            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-1263-08



                   RODGER EUGENE MANSFIELD, JR., Appellant

                                                 v.

                                   THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
              FROM THE FOURTEENTH COURT OF APPEALS
                          HARRIS COUNTY

            K ELLER, P.J., delivered the opinion of the Court in which M EYERS,
W OMACK, K EASLER, H ERVEY, and H OLCOMB, JJ., joined. J OHNSON, J., filed a
concurring opinion in which P RICE and C OCHRAN, JJ., joined.

       The trial court refused to allow defense counsel to ask appellant’s father if appellant had ever

been placed on felony probation. Appellant subsequently took the stand to testify that he had not

been placed on felony probation before. He was impeached by the State with evidence of extraneous

bad acts, and he was asked whether he accepted the jury verdict of guilt, to which he responded,

“No.” The jury sentenced him to 20 years. The Court of Appeals rejected appellant’s complaint on

appeal, holding that the father’s proffered testimony was inadmissible due to lack of personal
                                                                                    MANSFIELD – 2

knowledge.1

        We granted appellant’s petition to address whether the court of appeals’s holding was correct,

but in its brief on discretionary review, the State points out a wrinkle in the case: Appellant’s father

testified, without objection, that appellant had never been convicted of a felony. The following

occurred:

        Q. Sir, how long have you known your son?

        A. His whole life.

        Q. Okay. Has your son been convicted of any felonies in this or any other state?

        A. No.

        Q. Has your son been on felony probation?

        [PROSECUTOR]: Objection, Your Honor, outside personal knowledge.

        THE COURT: Sustained.

        Q. Are you familiar with your son’s criminal record?

        A. Yes.

        Q. Has he received probation, felony probation in this or any other state?

        [PROSECUTOR]: Objection, Your Honor, outside personal knowledge.

        THE COURT: Sustained.

        [DEFENSE COUNSEL]: May we approach the bench?

        THE COURT: Yes.

        (At the Bench, on the record)



       1
          Mansfield v. State, 2008 WL 2884638, 3-5 (Tex. App.–Houston [14th Dist] July
29)(not designated for publication).
                                                                                   MANSFIELD – 3

       [DEFENSE COUNSEL]: I don’t understand why he can’t testify, Your Honor.

       THE COURT: He doesn’t live with him the whole time, he hasn’t been with him the
       whole time.

       [DEFENSE COUNSEL]: It goes to the weight, Your Honor, not the credibility.

       THE COURT: I sustained the objection.

       [DEFENSE COUNSEL]: Yes, sir.

       (Open court, defendant and jury present)

       Q. Mr. Mansfield, are you asking this jury to put your son on probation?

       A. Yes.2

       The State contends that appellant did not need to testify because his father’s testimony

“constituted sufficient evidence demonstrating appellant’s eligibility for probation pursuant to

Article 42.12, Section 4, of the Texas Code of Criminal Procedure.” The State argues that Section

4 “does not expressly or implicitly require that a defendant file a sworn motion that he has not

previously been placed on community supervision in this or any other state” nor does it require “that

a defendant present evidence” to that effect. The State concludes that appellant “had no burden to

plead and prove he had not previously been placed on community supervision.”

       What appellant had to plead and prove was that he had never been convicted of a felony.3

Caselaw confirms that a conviction in which (regular) probation is granted is still a conviction for

this purpose,4 but that does not mean appellant was required to elicit testimony specifically saying


       2
            Emphasis added.
       3
            See TEX . CODE CRIM . PROC. art. 42.12, §4(e); see also art. 37.07, §2(b) & art. 42.12,
§4(d)(3).
       4
            Ex parte Welch, 981 S.W.2d 183, 184 (Tex. Crim. App. 1998).
                                                                                   MANSFIELD – 4

that he had never been on a felony probation. Testimony that he had never been convicted of a

felony would suffice to show that.

        Appellant points to the Harris County form that he filled out and signed that included check

boxes for both having “never been convicted of a felony in this or any other state” and having “never

been placed on community supervision for a felony offense in this or any other state.” It is not clear

that appellant had to use this form. It is, after all, his motion for community supervision.

Regardless, use of the form does not mean that, in order to establish eligibility for probation, he had

to elicit testimony expressly stating that he had never been on community supervision for a felony

offense. The jury charge contained no such requirement. It simply stated that the jury could

recommend community supervision if it found “that the defendant has never before been convicted

of a felony in this or any other state.”

        So, appellant did not have to take the stand to establish his probation eligibility. His father

had already done so by saying that appellant had never been convicted of a felony.5 Appellant could

have declined to testify and relied solely upon the testimony he had successfully elicited from his

father to support the submission of the issue of probation.

        The judgment of the court of appeals is affirmed.


Delivered: March 17, 2010
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        5
            Trevino v. State, 577 S.W.2d 242 (Tex. Crim. App. 1979).
