concurring.
Common to both civil and criminal actions is a general rule that questions as to place of residence, occupation and “background” of a witness may be asked in order to place before the jury facts from which they may judge his standing and weight to be given to his testimony. Williams v. State, 604 S.W.2d 146, 149 (Tex.Cr.App.1980); Carrillo v. State, 566 S.W.2d 902, 916 (Tex.Cr.App.1978); Elam v. State, 518 S.W.2d 367, 369 (Tex.Cr.App.1975); 37 Tex.Jur.3d 32-33, Evidence § 666. But that rule contemplates that such questions are part of a “preliminary inquiry” directed to a witness called by the party asking the questions. Williams v. State, supra; Carrillo v. State, supra; Elam v. State, supra; 37 Tex.Jur.3d, supra. They may even be leading in form, for they are but preliminary or introductory matters. Ray, Law of Evidence (Third Edition) § 576, 1 Texas Practice 533.
When the exercise is done on crossexa-mining a witness for the adverse party, however, questions about occupation or business serve a different intent and purpose: to attack the credibility of that witness. Where the effort is to discredit a witness on account of the nature of business or occupation, propriety of such a question is not determined by the balancing test suggested in the majority opinion. It is not a matter of whether probative value of knowledge of the business or occupation of a witness outweighs its prejudicial effect. The test is simply the form of the question put to the witness. A proper question is: What is your business or occupation? An improper question is one that asks if the witness is not engaged in some particular discreditable business or occupation. 37 Tex.Jur.3d 181, Evidence § 748; 25 Tex.Jur.3d 50, Criminal Law § 3336. Especially in criminal actions, a witness “may not be asked if he was in a specific business, where such business is unlawful, ” Ray, op. cit. § 657, 1 Texas Practice 586.1
In the instant case the question posed by the prosecutor is: “Isn’t it true, Mrs. Cravens, that you have worked as a common prostitute?” It is an improper question because the inquiry is directed to a particular discreditable business or occupation that is unlawful. See authorities cited in Ray, supra, § 657, n. 56, 1 Texas Practice 586.2
The contention advanced by appellant to the Court of Criminal Appeals was that the trial court erred in allowing improper impeachment of Cravens. The court of appeals rejected that contention with this:
“It is well established that a witness may be asked on cross-examination if she is a common prostitute. Sanford v. State, 46 S.W.2d 307 (Tex.Crim.App.1932); Feather v. State, 333 S.W.2d 851, 853-4 (Tex.Crim.App.1960).
In Feather, the court expressly held that a witness may be asked upon cross-examination if she is a common prostitute, where the question is asked in good faith and an affirmative answer is expected. The record shows that Mrs. Cravens had been arrested for prostitution, and that the prosecutor stayed within the proper impeachment guidelines. Appellant’s third ground of error is overruled.”
Cravens v. State, 663 S.W.2d 668, 673-674 (Tex.App.—Houston [1st] 1983).
Thus implicated is another general rule of impeachment: that a crossexaminer may ask an adverse witness “any question that tends to impair the force of his testimony, by discrediting him, notwithstanding that the question also tends to degrade the witness,” 37 Tex.Jur.3d 162, Evidence *754§ 737. That which the court of appeals found to be “well established” is derived from such rule, but the most recent case it cited in support is Feather, supra. One digest, 51 West’s Texas Digest 2nd, “Witnesses” § 344(2), indicates there has not been an opinion on the point since then, and Shepard’s Texas Citations shows that Feather has not been cited for that proposition until Mendieta v. State, 659 S.W.2d 489, 491 (Tex.App.—Port Worth 1983), pending on grant of review, and by the court below in the instant cause.
In Stayton v. State, 32 Tex.Cr.R. 33, 22 S.W. 38 (1893), the accused sought to prove through crossexamining a witness for the prosecution that she “had no legitimate occupation, was a common prostitute, and made her living in that way;” the State objected and the testimony was excluded. Writing for the Court, Judge Davidson upheld that ruling because relevancy of the proposed testimony was “not apparent” in that the bill of exception did not state the object or purpose to be attained, but on the face of what was presented succinctly stated:
“It could not be used solely for the purpose of disgracing the witness in the eyes of the jury. It was not impeaching testimony.”
Under circumstances prescribed by every code of criminal procedure, from article O.C. 688 through Article 38.28, a party has been allowed to attack testimony of his own witness in any manner except showing “bad character.” However, until Article 38.29, the same codes were “silent as to methods by which one may attack the credibility of a witness offered by the opposing party,” referring the courts instead to “the rules of evidence known to the common law for guidance.” Carroll v. State, 32 Tex.Cr.R. 431, 24 S.W. 100 (1893). See O.C. 638 and its successors through Article 38.01, Y.A.C.C.P.3
In Carroll v. State, supra, the Court examined common law on “a subject of much opposition and discussion; that is, whether a witness can be compelled to answer a question degrading him, collateral to the main issue, but relevant to his credit,” and found “the authorities cannot be reconciled.” In that circumstance the Court stated:
“We may, therefore, follow the authorities whose reasoning appeals strongest to our judgment, and adopt the rule which tends to elucidate the truth, which is the object of all rules of evidence.” 24 S.W. at 100-101.
In the particular class of “impeachment” at issue here, taken from an English digest of law of evidence, the rule opted for is in essence that upon crossexamination a witness may be asked questions that tend “to shake his credit by injuring his character,” and may be compelled to answer “however irrelevant to the facts in issue, and however disgraceful the answer may be to himself, except where the answer might expose him to a criminal charge.” Ibid. Thus, the Court concluded that there was no error in allowing the State to prove from a witness testifying for accused that the witness was then under indictment for theft. Id., at 102.4
Building on Brittain v. State, 36 Tex. Cr.R. 406, 37 S.W. 758 (1896), which in turns stands on Carroll, supra, in this State the case which first approved the kind of “impeachment” in question is McCray v. State, 38 Tex.Cr.R. 609, 44 S.W. *755170 (1898). Reasons making it the rule were given by Judge Henderson, viz:
“In common experience, it is known that persons who are so morally degraded as to ply their vocation as common prostitutes are not on a plane with the mass of people who follow legitimate and honorable vocations, in the matter of integrity. As a general rule, they are no more capable of telling the truth than one who has been convicted of a felony, or of some misdemeanor involving moral turpitude, and they are no more worthy of belief than such a one; and we see no good reason, when a witness is tendered by either party, and testifies as to some material issue in the case, why it should be [sic] permitted, on cross-examination, to prove he follows some illegal or disreputable vocation for a living. As for that matter, we think it is within the sound discretion of the court, always, on the crossexamination of a witness, to permit to be shown the calling or business followed by such witness, his residence, etc. [Excerpt from Wilbur v. Flood, 16 Mich. 40-43 (cited in Thomp. Trials, p. 404) omitted.]”
Id., 44 S.W. at 171.5 Permission was limited, however, to terms of the grant, for the Court added:
“While we agree to the rule that a witness on crossexamination can be interrogated as to matters which involve moral turpitude, either on account of conviction for crime, or on account of some avocation, yet we would not be understood as holding that a witness, on such cross-examination can be contradicted or impeached in regard to such matters, nor that other witnesses may be called originally to prove such matters against a witness. As stated by the authorities, this would involve a trial of collateral issues, and would often prove interminable. And we hold that the court did not err in excluding the witnesses called to prove that the state’s witnesses were common prostitutes.”
Id., 44 S.W. at 172.
Though the Court did not then expressly say so, it would follow that “the party asking the question is bound by the answer given.” Sanford v. State, 120 Tex.Cr.R. 249, 46 S.W.2d 307, 308 (1932). Without citing any authority for support, in Feather v. State, supra, the Court added a further condition — “only where the question is asked in good faith and an affirmative answer is expected,” id., at 854. So, there the matter stood in 1960—and stands today.
Today the majority undertakes a reanalysis, resorts to a “balancing test” and concludes that on the issue of credibility of a witness “whatever probative value knowledge that the witness is a common prostitute has is outweighed by the legislatively mandated prohibition against impeachment by prior acts of misconduct.” The plain connotation in the precise question the prosecutor posed to Mrs. Cravens is that she had committed but had not been convicted of prior criminal offenses of prostitution, denounced by V.T.C.A. Penal Code, § 43.02(a). Earlier for purposes of impeachment that fact could be shown by introducing relevant charging instruments. Hogue v. State, 155 Tex.Cr.R. 310, 234 S.W.2d 687, 689 (1950); Carroll v. State, supra. But more than thirty years ago, and perhaps in the wake of Hogue, supra, the Legislature limited that practice to instances of a final conviction, suspended sentence or unexpired probation. See Acts 1951, 52nd Leg., ch. 458, p. 814. Those limitations were carried forward in 1965 through Article 38.29, V.A.C.C.P. Thus, neither a “balancing” nor any other kind of *756test is needed to determine whether to enforce a clear legislative prohibition.
Nor is there any indication that in allowing the question the trial judge applied any such “balancing test.” When asked the purpose of his proffer the prosecuting attorney replied, “Impeachment. To impeach this witness’s character showing moral turpitude.” The court promptly overruled the objection. Yet, ordinarily general bad moral character is not provable to impeach a witness. Shannon v. State, 567 S.W.2d 510, 514 (Tex.Cr.App.1978); Ray, op cit, § 645, 1 Texas Practice 572.6 Nor may such an inquiry be addressed to a witness for purposes of impeachment. Leal v. State, 614 S.W.2d 835, 837-838 and n. 3 (Tex.Cr.App.1981). Ray, op cit, § 647, 1 Texas Practice 573-574. The “only exception” is the question of a female witness on crossexamination as whether she is a common prostitute, and even then the questioner is bound by her answer. Id, n. 7.
The decision of the Court relied on by the prosecutor and the trial judge in this cause, Sanford v. State, 120 Tex.Cr.R. 249, 46 S.W.2d 307 (1932), correctly found:
“It has long been the rule in this court that a witness may be asked on cross-examination is she is a common prostitute, and that the party asking the question is bound by the answer given, and cannot call other witnesses to impeach her testimony or disprove her answer. [Citing McCray v. State, supra, and a host of its progeny.]”
However, as demonstrated ante, McCray goes back to Carroll v. State, supra, and the perception of the Carroll Court of “the teaching of human experience” required it to dispute the leading opinion of the Supreme Court of Texas in Boon v. Weather’s Adm’r, supra, at 678 ff., in order to opt for a common law rule which led to its conclusion that there was no error in allowing the State to prove from a defense witness that he was then under indictment for theft. That the conclusion has since been rejected by legislative prohibitions in predecessors to Article 38.29, supra, strongly suggests that the rule itself was rejected as well.
Certainly the primary rationale espoused by the McCray opinion for extending the common law rule fashioned by Carroll is not valid in any other context. What was considered by judges before the turn of the century as “common experience” is not necessarily a verity today. Without some fresh indicia of support for the former proposition, it is an assault upon personal dignity of a witness giving testimonial evidence under oath to “shake his credit by injuring his character” through prying questions about sexual behavior, conduct or activities which, though deemed offensive by some, have not yet been prosecuted to final conviction. Randolph v. State, 499 S.W.2d 311, 313 (Tex.Cr.App.1973); see Brown v. State, 168 Tex.Cr.R. 67, 323 S.W.2d 954, 956-957 (1959) and Thrash v. State, 482 S.W.2d 213, 214 (Tex.Cr.App.1972).
The courtroom is not the place to stage a play that may be moralistic only in the eye of a beholder. McCray is an anachronism; its force and effect have evaporated in time.
For reasons given I concur in the judgment of the Court.
TEAGUE, J., joins.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. Had the question been "Mrs. Cravens, what is your occupation?” and she had answered "common prostitute,” we would be confronted with a different problem — one we need not address today.
. Article 38.01 provides:
“The rules of evidence known to the common law of England, both in civil and criminal cases, shall govern in the trial of criminal actions in this State, except where they are in conflict with the provisions of this Code or of some other statute of the State.”
. Noting the Supreme Court of Texas had said in Boon v. Weather’s Adm'r, 23 Tex. 675, 684 (1859), that one of vicious character “may still preserve the priceless virtue of truth, though every other virtue has gone," the Court declared that proposition so against “the teaching of human experience ... as should require the fact to be affirmatively shown.” Its own view was that since “[a]mong the dissolute and degraded, we do not naturally seek or expect to find this best characteristic of manhood), wjithout proof to the contrary, a jury may fairly assume that from immoral and criminal character truth has fled, with other virtues.” 24 S.W. at 101.
. Though what has been quoted above and the excerpt would later be relied on to find no error in allowing the State to ask on crossexamination of a witness who had said she was living with her three children, whether she had ever been married, Mobley v. State, 89 Tex.Cr.R. 646, 232 S.W. 531, 534, 535 (1921), the Court came to understand that asking a female witness on crossexamination if she is not a common prostitute is permissible "upon the ground that the history, occupation, etc. of a witness are always legitimate subjects of investigation. Underhill’s Cr. Evidence (3d Ed.) § 387.” Yeager v. State, 96 Tex.Cr.R. 124, 256 S.W. 914, 915 (1923).
. "[T]hat a lack of veracity does not so consistently coincide with a bad general character, as to make proof of bad general morals persuasive of bad veracity ... appears to be the soundest view and in this country, the great majority of jurisdictions, including Texas, exclude evidence of general moral character.”