Childs v. State, 45677

• Decision Date: 07 February 1973
• Docket Number: No. 45677,45677
• Citation: Childs v. State, 491 S.W.2d 907 (Tex. Crim. App. 1973)
• Parties: Charles Henry CHILDS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 907

491 S.W.2d 907

Charles Henry CHILDS, Appellant, v.The STATE of Texas, Appellee.

No. 45677.

Court of Criminal Appeals of Texas.

Feb. 7, 1973.

Rehearing Denied April 11, 1973.

Joe C. Shaffer, Houston, for appellant.

Carol Vance, Dist. Atty., James C. Brough and Jack Bodiford, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is robbery; the punishment, twenty-five (25) years.

This is a companion case to Morgan v. State, Tex.Cr.App., 491 S.W.2d 903(1973), this day decided.A recitation of the facts appears in that case.

Ground of error number 1 relates to the testimony of appellant's father at the hearing on punishment.He testified, on direct examination, that he joined with his son in requesting the jury to grant the appellant probation.He further stated that he would keep appellant at his home, employ him and supervise his conduct and assist him in maintaining exemplary conduct.He also testified:

'Q (Defense attorney) . . . And has his conduct been good since he has been there while he has been there at home?

'A (Witness) Really has.'

On cross-examination the witness admitted that the effect of his answers to counsel's questions had been to tell the jury that his son was 'of good character'.He was then asked over appellant's objection if 'he had heard' that his son, the appellant, had been indicted for robbery and for possession of marihuana and was living with a prostitute who was also a heroin addict.

Appellant contends the court erred in permitting the prosecutor to determine whether or not the witness had heard of acts inconsistent with appellant's good reputation when that reputation had not been put in issue on direct examination of the witness.

True, appellant's counsel did not use the 'magic words', does your son have a general reputation of being a peaceful and law abiding citizen in the community in which he resides, in questioning the witness.However, an examination of the record clearly indicates that the entire tenor of the elder Childs' testimony was geared toward persuading the jury to grant appellant probation by showing them his good character and law abiding habits.¹Appellant may not have a witness testify about his good character traits but avoid 'placing his reputation in evidence' simply by not specifically asking whether appellant enjoyed a good reputation in the community.The Court did not err in permitting the cross-examination.

Appellant's second ground of error is that the Court improperly permitted the prosecutor to exhibit a pistol before the jury during trial and during argument which was not admitted in evidence.The record reflects that the prosecutor asked two witnesses whether the pistol he was exhibiting to them was similar to the one used during the commission of the offense.Appellant also perfected a bill of exception to show that the prosecutor exhibited the pistol during argument.

The weapon was not held out to be the one used in the robbery.We conclude, as we did in Ortega v. State, Tex.Cr.App., 462 S.W.2d 296, that, in the absence of bad faith, it is not error to ask a witness whether a particular weapon is similar to one used during the offense.Further, the record reflects the gun was admitted in evidence.

Appellant's third and fourth grounds of error are identical to those raised by his co-defendant, Rubin Lee Morgan, and are disposed of in the appeal of that case.SeeMorgan v. State, supra.

Ground of error number 5 complains of the failure of the court to grant appellant's motion to sever from his co-indictee Morgan.At the hearing on the motion to sever it was shown that neither appellant nor his co-indictee Morgan had previously been convicted of a felony.Therefore,...