Crawford v. State, 44850
| Citation | 480 S.W.2d 724 |
| Decision Date | 03 May 1972 |
| Docket Number | No. 44850,44850 |
| Parties | Lawrence Lee CRAWFORD, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Robert M. Jones, Dallas, for Lawrence Lee Crawford, Jr.
Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
DALLY, Commissioner.
The conviction is for robbery by assault; the punishment, sixty years imprisonment.
The appellant was jointly indicted and tried for this offense with Charles Edward Moore. The sufficiency of the evidence is not challenged by the appellant; the facts stated in the companion case of Moore v. State, 480 S.W.2d 728 (1972) are sufficient for the purpose of this opinion and will not be restated here.
The appellant's first contention is that 'The trial court erred in overruling appellant's motion for mistrial after improper reputation testimony was produced by the prosecutor.'
At the punishment phase of the trial provided for by Article 37.07, Vernon's Ann.C.C.P., two police officers, whose testimony was offered by the State, testified that the appellant's reputation in the community as a peaceful and law-abiding citizen was bad.
The appellant's ground of error raises a question of trial procedure as to the Method of testing how a character witness acquired knowledge as to the defendant's bad reputation and whether he was qualified to express such an opinion.
Prior to the commencement of the hearing on punishment, appellant's counsel stated to the court that he thought the prosecutor would offer the testimony of two police officers as to the reputation of the appellant. Counsel requested a hearing out of the presence of the jury to test the qualifications of the officers before they testified. The trial court refused, stating that there was no basis for such procedure and invited counsel to come into his office. If any discussion on this matter was had in chambers it is not recorded. Immediately after coming back into the courtroom, appellant's counsel renewed his motion and it was overruled.
The State immediately called an officer to the stand. He testified to fourteen years service with the Dallas Police Department; stated that he had known the appellant approximately seven or eight months and identified him before the jury. The officer said that he knew the general reputation of the appellant in the community in which he lived for being a peaceful and law-abiding citizen.
At this point appellant's counsel renewed his request for voir dire examination of the witness outside the presence of the jury. The court overruled his motion. Defense counsel then requested that he be permitted to voir dire the witness in the presence of the jury to test his qualifications. The court stated that counsel would have an opportunity to cross-examine and the witness was permitted to then answer that the appellant's reputation was bad.
On cross-examination the witness testified that he had discussed the appellant with the prosecutor and the investigator and that this was the sum and total of the discussions he had had; that his discussions had occurred on the previous morning. On redirect examination, he stated that he had talked to other persons concerning the appellant during the six or seven months he had known the appellant. He was not interrogated to determine the names of the other persons with whom he had discussed appellant's reputation.
The same procedure with appellant's objections being made was followed when Officer Holbrook testified and was cross-examined with substantially the same results as the first officer. This officer had known the appellant for over two years. He said he had had discussions concerning the appellant with two or three people in 1968. The appellant's counsel did not determine who the people were but elicited testimony that the discussions were concerned with specific acts attributed to the appellant.
The appellant then testified in his own behalf. After his testimony there was a discussion between the court and counsel out of the hearing of the jury and the court reporter. Then, before reading the charge to the jury, the court stated to the jury that he had decided to withdraw the evidence from their consideration and instructed them not to consider nor discuss that evidence which had been admitted on the hearing on punishment with regard to the general reputation of the accused for being a peaceful and law-abiding citizen. The appellant's counsel immediately moved for mistrial on the grounds that the instruction could not cure the error caused in permitting the officers to testify. The motion for mistrial was overruled.
The failure of the trial court to permit appellant's counsel to test the qualifications of the character witnesses to express their opinion as to the appellant's reputation before they testified was error. Coleman v. State, 82 Tex.Cr.R. 332, 199 S.W. 473 (1917). Presiding Judge Davidson, in Coleman v. State, Supra, discussed at some length the proper method for testing a character witness's qualifications for testifying as to the reputation of a defendant. The procedure to be followed is to permit the opposing party to test the qualification of the witness before he testifies as to the defendant's reputation. It was pointed out that if the witness is permitted to first give his opinion and it is then determined that he was not qualified to give such opinion, harm which cannot be cured may be done.
Although the proper procedure to have been followed was that requested by appellant's attorney, we have concluded that the record does not reflect reversible error. The appellant's cross-examination of each of the officers reveals that they had had some discussion with other people concerning the appellant's reputation for being a peaceful and law-abiding citizen. The appellant places emphasis upon the fact that the...
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