DocketNumber： 03-97-00424-CR
Filed Date： 8/31/1998
Status： Precedential
Modified Date： 9/5/2015
Appellant complains that the trial court did not allow him to impeach the complainant, the State's only witness, by showing that the complainant had been convicted of aggravated assault upon a woman. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by a public record but only if the crime was a felony or involved moral turpitude. See Tex. R. Evid. 609(a)(b). "Aggravated assault (not committed on a female) is not a misdemeanor involving moral turpitude." Valdez v. State, 450 S.W.2d 624, 625 (Tex. Crim. App. 1970). However, a conviction for misdemeanor assault by a man against a woman is a crime involving moral turpitude and therefore is admissible as impeaching evidence under rule 609. See Hardeman v. State, 868 S.W.2d 404, 407 (Tex. App.--Austin 1993, no pet.).
The State points out that at the time of trial, appellant did not show that his prior conviction for assault was the result of an assault upon a woman. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion stating grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 33.1. Error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected, and the substance of the evidence has been made known to the court by offer or is apparent from the context of the questions asked. See Tex. R. Evid. 103.
During the cross-examination of the complainant, he denied that he had a problem with his temper. Then, to impeach the complainant, counsel sought to ask complainant if he had been "convicted of assault with bodily injury." The trial court sustained the State's objection. Appellant failed to show the trial court that the complainant's conviction for assault with bodily injury was for an assault against a woman. Therefore, the conviction was not shown to be for an offense that involved moral turpitude. In the manner presented, the conviction was not admissible to impeach the witness. The trial court did not err in disallowing the impeachment of the witness. On the hearing of appellant's motion for new trial, appellant's offer of proof that the complainant's conviction was for an assault against a woman came too late to preserve the claimed error for appellate review. Appellant's first point of error is overruled.
In his second point of error, appellant alleges that the trial court erred in failing to grant a motion for new trial because appellant was deprived of his right to testify in his own defense in violation of the Texas Constitution. Appellant concedes that his request to testify may have been untimely under a procedural provision, but he insists that the procedural statute must yield to his superior constitutional right. "In all criminal prosecutions the accused . . . shall have the right of being heard by himself." Tex. Const. art. I, § 10. "The Court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice." Tex. Code Crim. Proc. Ann. art. 36.02 (West 1981).
After counsel's closing argument to the jury, the record reflects the following:
THE COURT: Okay. Ladies and gentlemen, you'll now go with our bailiff and under the direction of your Presiding Juror you shall consider your verdict. When you've reached a verdict please notify the bailiff at the door of the jury room.
I'll deliver the charge to you --
THE DEFENDANT: Excuse me, your Honor. Your Honor, excuse me for a minute. I must testify --
THE COURT: Okay. Hold on just a minute.
Ladies and gentlemen, you'll now go with the bailiff into the jury room.
And go ahead and take them.
THE COURT: Would you tell them not to begin their deliberations?
DEPUTY: Yes, sir.
THE COURT: Tell them to hold on, we're in a recess.
Okay. I'm sorry that I interrupted. Was there something, some type of a problem?
THE DEFENDANT: Yes, sir, Mr. Morris. I would like to, I would want to be cross examined by the State and in exchange for testimony on the stand in this case because I have nothing, no reason to hide anything in this case since it was not an Aggravated Assault and that seems to be the question here, sir.
THE COURT: Are you making any motions, Mr. [Defense Counsel]?
[DEFENSE COUNSEL]: Your Honor, I have reviewed with Mr. Holden previous to the beginning of this court the prior felony convictions Mr. Holden has. I believe they're noted in the remaining portion of the indictment. I have advised Mr. Holden that if he testifies that those prior felony allegations will be questioned and that my counsel to him is that he should not testify, not expose himself and be cross examined by the Defense -- by the State, and I still counsel to Mr. Holden that he not testify.
THE COURT: Okay. Are you making any motions now?
[DEFENSE COUNSEL]: I certainly am not making any motion that Mr. Holden be allowed to testify, your Honor, and give up his constitutional right against self-incrimination.
THE COURT: Very well then, we will -- the jury will continue or begin their deliberations and court will be in recess while the jury is deliberating.
Would you hand the Charge to the jury and tell them to begin their deliberations?
We're in recess.
The Texas Constitution grants a defendant the right to testify in his own defense; Article 36.02 provides a reasonable time in which a defendant must exercise that right. There is no conflict between the constitutional provision and the procedural statute. In the instant case, appellant did not timely exercise his constitutional right to testify; therefore, he waived that right at the time of trial. Even constitutional errors may be waived. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1980); Skillern v. State, 890 S.W.2d 849, 880 (Tex. App.--Austin 1994, pet. ref'd). Moreover, when appellant made his untimely request to testify, he did not move to reopen and there was no offer of testimony for a bill of exception. Nothing was preserved for appellate review. See Tex. R. App. P. 33.1; Tex. R. Evid. 103. Defense counsel stated a valid reason why he had advised appellant not to testify. The trial court did not abuse its discretion in refusing to grant the motion for new trial. Appellant's second point of error is overruled.
The trial court's judgment is affirmed.
Carl E. F. Dally, Justice
Before Justices Powers, Aboussie and Dally*
Affirmed
Filed: August 31, 1998
Do Not Publish
* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
Regular">THE COURT: Tell them to hold on, we're in a recess.
Okay. I'm sorry that I interrupted. Was there something, some type of a problem?
THE DEFENDANT: Yes, sir, Mr. Morris. I would like to, I would want to be cross examined by the State and in exchange for testimony on the stand in this case because I have nothing, no reason to hide anything in this case since it was not an Aggravated Assault and that seems to be the question here, sir.
THE COURT: Are you making any motions, Mr. [Defense Counsel]?
[DEFENSE COUNSEL]: Your Honor, I have reviewed with Mr. Holden previous to the beginning of this court the prior felony convictions Mr. Holden has. I believe they're noted in the remaining portion of the indictment. I have advised Mr. Holden that if he testifies that those prior felony allegations will be questioned and that my counsel to him is that he should not testify, not expose himself and be cross examined by the Defense -- by the State, and I still counsel to Mr. Holden that he not testify.
THE COURT: Okay. Are you making any motions now?
[DEFENSE COUNSEL]: I certainly am not making any motion that Mr. Holden be allowed to testify, your Honor, and give up his constitutional right against self-incrimination.
THE COURT: Very well then, we will -- the jury will continue or begin their deliberations and court will be in recess while the jury is deliberating.
Would you hand the Charge to the jury and tell them to begin their deliberations?
We're in recess.