Cravens v. State , 1985 Tex. Crim. App. LEXIS 1255 ( 1985 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted by a jury of two counts of rape of a child pursuant to former V.T.C.A. Penal Code, § 21.09.¹ Punishment was assessed by the court at 12 years confinement in the Texas Department of Corrections. On appeal, the Houston Court of Appeals affirmed the conviction in a published opinion. Cravens v. State, 663 S.W.2d 668 (Tex.App.—Houston [1st Dist.] 1983).

We granted appellant’s petition for discretionary review to examine the continued viability of the holding of cases like Smith v. State, 86 Tex.Crim. 455, 217 S.W. 154 (1919), and Feather v. State, 169 Tex.Crim. 334, 333 S.W.2d 851 (1960), which held that for purposes of aiding the factfinder’s credibility determination, a female witness may be asked on cross-examination whether she is a “common prostitute.” The nexus between truthtelling and this particular occupation was first expounded upon by Judge Henderson in McCray v. State, 38 Tex. Crim. 609, 44 S.W. 170 (1898). Judge Henderson stated that:

“In common experience, it is known that persons who are so morally degraded as to ply their vocation as common prostitutes are not on a plane with the mass of people who follow legitimate and honorable vocations, in the matter of integrity. As a general rule, they are no more capable of telling the truth than one who has been convicted of a felony, or of some misdemeanor involving moral turpitude, and they are not more worthy of belief than such a one.”

Twenty years later in Smith, supra, this Court held that it was proper for a defense witness to be asked on cross-examination if she is a common prostitute. Citing Smith, supra, the Court in Feather, supra, allowed the same question of a defense witness upon cross-examination. Feather, however, expanded upon this by holding that “[t]his is so only where the question is asked in good faith and an affirmative answer is expected.”

Also relied upon in Feather, supra, is Myers v. State, 149 Tex.Crim. 301, 194 S.W.2d 91 (1946), which held that ordinarily a witness may be asked their occupation and that a “witness may be asked, upon cross-examination, if she is a common prostitute” but cannot be impeached upon the answer given.² Further, we held that “[a] witness may not be impeached by proof of specific acts of misconduct which have not eventuated into an indictment or conviction.” This limitation has been basically codified by our Legislature in Art. 38.29, V.A.C.C.P.³

The court of appeals, in its opinion in this case, dismissed appellant’s complaint stating that “[i]t is well established that a witness may be asked on cross-examination if she is a common prostitute.” We believe that since this “impeachment” practice was justified solely by the common experience or mores of the day in the 1890’s, and since the Legislature has since seen fit to codify the prohibition against impeachment by pri- or acts of misconduct,⁴ a reanalysis is in order.

First we must define the nature and scope of our inquiry. This is not a question of simple impeachment by proof of prior acts of misconduct; to wit, prostitution. If it were, a simple reference to Art. 38.29, V.A.C.C.P., would dispose of the matter. Rather, this query concerns the interrelationship with an entirely different eviden-tiary rule of admissibility that, in this instance, accomplishes the same purpose of impeachment. That rule allows the admissibility of testimony concerning a witness’ occupation in order to aid the trier of fact. Germane to the case at hand, Yeager v. State, 96 Tex.Crim. 124, 256 S.W. 914 (Tex.Cr.App.1923), interpreted the rule as follows:

“We have also held that as affecting her credit a female witness may be asked if she is not a common prostitute [citing McCray, supra, and other cases]. As we understand it, this latter character of cross-examination is permissible, not upon the ground that isolated acts of immoral conduct may be shown to impeach a witness, for proof of such isolated acts is inhibited [sic], but upon the ground that the history, occupation, etc. of a witness are always legitimate subjects of investigation. Underhill’s Cr. Evidence (3rd Ed.), § 387 at 915.” (Emphasis supplied)

When the occupation is reputable, it as-sumedly adds to a witness’ credibility. Contra, when the occupation is not so reputable in the eyes of the trier of fact, it detracts from credibility just as true impeachment evidence does. Indeed, this court has often referred to this testimony as “impeachment,” thus adding to the confusion that is perpetuated in the concurring opinion.

Our inquiry, then, is whether the occupation of a witness is so probative of his or her credibility as to outweigh any prejudicial effect that occupation might simultaneously engender by its revelation. In general, “[qjuestions as to the place of residence and occupation of the witness, and the like, may be asked for the purpose of identifying him and placing before the jury facts from which they may judge of his standing and the weight to be given his testimony.” Thus, an inquiry into a witness’ occupation is probative enough of credibility to be admissible. 37 Tex.Jur.3d, Evidence, § 666 (1984).

A question as to the occupation at hand — prostitution—deserves special handling, however, because it de facto reveals prior acts of misconduct pursuant to V.T. C.A. Penal Code, § 43.02, evidence of which is prohibited by Art. 38.29, supra. No other “occupation” which would de facto reveal acts of misconduct, i.e., common loiterer, common burglar, common criminal, etc., has a rule of admissibility similar to the one in question.⁵ As discussed earlier, under Art. 38.29, supra, the general rule regarding impeachment of witnesses is that a witness, by testifying, places his credibility in issue, and the opposing party may seek to impeach such credibility by proof that the witness has been convicted, of a felony offense or a misdemeanor involving moral turpitude.

On balance then, when determining the credibility of a witness is the issue, whatever probative value knowledge that the witness is a common prostitute has is outweighed by the legislatively mandated prohibition against impeachment by prior acts of misconduct. To allow such a question for this purpose, over objection, is error. To the extent they are in conflict, the McCray line of cases, including Smith, Feather, Myers, supra and Sanford v. State, 120 Tex.Crim. 249, 46 S.W.2d 307 (1932), are overruled.

Turning now to the case at bar, the complainant was the thirteen year old adopted daughter of appellant. Complainant’s mother and appellant were divorced and appellant had remarried. Complainant continued to visit appellant and spent alternate weekends with him and his present wife, Cathy Cravens, and their family.

Appellant alleges in his first and second grounds of error that the trial court erred in allowing the prosecutor to improperly impeach the witness, Cathy Cravens, by asking her if she was a common prostitute and not being bound by her negative answer.

Cathy Cravens was called as a defense witness and testified regarding the relationship between the complainant, complainant’s mother, and appellant. Her testimony established the fact that there was extreme animosity between the family of the complainant and the family of the appellant. Indeed, this animosity reached such a degree that a fight occurred in the hall outside of the courtroom between defense and prosecution witnesses. She also testified regarding specific events that occurred on or about the time of the alleged offenses, the proximity of the sleeping quarters at their home, sleeping arrangements at the motel they used on visits to the beach, and the inability of the appellant to commit the acts alleged by the complainant.

Germane to appellant’s contention that this chief defense witness was improperly impeached, the record shows the following occurred during the cross-examination of Cathy Cravens:

“Q. Isn’t it true, Ms. Cravens, that you have worked as a common prostitute?

“MR. CONKLIN: I would object to that and ask the Court to remove the jury.⁶

“THE COURT: Would you wait out in the jury room, please, ladies and gentlemen?

(At this time the jury is retired to the jury room and the following proceedings are had out of the presence of the jury.)

“MR. CONKLIN: Judge, my objection is that he is going into a rap sheet here and he is asking her if she worked as a common prostitute. That evidence is not admissible. He can ask her if she was convicted of anything, but he is going into a rap sheet and showing it to the jury in an attempt to inflame their minds and infer that she has been convicted of something. He is only inferring these things to inflame the minds of the jury.

“THE COURT: For what purpose are you offering this testimony?⁷

“MR. EGGLESTON: Impeachment. To impeach this witness’s character showing moral turpitude.

“THE COURT: The Court will overrule the objection.

“MR. CONKLIN: May I see those eases he handed you, Judge? I’d like to know what he wants to impeach her on.

“THE COURT: Read that case. The Court of Criminal Appeals held that you could ask the witness that. In view of the facts in this case, I rule that the testimony is admissible. In view of her testimony—

“MR. CONKLIN: This is a 1931 case.⁸ From this particular case, the facts do not apply to this case here at all. The only question the prosecutor ought to be able to ask Ms. Cravens is if she has ever been convicted of a felony or a misdemeanor involving moral turpitude during the past ten years.

“THE COURT: The court will overrule the objection. Bring in the jury.

“MR. CONKLIN: We would except and respectfully move for a mistrial.

“THE COURT: Overruled.

“MR. CONKLIN: Before we bring the jury in, would you instruct the prosecutor not to pull the rap sheet up in front of the jury?

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“Q. Inasmuch as my last question to you was not answered or was at least not audible, I would ask if you would respond to the same question in the same way?

“A. I said no, I was not.

“Q. Well let me ask you this. If in fact somebody has worked as a prostitute, they do develop a sense of acting, do they not?

⅜ # s}s ⅜ sjc *

“Q. That’s part of the craft, isn’t it, Ms. Cravens?

“A. I don’t know.

“Q. I’m bound by your answer. I couldn’t disprove your answer under the law, can I? ⁹

“A. No, sir.

Though proffered by the prosecutor for “impeachment,” the judge clearly relied on Sanford, supra, which relies on the McCray line of cases discussed throughout this opinion. Thus, it is clear that the trial judge allowed the question for purposes that we have deemed improper.

For the reasons given above, we hold that this question was clearly improper and constituted error. The question of whether this constituted harmful error was not, understandably, briefed in the court of appeals nor was it a part of that court’s decision being reviewed in this Court. This cause, therefore, will be remanded to the court of appeals for a determination of the harmfulness of this error.

In his third ground of error (review of which was also granted though not alluded to earlier), appellant alleges that the trial court erred in allowing the prosecutor to infer guilt to the appellant by indicating that he associated with a person of bad character, namely, Cathy Cravens. It is a rule of appellate review that the issue on appeal must comport with the objection made at trial. If the objection at trial is different than the argument on appeal, nothing is preserved for review. See Hodge v. State, 631 S.W.2d 754 (Tex.Cr.App.1982); Vanderbilt v. State, 629 S.W.2d 709 (Tex.Cr.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982); and Nelson v. State, 607 S.W.2d 554 (Tex.Cr.App.1980). In the case at bar, the trial objection to impeachment of the defense witness did not preserve the question of guilt by association. Just as this issue was not before the trial court or the court of appeals, it is not properly before this Court.

The judgment of the court of appeals is reversed and the cause is remanded to that court for determination of the harmfulness of the trial error. It is so ordered.

1 . Repealed by Acts 1983, 68th Leg., p. 5321, eh. 977, § 12, effective September 1, 1983.

2 . See also, Conway v. State, 33 Tex.Crim. 327, 26 S.W. 401 (1894), which held that, upon cross-examination, the State could ask a defense witness if he was a confidence man, followed the occupation of working the knife racket, and was a common thief. “But, if [the witness] though compelled to answer the questions, should deny that he pursued such occupations or was a thief, the State would be at its end ...”

3 . Article 38.29, V.A.C.C.P., states in pertinent part:

“The fact that a defendant in a criminal case, or a witness in a criminal case, is or has been, charged by indictment, information or complaint, with the commission of an offense against the criminal laws of this State, of the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment, information or complaint a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the period of probation has not expired.”

4 . Article 38.29, V.A.C.C.P., 1965, set out in n. 1, finds its origins in Art. 732a, V.A.C.C.P., 1925, added by Acts 1951, 52nd Leg., p. 814, ch. 458, § 1, which read as follows:

"The fact that a defendant in a criminal case, or a witness in a criminal case, is, or has been, charged by indictment, information or complaint, with the commission of an offense against the criminal laws of this State, of the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment, information or complaint a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the period of probation has not expired.”

5 . In fact, all other occupations which de facto reveal prior acts of misconduct seem already to be subject to a different rule of admissibility.

"A witness for the state or for the accused may be asked “What is your occupation?’ though his occupation, whether known to the cross-examiner or not, is such that the jury will distrust his testimony. However, if instead of asking the witness what his occupation is, the cross-examiner should ask him if he is not engaged in some named discreditable occupation, the question is improper.” 25 Tex.Jur.3d, Criminal Law, § 3336 (1984).

As stated in Ray, Texas Law of Evidence (Texas Practice 3rd ed. 1980), § 657, 1 Texas Practice 586:

“In both civil and criminal cases a witness may be asked what occupation he pursued or in what business he was engaged. But in criminal cases it seems that he may not be asked if he was in a specific business, where such business is unlawful.”

See Cadle v. State, 122 Tex.Crim. 595, 57 S.W.2d 147 (1932), which disallowed the question "[a]re you a bootlegger?"

6 . Though the appellant’s objection was not to the form of this question, we note that it is improper. See footnote 5.

7 . Emphasis in this testimony is supplied by the writer of this opinion.

8 . Apparently Sanford v. State, 120 Tex.Crim. 249, 46 S.W.2d 307 (1932). As reported in the Southwestern Reporter, a 1931 case fronts the page of Sanford applying to the question asked.

9 . This statement by the prosecutor clearly implies that there is more he would like the jury to hear and is an improper comment.