Lopez v. State

MANSFIELD, Judge,

concurring and dissenting on appellant’s petition for discretionary review.

I concur with the Court’s disposition of appellant’s second and third grounds for review and the State’s cross-petition for discretionary review. However, because I disagree with the Court’s disposition of appellant’s first ground for review, I must respectfully dissent.

Appellant was originally indicted in 1988 for the offense of murder, pursuant to Texas Penal Code § 19.02(a)(1), alleged to have been committed on or about June 25, 1979. His conviction and sentence of life imprisonment were reversed by the Third Court of Appeals. Lopez v. State, 793 S.W.2d 738 (Tex.App.— Austin 1990), pet. dism’d, 810 S.W.2d 401 (Tex.Crim.App.1991). On remand, a jury again found appellant guilty of murder and sentenced him to life imprisonment. The jury also found appellant used a deadly weapon in the commission of the offense. The Third Court of Appeals affirmed appellant’s conviction and sentence. Lopez v. State, No. 03-92-304-CR (Tex.App.—Austin 1994) (unpublished). This Court granted appellant’s petition for discretionary review and the State’s cross-petition for discretionary review. We did so to address three grounds for review raised by appellant and one ground for review raised by the State.

In appellant’s first ground for review, he argues the court of appeals erred in holding that a highly prejudicial act of prior misconduct was admissible to impeach a “false impression” elicited from appellant on cross-examination.1 In the State’s sole ground for review, the State contends evidence of appellant’s incident with Bobby Kopp-Durkee was admissible as evidence of appellant’s motive.

During the guili/innocence phase of the trial, appellant testified in his own defense. On cross-examination, appellant admitted he *536used illicit drugs.2 Over appellant’s objection, the State introduced evidence about an incident which occurred while appellant was allegedly under the influence of drugs. This incident involved appellant going to the house of a former girlfriend (Bobby Kopp, now Bobby Durkee), undressing, and getting into her bed, which took place without her prior knowledge or consent. Perry Durkee, a friend of appellant and the then-current boyfriend of Bobby Kopp, testified he and appellant had ingested hallucinogenic mushrooms earlier on the day of the incident. Durkee testified that it was his opinion appellant would not have gone to Kopp’s house and gotten into her bed had he not been on drugs.

At one point during the cross-examination of appellant by the State, the following exchange took place:

Q. And you, in particular, Mr. Lopez, that had a change on (sic) your personality when you would be under the influence of those types of mind-altering drugs; isn’t that correct?
A. I’m sure anything would have.
Q. But in regard to you in particular, Mr. Lopez, you had sharp mood swings. In other words, you would be down at one moment and then sky high the next; isn’t that correct?
A. I don’t recall, sir.
Q. You disagree with that?
A. Yes, sir.
Q. Do you agree that when you would be under the influence of let’s say, hallucinogenic mushrooms, for example, doing those with Menefee, at one point you just broke down and started crying and started talking about your brother, your older brother?
A. Yes, that’s possible.
Q. Now, I am not just talking about mood swings, Mr. Lopez. You would behave strangely when you were under the influence of certain drugs, like mushrooms, isn’t that right?
A. I don’t think so, sir.
At this point the State, over appellant’s objection, inquired into the incident involving the ex-girlfriend and appellant.

Appellant contends the court of appeals erred in holding that the evidence of the incident involving his former girlfriend was admissible to impeach the “false impression” created by appellant while testifying on cross-examination, basing his objection on Rule 404.3 Appellant’s contention is incorrect. Appellant testified he did not act strangely while under the influence of drugs, particularly hallucinogenic mushrooms. Evidence of the incident involving appellant’s ex-girlfriend, which other testimony indicated was the result of appellant’s consumption of hallucinogenic mushrooms earlier that day, was admissible for the purpose of rebutting the false impression created by appellant that he did not act strangely while under the influence of hallucinogenic drugs. Rule 404(b) does not bar the admission of evidence of other crimes, wrongs or acts to correct false impressions made by a witness.4

We have held the false impression doctrine is not limited to evidence elicited solely during direct examination of a witness. Martinez v. State, 728 S.W.2d 360 (Tex.Crim.App. 1987). In Martinez, the defendant, on cross-examination, testified falsely that the case *537was his first arrest. This Court held the State was entitled to impeach the defendant with evidence of a prior arrest to correct the false impression made by the defendant while testifying on cross-examination. Martinez, supra, at 361. See also Baxter v. State, 645 S.W.2d 812, 816 (Tex.Crim.App. 1983); Ramirez v. State, 802 S.W.2d 674, 677 (Tex.Crim.App.1990) (false impression doctrine still viable under Rule 607); Delk v. State, 855 S.W.2d 700 (Tex.Crim.App.), cert. denied, 510 U.S. 982, 114 S.Ct. 481, 126 L.Ed.2d 432 (1993).

In the present case, the State merely introduced evidence of the incident with appellant’s ex-girlfriend to counter a false impression created by appellant, by his own testimony, that he did not exhibit strange behavior while under the influence of hallucinogenic drugs. Relying on this Court’s prior rulings on this issue, the court of appeals correctly overruled appellant’s point of error (our ground for review number one). Accordingly, I would affirm the judgment of the court of appeals.

I respectfully dissent.

WHITE, J., joins.

. Because I concur with the Court's disposition of appellant’s second and third grounds for review, I will not recite them here.

. State witness, David Menefee, testified about drag use among a group of friends which included appellant. During redirect, the State asked Menefee about the drags the group took, including marijuana, speed, hallucinogenic mushrooms and LSD. He was also asked if the drags changed anyone. He answered in the affirmative. Appellant testified that he used the drags referred to above, but denied they affected his personality or caused sharp mood swings.

. As there was no evidence appellant was under the influence of drags on the day of the murder, evidence of his behavior while under the influence of drags for the purpose of showing why appellant committed the murder would have been excludable as irrelevant or as character conformity evidence. [Tex.R.Crim.Ev. 402 or 404(a), respectively.] Additionally, this evidence was not admissible to show motive (there being no evidence appellant was under the influence of drags at the time of the offense) and was thus inadmissible to show same. Therefore, the State’s ground for review is correctly overruled by the Court.

.Appellant would have been entitled to a Rule 105(a) jury instruction to consider this evidence only for impeachment purposes; appellant did not request any such instruction.