William Bauder, III v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-365-CR





WILLIAM BAUDER, III,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 0913613, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

After finding appellant guilty of the offenses of aggravated sexual assault of a child, Tex. Penal Code Ann. § 22.021(a)(1)(B) (West 1989), and indecency with a child, Tex. Penal Code Ann. § 21.11(a) (West 1989), the jury assessed punishment at confinement for seventy-five years and confinement for ten years, respectively. In a single point of error, appellant asserts that the trial court erred in overruling his motion for a mistrial after the State questioned appellant about an unadjudicated extraneous offense. We will overrule appellant's point of error and affirm the judgment of the trial court.

The victim, age ten years (age seven at the time in question), testified that appellant had been her baby-sitter "a lot of times." The victim stated that after appellant removed both his clothes and her clothes, he would perform the following acts: penetrated her vagina with his sexual organ, hurting her when he attempted this act; kissed her on the mouth, vagina and other parts of her body; put his fingers in her vagina; and made her kiss him on his penis and perform oral sex. The victim demonstrated appellant's acts with the assistance of anatomically correct male and female dolls.

Appellant testified on direct examination that he would not do "anything like this to a woman or child." The following occurred during cross-examination of appellant that forms the basis of appellant's point of error:

Q. [Prosecutor]  Well, you wouldn't come in here and tell us if you did, would you?

A. [Appellant]  If I did -- If I did do it, I would tell you I did. If I did do it, I would tell you, and that is the honest to God truth. I was raised that way. My mother had raised me to where if I am -- if I do something wrong, admit to what you have done, take your punishment, and get it over with.

Q. [Prosecutor]  Well, when you stole that man's car, did you admit to it?

A. [Appellant]  When I stole that man's car?

Q. [Prosecutor]  When you stole that man's car, did you admit to it?

Appellant's motion for a mistrial based on the prosecutor's injection of an unadjudicated offense in violation of Rule 609(a) of the Texas Rules of Criminal Evidence was overruled. The court stated that there would be no more of "that line of inquiry" and instructed the jury to disregard the last question and response.

The general rule governing impeachment by evidence of conviction of prior crimes provides:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.

Tex. R. Crim. Evid. 609(a).

However, evidence of an arrest or unadjudicated offense may be admissible when a witness creates a false impression that suggests he has never been arrested or charged with an offense and opposing counsel may expose the falsehood. See Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App. 1993), cert. denied, 114 S. Ct. 481 (1993). In the instant cause, appellant denied that he would "do anything like this" to a woman or child, but he did not suggest that he had never been arrested or charged with an offense. Therefore, appellant did not open the door for the prosecutor to question him about whether he admitted an unadjudicated auto theft offense. However, "it has long been held" that testimony referring to or implying extraneous offenses allegedly committed by the defendant can be rendered harmless by an instruction from the trial court to disregard. See Davis v. State, 642 S.W.2d 510, 512 (Tex. Crim. App. 1982); Kirkland v. State, 786 S.W.2d 557, 562 (Tex. App.--Austin 1990, no pet.). In the instant cause, the colloquy between the prosecutor and appellant constituted nothing more than a question about whether appellant had admitted an extraneous offense. The matter was never alluded to again. In light of the court's instruction to disregard, we find beyond a reasonable doubt that the asking of the question made no contribution to the conviction or to the punishment. Appellant's point of error is overruled.

The judgment is affirmed.

Tom G. Davis, Justice

Before Justices Aboussie, Jones and Davis^*

Affirmed

Filed: May 25, 1994

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).