¶1dissenting in part and concurring in part.
¶2I dissent to that part of the majority opinion on the State’s motion for rehearing which found that the State should be permitted to elicit testimony regarding a prior trial as set forth in appellant’s ground of error number two.
¶3The testimony is correctly set forth in the majority opinion, but the conclusion reached in that opinion cannot be justified on the basis of the testimony in the record. The statement of appellant does not fall within the exception set forth in Ochoa v. State, 481 S.W.2d 847 (Tex.Crim.App.1972). Even taken out of context, it was not a statement which inferred exemplary conduct or implied that Prescott had never been in trouble before. It at most showed an ignorance of the legal procedures involved in taking a witness’ statement.
¶4Most damaging to the State’s position is a statement made by the prosecutor during the hearing outside the presence of the jury, where he stated:
MR. BAYS: Your Honor, we feel like the statement and context in which it was made was intended to tell the jury or convey to the jury this witness’s naivete regarding the criminal justice system, and that certainly is not the case. [Emphasis added.]
¶5I believe that the district attorney’s summation of the event was not correct; appellant is naive, but merely as to his attorney’s procedure for taking statements that are later used in the criminal justice system and this does not fall within the exception outlined by the Court of Criminal Appeals. The State would have us stretch this exception much too far in order to bring Prescott’s statement within that exception. The State agrees that the rule in Ochoais controlling here.
¶6In their motion for rehearing, the State now maintains that the appellant may not have intended to mislead the jury, but the impression the jury is left with after the testimony is the controlling issue. In support thereof, the State presents three cases.
¶7While I do not disagree with the State’s “misinterpretation theory”, it is misapplied to the instant case. To apply that theory to the instant case would require us to *700engage in an after-the-fact intrusion into the minds of the jury.
¶8In Whittle v. State, 179 S.W.2d 569 (Tex. Crim.App.1944), the defendant testified that he had only been convicted of four offenses and the State was permitted to correct defendant’s testimony by asking him if he had also been previously convicted of four other offenses in the State of Oklahoma. After this question was asked, the defendant promptly recanted his prior testimony and agreed he had eight previous convictions. Id. at 573.
¶9In Thomas v. State, 530 S.W.2d 834 (Tex. Crim.App.1975), the defendant was convicted of robbery by firearms and testified as to his qualifications for a probated sentence by telling the jury the following in answer to his attorney’s question:
Q Is there anything else that you can think of that you might tell this jury that would give effect to this request for probation?
A Yes. There is something I would like to add, that I’ve never been in any type of trouble like this. And its been a great mental strain on me for these past two years, for the simple reason that I have to live with myself constantly. [Emphasis supplied.]
¶11On cross-examination the State examined the appellant concerning his prior criminal conduct and asked him if he knew he had been identified as having committed a robbery by assault on another date, to which appellant replied in the affirmative. Id. at 837.
¶12Reed v. State, 644 S.W.2d 494 (Tex.App.—Corpus Christi 1982, pet. ref’d) is another case where the defendant mentioned part of his past criminal history which began as a young boy and failed to mention more recent and serious arrests. As in the other cases, the State in Reedwas permitted to question the defendant about omitted offenses.
¶13These three cases relied upon by the State are clearly distinguishable from the instant case on their facts. There can be no question that each of the three defendants above should have known enough about their prior arrests or convictions to present accurate testimony. In each case the testimony was a clear distortion of fact to obtain a less severe punishment.
¶14Here, appellant’s response to his attorney’s question failed to establish that he was familiar with the art of law practice and in the absence of other proof the State has read too much into the question and appellant’s response.
¶15I would sustain appellant’s second ground of error and remand this case to the trial court for a new trial.