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720 S.W.2d 147

Arce v. State

Court of Appeals of Texas

Decided September 24, 1986

Court of Appeals of Texas · decided 1986-09-24

Cited by 1 later decisions — most recently April 1996

1 state decisions

Relies on McManus v. State · Murphy v. State · Ruiz v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1986-09-24

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TIJERINA, Justice,

¶1dissenting.

¶2I respectfully dissent. The majority concedes that the trial court erred in admitting, over objection, an immaterial and collateral matter to impeach a defense wit*150ness. The witness Lopez testified that appellant had worked at the St. Anthony Hotel for a year to a year and one-half. This evidence supported appellant’s defense that he was working at the St. Anthony Hotel at the time of the alleged offense. Sergeant Montalvo, the Custodian of the Records of the Bexar County Sheriffs Department in effect testified as to appellant’s prior conviction by stating to the jury that appellant had been paroled from the Texas Department of Corrections on March 26, 1984. I cannot agree with the majority that this was harmless error.

¶3Under the prevailing rule in this regard, a witness may not be impeached on immaterial or collateral matters. McManus v. State, 591 S.W.2d 505, 524 (Tex.Crim.App.1979) Clifton v. State, 686 S.W.2d 720, 725 (Tex.App. — San Antonio 1985). The state has an onerous burden of proving that the extraneous transaction or prior conviction is relevant to a material issue in the case and that the relevancy value outweighs its inflammatory or prejudicial effect. Ruiz v. State, 579 S.W.2d 206 (Tex.Crim.App.1979). In Morrison v. State, 625 S.W.2d 729, 730 (Tex.Crim.App.1981) the court stated, viz:

The State proved two prior convictions at the punishment stage: felony theft over fifty dollars, with punishment at two years; and attempted capital murder, with punishment assessed at twenty years. We are unable to say the erroneous admission of the latter prior conviction could not have contributed to the assessment of punishment at thirty years in this case. The error is not harmless. (Emphasis added).

¶4Id at 730. In this case the prejudicial effect of evidence of the extraneous offense far outweighed its probative value. There is no relevancy or relationship between proof of the extraneous offense and the state burden to prove the essential elements of the offense for which appellant was on trial. Also see Murphy v. State, 587 S.W.2d 718, 722 (Tex.Crim.App.1979). Accordingly, I would reverse and remand.

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