Roberts v. State

HOLMAN, Justice,

concurring.

I concur that the opinion of my colleagues is a correct expression of the remoteness rule in Texas as it applies to the facts of this case.

I strongly believe, however, that a modification of the rule would better serve the search for truth and justice that is the objective of our judicial system.

In the present case, appellant armed himself and went to his wife’s apartment and became involved in an encounter that resulted in her death.

In 1965, appellant was convicted of assault with intent to murder his prior wife and was sent to prison. He was paroled in 1967.

While a paroled prisoner is out of prison, he is not discharged from his conviction, but continues to be subject to his full sentence, until he either serves its remainder or is pardoned. Ex Parte Lefors, 165 Tex.Cr.R. 51, 303 S.W.2d 394 (1957).

The evidence is that appellant’s prior conviction was pardoned on August 4, 1970, which is less than 10 years prior to the date of trial in the present case.

While only a “rule of thumb” for determining remoteness, a period of 10 years appears solidly entrenched in this State as the period of limitation. McClendon v. State, 509 S.W.2d 851 (Tex.Cr.App.1974).

The rationale as expressed in McClen-don is sound: An accused should not be impeached by convictions which occurred so far in the past that they do not shed any light on his credibility at the time of trial.

It also is well established that in determining the remoteness of a prior conviction, the computation of the intervening time is deemed to have begun on the date the prisoner was released from prison, albeit on parole. McClendon, supra.

However, 67A C.J.S., Pardons and Paroles, observes in section 57 that:

Although the parole grants him partial liberty and allows him greater freedom of movement than he had previously, it does not change his status as a convict, and does not operate as a discharge. Under or apart from statutes expressly so providing, a paroled prisoner, although conditionally released from actual custody, remains in legal custody and is constructively a prisoner of the state or nation, as the case may be.

The paroled prisoner remains under conviction and is still serving his sentence. A parole does not vacate, set aside, or terminate the sentence, modify it, or shorten the term.

Yet the Texas remoteness rule treats the date of parole as if it is the date on which the prisoner is discharged from his conviction, having fully paid his debt to society.

When an accused is tried for the intentional taking of a human life and has been convicted previously on a like charge, or on a prior charge of assault with intent to murder, then the singular fact that he was paroled during the prior sentence should not cause the 10-year period to expire sooner than it would if he had served the entire sentence in prison instead of on parole.

In such trials, unless the trial court in its sound discretion determines that the prejudicial effect of the evidence of the prior conviction on such charges substantially outweighs its probative value, the computation of 10 years should not begin until the originally scheduled expiration date of the prior sentence or date of full pardon, whichever is earlier.

Having concluded that this court has reached the only result presently available to it under the authority of Davis and McClendon, supra, though being dissatisfied with that result, I concur.