By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law

2001 Case Summaries     2000 Case Summaries     1999 Case Summaries

Criminal defendant not entitled to impeach testimony of co-actor with closed juvenile case [Foster v. State] (00-3-26).

On July 26, 2000, the Waco Court of Appeals held that a criminal defendant is not entitled under Davis v. Alaska to place before the jury a closed juvenile case involving a co-actor who testified against the defendant. Such impeachment is prohibited by the Texas Rules of Evidence.

00-3-26. Foster v. State, ___ S.W.3d ___, No. 10-98-247-CR, 2000 WL 1041965, 2000 Tex.App.Lexis ___ (Tex.App.—Waco 7/26/00)[Texas Juvenile Law 232 (4th Edition 1996)].

Facts: Two teenagers, aged 16 and 17, were tired of not having any money. They decided the way to get it was to rob someone. Having set a goal, they took steps to accomplish it. The following day, during the course of committing a robbery, the 17 year old, J.C. Foster, murdered Andrea Cross. He was indicted, tried and convicted of capital murder. Because the death penalty was waived by the State, he was sentenced to life in prison. He brings seven complaints about the validity of the conviction.

Held: Affirmed.

Opinion Text:

In his first issue, Foster complains that the trial court erred in allowing the State to introduce evidence that Alphonso Leatch, the 16 year old juvenile, pled guilty to capital murder. Foster argues that the disposition of Leatch's case is inadmissible because there was no proper purpose for its introduction and because it was being used as proof of Foster's guilt. At trial, the following question, answer and objection occurred:

State: Why are you currently at [the Texas Youth Commission]?
Leatch: I pled guilty to capital murder.
Defense: Objection. Relevance.
Court: Overruled.

After the above testimony was introduced, Leatch testified that he was serving a 40 year determinate sentence and had completed the capital offender's program. Leatch then testified that he and Foster planned robbing someone the night before the murder "for which [he was] currently ..." in the custody of the Texas Youth Commission. Because the same evidence objected to was subsequently admitted without objection, any alleged error, if error at all, was rendered harmless. Purtell v. State, 761 S.W.2d 360, 368 (Tex.Crim.App.1988); Gaines v. State, 789 S.W.2d 926, 929 (Tex.App.--Dallas 1990, no pet.). Foster's first issue is overruled.

In his second issue, Foster contends that the trial court erred in limiting his cross-examination of Leatch concerning his prior juvenile adjudication for the offense of aggravated robbery. The State argues that Rule 609(d) of the Rules of Evidence prohibits the introduction of juvenile adjudications for impeachment purposes. Tex.R. Evid. 609(d). Based on the facts in the record before us, we agree with the State.

Leatch testified that he began taking medication to help him sleep after he was released from the Texas Youth Commission in March of 1997. When Foster's attorney asked why he was in the Texas Youth Commission's custody, the State objected, citing improper impeachment as its reason. The objection was sustained. Outside the presence of the jury, Foster's attorney argued to the trial court that, under the Sixth Amendment of the United States' Constitution, he was entitled to cross-examine Leatch regarding his prior adjudication. The State responded that juvenile adjudications are not admissible for impeachment purposes. Once again, the trial court sustained the State's objection.

Foster was then permitted to perfect a bill of exception outside the presence of the jury. Leatch was asked why he had previously been in the custody of the Texas Youth Commission. He responded that he had been adjudicated for aggravated robbery when he was about 13 or 14 years of age. Leatch testified that the adjudication for aggravated robbery was the only adjudication on his record other than the recent adjudication for capital murder. Leatch also testified that he had no pending charges against him. At the conclusion of this testimony, Foster again urged the trial court to allow him to cross-examine Leatch regarding the prior adjudication. The trial court again sustained the State's objection.

Generally, a witness may be impeached by proof of felony convictions or misdemeanor convictions involving moral turpitude which are final and not too remote in time. Tex.R. Evid. 609; Rivas v. State, 501 S.W.2d 918, 919 (Tex.Crim.App.1973). However, juvenile adjudications do not fall under this general, permissive category of convictions used for impeachment. First, juvenile adjudications are not convictions. Tex. Fam.Code Ann. § 51.13(a) (Vernon Supp.2000). Second, evidence of a juvenile adjudication, outside the realm of a juvenile proceeding, is not admissible for impeachment unless required by the Constitution of the United States or Texas. Tex.R. Evid. 609(d).

Of course, the constitutional right to cross-examination, in a limited sense, may require a juvenile adjudication to be admitted. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. The Court of Criminal Appeals has held that a pending juvenile charge may be admissible on cross-examination to show the motive or bias of the witness to testify favorably for the State. Carmona v. State, 698 S.W.2d 100, 102 (Tex.Crim.App.1985)(emphasis added); Harris v. State, 642 S.W.2d 471, 476 (Tex.Crim.App.1982); see also Carroll v. State, 916 S.W.2d 494, 499-500 (Tex.Crim.App.1996). The U.S. Supreme Court has held that a defendant is permitted to cross-examine a crucial witness regarding his juvenile record for the limited purpose of showing bias where the witness was on probation for the juvenile crime while assisting the police and testifying in court. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974). But, it is clear that defendants are not permitted to cross-examine a witness regarding prior juvenile adjudications for general character impeachment purposes. Id. at 1112 (Stewart, J., concurring); Warren v. State, 514 S.W.2d 458, 465 (Tex.Crim.App.1974); Gilmore v. State, 871 S.W.2d 848, 851 (Tex.App.--Houston [14th Dist.] 1994, no pet.).

Foster relies heavily on the U.S. Supreme Court decision in Davis to argue that he should have been allowed to cross-examine Leatch about his prior adjudication for aggravated robbery. Based on the record before us, Davis does not apply. The "pending charge" exception to Rule 609 is not available to Foster either. The record does not show that Leatch had any charges pending against him. Foster made no showing that because of his previous adjudication, Leatch would have some bias or prejudice to testify favorably for the State. It appears from the record that the only reason for the inquiry into Leatch's prior adjudication was for general impeachment purposes. Thus, the trial court did not err in refusing to allow Foster to question Leatch about his prior juvenile adjudication. His second issue is overruled.

2001 Case Summaries     2000 Case Summaries     1999 Case Summaries