his current employers would keep him on in the event he should be granted probation. Appellant himself then took the stand. On direct examination he testified, not only that he had never been convicted of a felony, in satisfaction of his evidentiary burden to establish eligibility for probation; he added he had never "been convicted . . . of any kind of misdemeanor that could send [him] to jail[.]" Appellant then asserted he had looked over terms of probation that might be imposed, that he would continue to work faithfully and support his dependents. In this context the following transpired:

"Q. All right. Another one of the terms would be that you commit no offense against the laws of this state or any other state or the government of the United States; you understand that?

A. Yes sir, I do.

Q. And could you tell us whether or not you would violate the laws of this state or any other state or the United States if you were placed on probation?

A. I would not.

Q. You understand the consequences of a violation?

A. Yes sir, I do.

Q. All right. And do you have any question in your mind as to whether or not you would commit future violations of the laws of this state?

A. No, I do not."

During appellant's crossexamination, the State requested a bench conference and proposed to question appellant relative to the delivery of methamphetamine on January 19. Appellant objected that evidence of such extraneous offense was irrelevant, so prejudicial as to deny him a fair trial, a denial of due process and violative of statutes relative to punishment. Opining that a person's future conduct is governed to some extent by how he has behaved in the past and that appellant had "opened up such inquiry" by his answers, the trial court permitted the prosecutor to elicit an admission that appellant delivered methamphetamine to the same officer two days after his delivery of cocaine.

In our opinion in Murphy v. State, supra, we have held that evidence of specific conduct is inadmissible at the punishment phase of trial, either to show the "character" or circumstances of the offender in general, or as relevant to "suitability" of the accused for probation, in the face of a timely objection. We further held, however, that the parties may "open the door" to admission of such evidence. In this cause, as in Drew v. State, supra, our inquiry focuses upon whether that door was opened. The court of appeals agreed with the trial court that it was. Slip opinion at 3 — 7. Under the circumstances here presented, we concur with that conclusion, and affirm.

By objecting to the extraneous delivery when the State first attempted to raise it in its case in chief, appellant indicated an unwillingness to admit evidence of specific conduct to inform jury discretion in deciding what punishment to assess and whether to recommend probation. However, appellant subsequently volunteered he had never suffered a misdemeanor conviction, and assured the jury he would refrain from future violations of the law. In our view these assertions of good conduct, past and future, were sufficient to open the door to the State's evidence of specific misconduct. Appellant will not be heard now to complain. Murphy v. State, supra, slip op. at p. 27.

It is true the specific act of misconduct the State proved here occurred just two days after the offense for which punishment was being assessed, and between the identical parties. Thus, it is not particularly compelling evidence to rebut appellant's assertions he could prospectively abide by the law. Nevertheless, the extraneous offense did show the delivery of cocaine was not a purely isolated event, and that appellant had more than casual access to a variety of contraband. That evidence of past acts may have probative value in gauging probable future conduct is well founded in our capital jurisprudence. E.g., Garcia v. State, 581 S.W.2d 168, 179 (Tex.Cr.App. 1979). Analogously, past conduct may have probative value to show that an accused's prediction as to future compliance with the law is unduly optimistic. We cannot say the tendency of the extraneous delivery evidence to rebut appellant's assertions here was so minimal that the trial court abused its discretion in admitting it, once the door was opened.

Accordingly, the judgment of the court of appeals is affirmed.

WHITE and BURCHELMANN, JJ., concur in the result.

MILLER, J., dissents, and would follow the rationale of his opinion on original submission in Murphy v. State, (Tex.Cr.App., No. 102-86, opinion on rehearing delivered this day).

CAMPBELL, J., dissents.

DUNCAN, J., not participating.

TEAGUE, Judge, dissenting.

Finding that the past history of this case might be of benefit to the reader, its history is set out in footnote one.

Because I believe this Court makes an unjust decision in holding that appellant "opened the door" to being impeached during cross-examination by the prosecuting attorney, by the use of an extraneous unadjudicated misdemeanor criminal offense of sale of methamphetamine, I am compelled to file this dissenting opinion.

I emphasize that what was decided in Murphy v. State, (Tex.Cr.App., No. 102-86, delivered this date), and Drew v. State (Tex.Cr.App., No. 1168-86, delivered this date), concerning the provisions of Art. 37.07, V.A.C.C.P., as that statute existed when appellant was assessed his punishment in this cause, does not implicate the issue in this cause, which is whether appellant "opened the door" when he testified on direct examination to the prosecuting attorney's cross-examination about the unadjudicated misdemeanor criminal offense. Therefore, anything stated in Murphy and Drew, that might implicate the issue that is before this Court to resolve in this cause, is pure dicta.

The record before us reflects that appellant pled guilty to a jury of Denton County to committing the felony offense of delivery of cocaine to a State undercover narcotics agent. The jury rejected his application for probation and assessed his punishment at six years' confinement in the Department of Corrections.

Judge Clinton, in writing for the majority of this Court, notwithstanding the fact that the provisions of Art. 37.07, V.A.C.C.P., as literally read when the trial of appellant occurred, did not allow the prosecution to elicit evidence or testimony about any prior unadjudicated criminal offenses, either directly or indirectly unless the defendant "opened the door", concludes that appellant "opened the door" to such cross-examination, by the unobjected to questions and answers that his trial attorney asked and that he gave, and he "will not be heard now to complain" about the State obtaining, during cross-examination, testimony "that appellant delivered methamphetamine to the same officer two days after his delivery of cocaine [for which he was tried and convicted]." (Page 303 of opinion.)

The record is clear, however, see "Appendix A" which is attached hereto, that the prosecuting attorney did not object to appellant's trial counsel asking appellant about whether he would in the future violate any laws of this or any other State, or of the United States, nor did the prosecuting attorney object to appellant's answers that he would not, in the future, violate any such laws. Because the prosecuting attorney failed to object to the above questions and answers, the State should have been estopped in the trial court from asserting that these questions and answers "opened the door" to cross-examining appellant about the misdemeanor criminal offense of selling methamphetamine that he had previously committed but had not been convicted of. Furthermore, the record makes it perfectly clear to me, if no one else, that at no time did appellant "open the door" to being impeached during cross-examination about any past unadjudicated criminal offenses because of the questions asked by his trial attorney and the answers that he gave to those questions. The sole basis for the trial judge permitting the prosecuting attorney to ask appellant on cross-examination about the commission of the past unadjudicated misdemeanor criminal offense of selling methamphetamine was because he concluded that when appellant's trial counsel asked appellant the question, whether he would in the future violate any laws of this State, any other State of the Union, or of the United States, and appellant answered the question in the negative, appellant "opened the door" to being cross-examined about the extraneous unadjudicated criminal offense. (Pages 57-59, Statement of Facts). Of course, if there was any affirmative evidence in the record from appellant, that in the future he would or might violate the laws of this State, other States of the Union, or of the United States, whether this constituted "opening the door" would be another issue to resolve. However, as to future criminal conduct, the record is undisputed that all that appellant did was voice his subjective belief that he would not in the future, "to the best of his ability," commit any criminal wrongs. Where the prosecuting attorney is foolish enough to permit such questions to be asked and answered, why should the State later be permitted to take advantage of these unobjected to questions and answers?

I find that the majority opinion actually amounts to a return to the day when this Court handed down Childs v. State, 491 S.W.2d 907 (Tex.Cr.App. 1973). In all due respect to Hon. Winston Cochran, an assistant district attorney of Harris County, who has stated several times that he believes that the majority opinion of Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr.App. 1987), is "arguably the worst decision this Court has ever issued", see, for example, page 5, State's petition for discretionary view filed in Carvey v. State, Court of Criminal Appeals No. 0900-88, and in all due respect to the individuals who were on this Court at that time, and in all due respect especially to Judge Morrison, the author of Childs, I find that Childs arguably might be the worst decision this Court has ever handed down since it came into existence. It took almost ten years before an enlightened majority of this Court found its way to expressly overrule Childs in Ward v. State, 591 S.W.2d 810 (Tex.Cr.App. 1980). The essential holding of Childs was that if a defendant put on a witness at the punishment stage of a non-capital felony trial, such as his mother, father, grandfather, grandmother, aunt, uncle, brother, sister, wife, child, or just a good friend, and without objection from the prosecuting attorney the witness was asked whether the defendant was "a good old boy" or "a good old girl", if the prosecuting attorney was slick enough he could convert the witness into a reputation witness and could then ask the witness "have you heard" questions concerning the defendant's criminal past, and done so with the approval of this Court. After Childs, defense attorneys became so frightened about the consequences of putting on a witness at the punishment stage of the trial that most of them declined to put on any evidence at the punishment stage of the trial. Even today, in capital murder cases, the effects of Childs are still being felt because, given the provisions of Art. 37.071, V.A.C.C.P., it is the unusual case, for fear that he will "open the door" to "have you heard" questions by the prosecuting attorney, that a defense attorney will offer "mitigating evidence" on behalf of the defendant.

The majority opinion in this cause correctly points out what Judge Woodley recognized over 25 years ago in the opinion that he filed in Rojas v. State, 404 S.W.2d 30, 34 (Tex.Cr.App. 1966), that "evidence of specific [criminal] conduct is inadmissible at the punishment phase of trial, either to show the 'character' or circumstances of the offender in general (asterisk footnote deleted), or as relevant to 'suitability' of the accused for probation, in the face of a timely objection." (Page 303 of opinion.) However, the majority opinion in this cause goes on to hold that in this instance, because appellant "opened the door", the prosecuting attorney was entitled to cross-examine appellant about an unadjudicated extraneous misdemeanor criminal offense.

By the majority opinion, the question that must be answered in this cause is whether appellant "opened the door."

On direct examination, appellant testified, inter alia, that he had never been convicted in this or any other State, or of the United States, of any kind of felony offense, or misdemeanor offense that carried a jail sentence; that he admitted his guilt to the primary offense; that he worked for a certain company and would in the future work faithfully at suitable employment; that he had supported his three year old child, and would do so in the future; that he had gone over the conditions of probation; that he understood the consequences of violating any condition of probation; and that he would not in the future violate any law of Texas, any law of any other State of the Union, or of the United States. Did the latter subjective question and subjective answer that appellant gave "open the door" to permitting the prosecuting attorney to cross-examine appellant about the prior unadjudicated extraneous misdemeanor criminal offense of selling methamphetamine that appellant had committed in the past? Logically I don't see how. Perhaps, however, the quicksand foundation on which the majority opinion rests lies in the fact that it cites as authority for its holding this Court's decision of Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App. 1979), a death penalty case which I appealed when I was in private practice. Appellant's case, however, is not a death penalty case. Furthermore, it is now elementary that the provisions of Art. 37.071, V.A.C.C.P., govern the admissibility of evidence at the punishment stage of a capital murder case, and under this Court's decisions it is permissible for a trial judge to admit into evidence extraneous unadjudicated criminal offenses at the punishment stage of the trial where death is a possible punishment, as well as the kitchen sink. Winston Cochran, given the fact that you and I like to keep tract from our respective positions what we believe are arguably this Court's worst decisions, are you listening? Because Garcia held that the State is not even required to establish beyond a reasonable doubt at the punishment phase of a capital murder case that the defendant committed the extraneous criminal wrong, notwithstanding that I appealed Garcia's case, I believe that Garcia probably should rank in the top ten of this Court's worst decisions. To say that "Analogously, past conduct may have probative value to show that an accused's prediction as to future compliance with the law is unduly optimistic", as the majority opinion in this cause does, is, given the differences between what is admissible at the punishment stage of a capital murder case and what is admissible under Art. 37.07 at the punishment stage of a non-capital murder case, as here, ludicrous.

The concept of an attorney "opening the door" to what would otherwise be inadmissible evidence or testimony on cross-examination is based upon the fact that once the opposing party has opened an inquiry into a particular subject, that party cannot complain when the other party desires to go into the details of that subject. See Art. 38.24, V.A.C.C.P., which provides, in pertinent part: "When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other party." For example, the general rule is that neither party can show the details of criminal offenses resulting in final convictions offered at the punishment stage of a non-capital case under the provisions of Art. 37.07. However, if the State on cross-examination "opens the door" into why he pled guilty to the offense, the defendant is entitled to fully explore the issue, including bringing out favorable details why he pled guilty. See Parr v. State, 557 S.W.2d 99 (Tex.Cr.App. 1977). Evidence which is used to fully explain a matter opened up by the other party need not be ordinarily admissible. Parr, Id. The "opening of the door" rule applies with equal force to either the prosecution or the defense. Parr, Id.

The more common example of when a defendant might "open the door" to what would otherwise be improper cross-examination is when the defendant makes a blanket statement, such as "I have never before been in any kind of trouble with the law", "I have never before been convicted of any kind of crime", or "I have never before done anything like this." In Eloms v. State, 264 S.W.2d 725 (Tex.Cr.App. 1954), this Court observed:

Prudence favors a showing by the accused that he is eligible under the suspended sentence law, enjoys a good reputation

as a law abiding person, and no more. If he goes further and makes blanket statements about exemplary conduct, then the State may refute them.

When the defendant or a State's witness makes blanket statements about exemplary conduct, he "opens the door" to being impeached by relevant questions that would show that he has left a false impression with the jury of just what his past criminal conduct might have consisted of, i.e., the witness has "opened the door" by giving an erroneous impression about his past criminal conduct. Also see Trippell v. State, 535 S.W.2d 178 (Tex.Cr.App. 1976), where the State's witness represented himself as a law-abiding citizen who was only aiding the Sheriff's Department out of a sense of civic duty and the witness denied that he had ever been convicted, and this Court held that it was reversible error for the trial court to deny the defendant the right to cross-examine the witness as to prior criminal convictions and other relevant matters that would tend to reflect on the witness' bias, prejudice, and ulterior motives.

As previously pointed out, the court of appeals ruled, not that appellant "opened the door" to the prosecuting attorney's questioning him about the prior unadjudicated extraneous criminal misdemeanor offense of selling methamphetamine to another individual, but that such cross-examination was permissible pursuant to this Court's decision of Albrecht, and its progeny. Today, however, the majority opinion holds that appellant "opened the door" to such cross-examination because he gave a subjective negative answer to a subjective question his attorney asked him, whether he would in the future engage in criminal conduct that would constitute a violation of the laws of this or any other State of the Union, or of the United States. The prosecuting attorney did not object either to the question or the answer.

It has been stated that whether an applicant for probation in a non-capital case has a trait or propensity to violate the law in the future is not relevant to a material issue raised by the application for probation in a non-capital punishment proceeding before a jury. For that matter, neither is a declaration by applicant that he will not violate the law if placed on probation. The theory on which the trial court in this instance allowed the prosecution to cross-examine appellant is untenable.

Again, we are not dealing with a capital murder case, where this Court has held that virtually anything, including the kitchen sink, is admissible evidence in order for the jury to answer the question whether there is a probability that the defendant would commit criminal acts of violence in the future that would constitute a continuing threat to society. See Art. 37.071. All that appellant professed on direct examination is that he would not if the jury recommended that he be placed on probation commit in the future any criminal wrongs; he did not profess that he had not, excluding the crime for which he was convicted, committed any other criminal wrongs. Had he done so, of course, he would have "opened the door." Also, if he had testified that he had not since the day he was arrested committed any criminal wrongs, he would have "opened the door." But he did not so testify.

Thus, on what basis did appellant "open the door"? The majority opinion holds that "In our view [appellant's] assertions of good conduct, past and future, were sufficient to open the door to the State's evidence of specific misconduct." (Page 303 of opinion.)

Appellant, in his petition for discretionary review, pointed out that for the prosecuting attorney's cross-examination to have been proper, it was necessary that it "relate in some manner to the application for probation . . . In other words . . ., the relevance of the offered evidence must be judged on the basis of whether it has the possibility of resolving an issue presented by the application for probation." (Page 6, Appellant's Brief on Discretionary Review.) Appellant also correctly pointed out that "The only matter that could be disputed in the Appellant's Application for Probation is whether he had ever been convicted of a felony in Texas or elsewhere. The cross-examination question that raised the existence of another offense could not have contributed to the determination of that issue. Evidence that the Appellant violated the law following his arrest in the case being prosecuted could not have shown whether the Defendant had ever been convicted of a felony . . . In the case at bar, none of the Appellant's testimony attempted to leave an impression with the jury that he had not previously committed criminal acts." Id., at pp. 6-7.

Appellant did not "open the door" to the cross examination that occurred. Therefore, I respectfully dissent to the contrary holding by the majority opinion.