Brown v. State

• Citation: 477 S.W.2d 617
• Decision Date: 16 February 1972
• Docket Number: No. 44488,44488
• Parties: Tommy Lee BROWN, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 617

477 S.W.2d 617

Tommy Lee BROWN, Appellant, v. The STATE of Texas, Appellee.

No. 44488.

Court of Criminal Appeals of Texas.

Feb. 16, 1972.

Rehearing Denied April 5, 1972.

Melvyn Carson Bruder, Dallas (on appeal only), for appellant.

Henry Wade, Dist. Atty., John B. Tolle and Edgar A. Mason, Asst. Dist. Attys., Dallas, and Jim Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for murder with malice. Trial was before a jury, which assessed punishment at life imprisonment.

On the morning of September 26, 1968, the appellant, after having called his wife (the deceased) by telephone, went to her place of employment, a picture framing shop, in the city of Dallas. Upon arriving, he asked to see his wife. She emerged from the rear of the store and the two of them then went back to the rear of the store. A conversation between the two was then overheard by the other employees in the shop. Soon thereafter, the other employees heard three or four shots. The police and an ambulance were called. Upon arriving at the scene, a Dallas police officer found appellant and his wife lying on the floor in the rear of the store. At this time the deceased was still alive, although both she and appellant were suffering from gunshot wounds. At this time appellant stated, 'Oh Bobby, I loved you, but you were trying to take by baby away from me and I killed you. Officer, shoot me, too. You might just as well shoot me, too.' Appellant's wife was taken by ambulance to Parkland Hospital, in Dallas, where she was pronounced 'dead on arrival.' Medical testimony indicated that death was caused by gunshot wounds.

Appellant raises six grounds of error in his brief and three additional grounds in a supplemental brief.

Appellant contends in his first ground of error that the trial court improperly permitted the State to cross-examine one of his character witnesses in regard to prior acts of misconduct and a prior conviction for driving while intoxicated, a crime not involving moral turpitude.

The record reflects that prior to the cross-examination, the witness had testified that appellant's reputation for telling the truth was good and that he had a reputation for being a peaceful person. On cross-examination, the State inquired as to whether the witness had Heard that appellant had, in the past, threatened to kill his wife. The witness was also asked if he had Heard that appellant had beaten his wife, if he had Heard that appellant had been convicted of driving while intoxicated.

The general rule is that, as part of its cross-examination, the State is permitted to ask the character witness if he has heard of a specific act of misconduct. However, the State may not ask whether the witness had personal knowledge of the act, nor may the question be framed so as to imply that the act has actually been committed. ¹ The State, as a prerequisite for asking the question, must have a good faith belief that the act actually occurred. Hart v. State, 447 S.W.2d 944 (Tex.Cr.App.1970); Stewart v. State, 148 Tex.Cr.R. 480, 188 S.W.2d 167 (1945).

That the act of misconduct did not involve moral turpitude is not objectionable. Stewart v. State, 148 Tex.Cr.R. 480, 188 S.W.2d 167 (1945); Williamson v. State, 74 Tex.Cr.R. 289, 167 S.W. 360 (1914). The only requirement is that the act be inconsistent with the character trait about which the witness has testified. See Pace v. State, 398 S.W.2d 123 (Tex.Cr.App.1965).

The rationale behind the rule is that reputation is an opinion based on hearsay. The reputation witness states his opinion based on that which he has heard from others concerning the defendant. In order to test this opinion, the prosecution is allowed to determine whether the witness has Heard (not whether he Knows) of acts or reports which would be inconsistent with a good reputation. The theory is that if the witness is truly familiar with the reputation of the defendant, he will have also heard of adverse reports which are circulating in the community. This is consistent with the nature of reputation evidence, that is, an opinion based on hearsay. Reputation does not concern that which a person Is, but rather, that which he is thought to be. Thus, a question regarding an act of misconduct which, by its very nature, is likely to be a part of the person's reputation in the community, is appropriate as a means of testing the weight or credibility of the witness' opinion. Morton v. State, 460 S.W.2d 917 (Tex.Cr.App.1970); Smith v. State, 411 S.W.2d 548 (Tex.Cr.App.1967); McNaulty v. State, 138 Tex.Cr.R. 317, 135 S.W.2d 987 (1939).

The requirement in this State is that the question be phrased 'have you heard' that the defendant committed a certain act? If the question is phrased 'do you know' or if it is phrased in such a way as to imply that the act was actually committed, then the question is improper. If the witness is asked if he knows that a certain act was committed, and he answers that he does, then he has testified that the act was committed, which would be improper. Ayers v. State, 162 Tex.Cr.R. 586, 288 S.W.2d 511 (1956); Wiley v. State, 153 Tex.Cr.R. 370, 220 S.W.2d 172 (1949); McNaulty v. State, 138 Tex.Cr.R. 317, 135 S.W.2d 987 (1939).

It should be kept in mind that the purpose of the cross-examination is not to discredit the person on whose behalf the witness is testifying, but rather, the purpose is to affect the weight of the witness' testimony. Kennedy v. State, 150 Tex.Cr.R. 215, 200 S.W.2d 400 (1947); Taliaferro v. State,143 Tex.Cr.R. 243, 158 S.W.2d 493 (1942); Thompson v. State, 138 Tex.Cr.R. 491, 136 S.W.2d 840 (1940). Thus, since reputation is based on hearsay, an examination as to whether the witness has heard hearsay inconsistent with his opinion is proper. That the questions are leading is not objectionable, since leading questions are a characteristic of cross-examination. There is, of course, a risk inherent in the case of any leading question: namely, that the jury will consider the content of the question as substantive evidence. Recognizing this risk, this Court, as discussed earlier, has restricted the form the question may take. Also, in light of the danger involved in asking such a question, it would be quite proper for the trial court, if requested, to give a limiting instruction to the jury to the effect that the questions are not to be considered as substantive evidence, and that only the credibility of the witness, and not the credibility of the defendant is being called into question.

In the instant case, we see no error. The witness had previously testified as to appellant's good reputation. The prosecutor's questions were phrased 'have you heard' and did not imply that the acts had actually been committed.

In his second ground of error, appellant contends that the trial court improperly limited appellant's inquiry into the character of the deceased, in violation of Articles 1257a and 1258, Vernon's Ann.P.C. The record reflects that appellant called a witness, James Alexander, who testified that he was familiar with the deceased's character. However, he was not allowed to answer as to whether her character was good or bad.

Article 1258, V.A.P.C., provides in part:

'In every instance where proof of threats has been made, it shall be competent to introduce evidence of the general character of the deceased.'

In the instant case, the record is bare as to evidence of any threat made to him by the deceased, nor does the record reflect any evidence that the deceased had done any act which would have justified the killing. In light of the absence of any evidence of threats, Article 1258 is not applicable. Mahaffey v. State, 471 S.W.2d 801 (Tex.Cr.App.1971); see also DeVoyle v. State, 471 S.W.2d 77 (Tex.Cr.App.1971). Likewise, the trial court did not exclude relevant evidence which was admissible under Art. 1257a. Appellant had testified regarding his marital difficulties, and testified that his wife had told him shortly before the shooting, that he was not the father of his youngest child. Appellant contends that evidence of the deceased's character was relevant under Article 1257a, V.A.P.C., and was improperly excluded. The character of the deceased is not relevant unless it explains some act on the part of the deceased which would serve as a defense for the accused. Horbach v. State, 43 Tex. 242 (1875). In the instant case, there is no evidence of any such act. The appellant did not claim self-defense. He contends, however, that since both parties were wounded, that self-defense Might have been the motive for the killing. Unless evidence appeared in the record, this Court cannot and will not supply it by conjecture. Appellant's second ground of error is overruled.

Appellant contends that the trial court erred in admitting 'prejudicial hearsay.' The record reflects that one of the State's witnesses testified that she had, on one occasion, gone to the home of the deceased, and that appellant, prior to her arrival, had beaten the deceased and shot a hole in the ceiling. An objection was made to this testimony. The objection was sustained, and the jury instructed to disregard the testimony about the shooting. Appellant's motion for mistrial was overruled. The witness, later in her testimony, stated that she saw appellant beat the deceased after she arrived. The record reflects that later in the trial, appellant took the stand in his own behalf. On cross-examination, he testified in regard to the occasion, previously mentioned, concerning the shot fired into the ceiling. No objection was taken to this testimony. The appellant's later testimony to the same effect as the hearsay cured the error, if any, e.g., Morales v. State, 466 S.W.2d 293 (Tex.Cr.App.1971); Glenn v. State, 465 S.W.2d 371 (Tex.Cr.App.1971); Arreguin v. State, 463 S.W.2d 729 (Tex.Cr.App.1970); Hoover v. State, 449 S.W.2d 60 (Tex.Cr.App.1969). Appellant's third ground of...