Bell v. State

AKIN, Justice.

The panel opinion is withdrawn and the following is the opinion of the court sitting en banc.

Defendant appeals from his conviction for burglary. Punishment was assessed at 16 years. The principal question presented is whether the trial judge erred in allowing the State to cross-examine him about the enhancement paragraph of the indictment during the guilt/innoeence phase of the trial. We hold that he did not. Because the additional points of error, discussed in an unpublished opinion, also lack merit, we affirm.

Defendant contends that the trial judge erred in allowing the State to cross-examine him about the enhancement paragraph of the indictment during the guilt/innocence phase of the trial. In cross-examination, the State questioned defendant as follows:

Q. So you’ve been duly and legally convicted of two separate felonies, is that correct?
A. Yes, sir.
Q. Credit card abuse and burglary of a vehicle?
A. Yes, sir.
State: We’ll offer into evidence State’s Exhibit No. 13.
Defense Counsel: No objection, Your Honor.
The Court: It will be admitted.
Q. (State) Mr. Bell, you are one and the same who has been charged in this indictment before the court right now, is that correct?
A. Yes, sir.
Q. And you understand that the indictment that’s been filed against you by the Dallas County Grand Jury in this case contains an enhancement paragraph?
A. Yes, sir, it does.
Q. Mr. Bell, you understand that this indictment that has been filed against you by the Dallas County Grand Jury, that’s what we call an enhancement indictment?
*379A. Yes, sir.
Q. Okay. And what that means is that instead of the bare minimum punishment you can receive for this offense, that being five years, instead of five years like it normally is since it’s an enhanced indictment the bare minimum you’re looking at is fifteen years if you’re convicted of this offense?
Defense Counsel: Your Honor, we’ll object to that.
State: Judge, I think I can go into the bare—
Defense Counsel: We object to any mention of an enhancement paragraph in the guilt or innocence phase of the trial, Your Honor. We feel it’s improper and we object to it.
The Court: All right. The objection will be overruled. I’ll allow the witness to answer the last question.
Q. (State) Mr. Bell, you understand that if you’re convicted of this offense that you’re looking at the bare minimum of fifteen years, you understand that, don’t you?
A. Yes, sir.

Defendant contends that because the State had already used the offense of credit card abuse to impeach his credibility, the reference to the enhancement paragraph on the same offense was superfluous and was used only to improperly interject punishment issues at the guilt/innoeence phase of the trial. We do not agree. When a defendant elects to testify, he is subject to the same rules as any other witness which includes impeachment. Ayers v. State, 606 S.W.2d 936, 939 (Tex.Cr.App.1980). Impeachment may include prior convictions involving moral turpitude, Tex.Code Crim.Pro.Ann. art. 38.29 (Vernon 1979). Likewise, impeachment includes any reason which may motivate the witness not to speak the truth. Certainly, the fact that the defendant by virtue of the enhancement paragraph, if convicted, would receive a minimum of fifteen years, shows a high motivation for the defendant not to speak the truth. Thus, because the inquiry was proper cross-examination, no error is shown.

Furthermore, even if the cross-examination had been improper, any error was rendered harmless because the prior convictions, supporting enhancement were already in evidence. Consequently, the fact that the defendant would receive a minimum of fifteen years would probably cause the jury to consider the evidence even more carefully to avoid imposing such a sentence on the defendant. Thus, no error occurred justifying reversal of the judgment of conviction.

GUITTARD, C.J., and ROBERTSON, CARVER, FISH and GUILLOT, JJ., join in the majority opinion. SPARLING, J., filed a concurring opinion. WHITHAM, J., filed a dissenting opinion joined by STEPHENS, VANCE and ALLEN, JJ. STOREY, J., did not participate.