Murphy v. State

ONION, Presiding Judge,

concurring in part and dissenting in part.

Appellant Murphy was convicted by a jury of the murder of his wife. At the penalty stage of the trial, after the State rested without offering evidence, the appellant testified before the jury in support of his sworn motion for probation and merely stated that he had not been previously convicted of a felony or placed on probation. He thus established his eligibility for probation. See Article 42.12, § 3a(a), V.A.C. C.P. Appellant was not cross-examined. Appellant then rested. Thereafter the State, on the issue of probation, introduced over objection five witnesses who related the details of several recent extraneous unadjudicated offenses.

On appeal appellant, inter alia, complained of the admission of this evidence at his 1984 trial. The Dallas Court of Appeals, in an opinion by the late Justice James Allen, reversed the conviction on the basis of this ground (now point) of error.

Relying upon the panel opinion in Ramey v. State, 575 S.W.2d 535, 537 (Tex.Cr.App.1978), the Court of Appeals found that Article 37.07, supra, established as a general rule that extraneous unadjudicated offenses are not admissible, and that the evidence of such offenses offered in the instant trial was controlled by the general rule. Elder v. State, 677 S.W.2d 538, 539 (Tex.Cr.App.1984). Distinguishing Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), on its facts, the Court of Appeals also observed that departures from the general rules had been tolerated by this Court “only where the defendant has created a false impression before the jury” and held that in the instant case no such false impression was created.

The State’s petition for discretionary review was granted to determine the correctness of the decision of the Court of Appeals. Upon further consideration it is clear that the Court of Appeals, given the particular circumstances of the instant case, reached the right result and its rationale is sufficient to have justified this Court’s refusal of the State’s petition in the first instance. The plurality, while reaching the same result as the Court of Appeals, has so varied the rationale as to lay the basis for future mischief.

The plurality seizes upon a 21-year-old legislative amendment to Article 37.07, V.A.C.C.P., merely defining “prior criminal record” (Acts 1967, 60th Leg., p. 1739, ch. 659, § 22, eff. Aug. 28, 1967) as the basis for now holding that the only evidence that may be permitted at the penalty stage of a bifurcated trial as limited to “prior criminal record of the defendant, his general reputation and his character.” The plurality also would find that by such amendment the 21-year-old Allaben has been “rendered ... of no precedential value on the narrow issue of admissibility of unadjudicated extraneous offenses solely to meet a defendant’s application for probation.” Allaben, of course, did not deal with unadjudicated offenses. Allaben held that the trial court should have allowed the defendant, a sex offender, to show at the penalty stage of the bifurcated trial that he had sought psychiatric treatment for sexual problems when the motion for probation was before the jury. The error was however held to be harmless.

*54The plurality overlooks the history of the bifurcated trial system in Texas. The unitary trial system long prevailed in Texas in felony cases where the plea of not guilty was before the jury. See Article 693, V.A. C.C.P. (1925), and its forerunners. In such cases the jury determined the guilt, and if necessary, the punishment in a one stage trial with one jury charge. The unitary trial system and the language of said Article 693 was retained in § 1 of Article 37.07 in the early drafts of the State Bar Committee's work on the 1965 Revision of the Code of Criminal Procedure. In § 2 of the proposed draft was an “Alternative Procedure,” a bifurcated trial procedure, to be used only within the discretion of the trial judge and with consent of both parties in felony jury cases where the plea was not guilty. It provided that either the State or the defendant “may” independently at the penalty stage of the trial introduce evidence of the defendant’s prior criminal record, his character or reputation. Such “Alternative Procedure” was to provide an experimental basis for future legislation. The proposal was made in response to constant criticism that the unitary system blindfolded the jury as to the defendant’s prior criminal record and to the outrage of jurors who first learned of the defendant’s prior convictions after verdict and learned that such had been inadmissible.

Somewhere in the legislative process a crucial phrase was deleted from § 1 of the proposed statute, and the unitary trial system was gone with the wind. The “Alternative Procedure” became “the” procedure though the 1965 version of Article 37.07, § 2, retained the “Alternative Procedure” label.

The term “prior criminal record” was not defined but this oversight was corrected by the said 1967 amendment. Neither in the 1965 nor the 1967 version of the statute did the Legislature expressly state that the only evidence either party may offer at the penalty stage of trial is the defendant’s prior criminal record (as now defined), his character or reputation. It could have easily done so if that was its intention. The law was basically unchanged at the time of appellant’s 1984 trial. If the law was changed by the 1967 amendment to Article 37.07 merely defining “prior criminal record,” then the plurality fails to explain how a defendant may introduce evidence of temporary insanity caused by intoxication in mitigation of penalty, Y.T.C.A., Penal Code, § 8.04, or how a defendant may establish by evidence before the jury his eligibility for probation under Article 42.12, § 3a(a), supra. Of course, there may be other examples.

Article 37.07, supra, applies in many contexts. It is not limited to situations where the defendant has filed his motion requesting probation at the hands of the jury. Where that situation occurs, however, under Article 42.12, § 3a(a), supra, the sworn motion must show and the proof must support the fact that the defendant has never been convicted of a felony in this or any other state. Thus the defendant must establish eligibility for probation before the jury in order to be entitled to probation. To favorably persuade the jury to grant probation is the defendant limited to mere evidence of his eligibility? While Article 42.12, § 3a(a), supra, requires evidence of eligibility it does not prohibit other evidence by the defendant as to his background and evidence indicative of his successful completion of probation if granted.

Where a motion for jury given probation is involved then any interpretation of Articles 37.07 and 42.12, supra, must be considered in light of the history of and the cases decided under the Suspended Sentence Law (Articles 776-780 inch V.A.C.C. P. — 1925) as well as the history of the Adult Probation Laws in Texas prior to the 1965 Code of Criminal Procedure (Acts 1947, 50th Leg., p. 1049, ch. 452 — codified as Article 781b, V.A.C.C.P. — 1925 and Acts 1957, 55th Leg., p. 466, ch. 226, codified as Article 781d, V.A.C.C.P. — 1925).

The Suspended Sentence Law was first enacted in 1913 permitting juries to grant suspended sentences in certain felony cases under certain conditions. In 1931 judges were permitted to grant suspended sentences (Acts 1931, 42nd Leg., ch. 43, § 4 — See Article 776a, V.A.C.C.P. — 1925). Articles 776, 776a and 778, V.A.C.C.P.— *551925, provided that a defendant, before the judge or jury, as the case might be, must establish his eligibility for a suspended sentence (no prior felony conviction) and provided in the unitary trial then in existence that evidence was limited to “the general reputation of the defendant” which was interpreted to mean the reputation for being a peaceable and law-abiding citizen. See Campbell v. State, 73 Tex.Cr.R. 198, 164 S.W. 850 (1914); Long v. State, 120 Tex.Crim. 373, 48 S.W.2d 632 (1931). See generally 16 Tex.Jur.2d, Criminal Law, §§ 432-438, pp. 673-687.

Probation, on the other hand, first appearing in Texas in 1947, could only be given by the trial judge, a traditional characteristic of probation. While the defendant was required to establish his eligibility for probation (no prior felony conviction) there was no express statutory limitation on the evidence to be offered on the issue involved as in the case of a suspended sentence. Probation could only be given “following conviction or a plea of guilty.” The trial court at the time could not entertain a plea of not guilty in a felony case. A jury had to be empaneled. Upon hearing guilty pleas and considering motions for probation, however, the trial court often heard evidence offered by a defendant as to his “suitability” for probation as well as his eligibility. See Roy v. State, 319 S.W.2d 705 (Tex.Cr.App.1959). See and cf. Cleveland v. State, 502 S.W.2d 24 (Tex.Cr.App.1973).

It was not unusual under the former probation statutes for a defendant to offer to the court evidence from parents, other family members, ministers, former teachers, former or prospective employers, doctors, and even probation officers, etc., all in support of his motion for probation. Reputation witnesses were also utilized by both parties as in suspended sentence cases. The most common witness was usually the defendant himself. Where the defendant sought to establish his eligibility for probation the State was permitted to show a prior felony conviction, if any, and to call witnesses as to the defendant’s “bad” reputation, and to cross-examine defense witnesses. The State was limited in impeaching the defendant or witnesses by the terms of Article 732a, Y.A.C.C.P. (1925), now Article 38.29, Y.A.C.C.P. (1965). Only final convictions, a suspended or probated sentence could be utilized for impeachment. The general rule at trial was that extraneous unadjudicated offense evidence could not be used for impeachment or otherwise on the issue of probation.1 Of course, where the defendant attempted to leave a false impression as to his background or opened the door by claiming he never had been in trouble with the police, had no arrest record, etc., then it was legitimate for the State to prove otherwise. Cf. Nelson v. State, 503 S.W.2d 543, 545 (Tex.Cr.App.1974); cf. also Shipman v. State, 604 S.W.2d 182 (Tex.Cr.App.1980); Carter v. State, 550 S.W.2d 282 (Tex.Cr.App.1977); Reese v. State, 531 S.W.2d 638 (Tex.Cr.App.1976).

In 1965 in order to secure the repeal of the supposedly abused Suspended Sentence Law it was necessary to revise the probation laws in the new Code of Criminal Procedure to permit juries to grant probation as well as judges. See now Article 42.12, § 3a(a), supra. The required sworn motion procedure of the Suspended Sentence Law found its way into the probation laws, but the statutory limitation of evidence to reputation testimony did not. These changes were all made at the same time as the original enactment in 1965 of Article 37.07, applicable at the time only to pleas of not guilty in jury cases. This history must be considered in arriving at a proper rationale.

In the instant 1984 case, considering the law then applicable, Justice Allen for the Dallas Court of Appeals re-utilized the proper rationale and reached the right result.2 The plurality has drifted far afield *56in reaching the same result but in devising a strained new rationale in relying on a misinterpretation of a 21-year-old legislative amendment and seeking to undermine Allaben.

I concur in the result reached but certainly not the reasoning of the plurality.

. However, where the trial court utilized a pre-sentence report as authorized by the Adult Probation Laws in passing upon the question of probation the extraneous unadjudicated offenses, etc., were before the court.

. The appellant offered only evidence as to his eligibility for probation — that he had not previously been convicted of a felony. This alone did not entitle the State to offer the details of extraneous unadjudicated offenses. Appellant *56left no false impression with the jury. The State’s witnesses used, if qualified, might have properly testified as to the appellant’s "reputation for being a peaceable and law-abiding citizen and that it was ‘bad.’ ” The State, however, did not use this approach.