Ward v. State

on appellant’s motion for rehearing

WOODLEY, Judge.

On original submission we reached the conclusion that because appellant, on his direct examination, had first gone into the matter and had testified that he had never had an accident, reversible error was not shown in his being asked on cross-examination : “As a matter of fact, you had a wreck in Monahans and paid a $200 fine didn’t you?”

Appellant admits that it would have been proper for the state to show, if they could, that contrary to appellant’s claim, he in fact had been involved in an accident. But he points out that this was not the basis of his complaint.

The record shows that appellant was not involved in an accident on the present occasion, and when asked, he denied that he had previously had an accident in Winkler County or in Monahans, in Ward County.

As shown by the record, the objection was addressed to the portion of the question relating to the payment of a $200 fine, counsel stating “On that $200 fine, that is a blow below the belt, and we move for a mistrial.” To this objection the court ruled “I refuse to grant your motion for mistrial; I think it is proper cross-examination.”

Unless it be the form of the question there is nothing in the record of which we may take cognizance to show that appellant was fined $200 for an offense which grew out of a wreck, or that appellant was ever involved in an accident or a wreck.

The cases cited in support of our holding go no further than to say that, a defendant having testified that he had never engaged in certain conduct, it was permissible for the state to show that he had done so and had pleaded guilty therefor. Lampkin v. State, 47 Texas Cr. Rep. 625, 85 S.W. 803; Kemp v. State, 157 Texas Cr. Rep. 158, 247 S.W. 2d 398.

In Evans v. State, 156 Texas Cr. Rep. 474, 243 S.W. 2d 843, cited in our original opinion, the defendant testified that he had never been in trouble in his life and had never been in court before, and the state was permitted on cross-examination to inquire if in fact he had not been twice previously convicted of the same offense for which he was then on trial.

Neither of these cases may be construed as supporting the view that because an accused testifies he has never been involved in an accident he may, on cross-examination, be asked if he had not been fined $200 for some unidentified offense not involving moral turpitude or of the grade of felony.

Upon reconsideration of the questions in the light of appellant’s motion wé have reached the conclusion that the asking of the question regarding the payment of a fine requires that appellant be granted another trial.

Appellant’s motion for rehearing is granted, the order of affirmance set aside, and the judgment is now reversed and the cause remanded.