Henderson v. State

• Decision Date: 24 June 1981
• Docket Number: No. 60813,No. 2,60813,2
• Citation: 617 S.W.2d 697
• Parties: Michael HENDERSON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 697

617 S.W.2d 697

Michael HENDERSON, Appellant, v. The STATE of Texas, Appellee.

No. 60813.

Court of Criminal Appeals of Texas, Panel No. 2.

June 24, 1981.

Allan K. Butcher, Fort Worth, for appellant.

Tim Curry, Dist. Atty., William Kane and George Mackey, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and TOM G. DAVIS and CLINTON, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for robbery. After finding appellant guilty, the jury assessed punishment at five years.

Appellant was convicted of having robbed Edna Hancock in the parking lot of a K-Mart store in Arlington on December 13, 1977. Hancock was pushed to the pavement on the parking lot. She suffered a compound fracture of the left arm and several of her teeth were knocked out.

In his first ground of error, appellant contends the court's charge to the jury in the guilt or innocence phase is fundamentally defective. Specifically, he points to the definitional portion of the charge in which the term "bodily injury" was defined to include death. This matter is raised for the first time in this appeal.

Where there is no objection to the charge at trial, only fundamental error will be considered on appeal. York v. State, 566 S.W.2d 936 (Tex.Cr.App.). The definition of "bodily injury" in V.T.C.A. Penal Code, Sec. 1.07(a)(7), does not include death. In Cumbie v. State (Tex.Cr.App.), 578 S.W.2d 732, it was held that the addition of the term "or death" in the court's charge while the indictment alleged "bodily injury," did not present fundamental error. Under our holding in Cumbie, no fundamental error is present in the instant case. Appellant's first ground of error is overruled.

In his second ground of error, appellant contends the court erred in allowing the prosecutor to ask appellant five improper questions. He maintains the questions were improper because the prosecutor went into "collateral deeds of misconduct."

As to three of the allegedly improper questions, there was no objection at trial and consequently nothing is presented for review. Sanchez v. State, 589 S.W.2d 422 (Tex.Cr.App.); Cannon v. State, 574 S.W.2d 71 (Tex.Cr.App.). Appellant's failure to request any further relief after his objection to one of the questions was sustained, preserves nothing for review. Smith v. State, 547 S.W.2d 6 (Tex.Cr.App.); Graham v. State, 546 S.W.2d 605 (Tex.Cr.App.). With regard to the fifth question complained of, the record reflects that during cross-examination, the prosecutor asked appellant the following question:

"Q. You don't recall. Okay, sir, in October of 1977, did you fail to attend on the 27th, 11th, 12th, 13th, 14th, 18th, 19th, 21st, 24th, 27th, 28th days of that month?

"A. Are you saying that I'm not in school or are you saying that I did not attend school?

"MR. TURNER: Your Honor, I'm going to object to these kind of questions. I don't think it's relevant."

An objection to the admission of evidence must be specific and must state the grounds of the objection, failing which, the objection will not be considered on appeal. Vela v. State, 516 S.W.2d 176 (Tex.Cr.App.). In Wilson v. State, 541 S.W.2d 174 (Tex.Cr.App.), the following objection was found to be too general to preserve an alleged error for review: "Objection, Your Honor, I can't see the relevancy of this line of questioning in this case ..."

In this appeal, appellant urges the above question was an improper attempt to impeach with "collateral deeds of misconduct," namely, truancy. We find that appellant's objection at trial was too general to inform the court of the basis of the objection and thus preserves nothing for review. Appellant's second ground of error is overruled.

In his fourth ground of error, appellant contends the court erred in overruling his objection to an improper question. The question was asked in the cross-examination of one of appellant's reputation witnesses at the punishment phase. Appellant maintains the question was improper because it constituted an improper assertion of fact.

During the punishment phase, appellant called as a witness Reverend L. B. Adams. The witness testified that appellant's reputation for being a peaceful and law-abiding citizen was good. On cross-examination, the prosecutor asked Adams the following questions of which appellant now complains:

"Q. Sir, do you know anything about the crime which he has been convicted of in this courtroom?

"A. No more than what I read in the paper.

"Q. Did you know that he mugged a seventy-five year old lady out in the parking lot?

"A. No more than what I read in the paper.

"MR. TURNER: Your Honor, I'm going to object to Mr. Mackey using the particular offense that we are on trial for on the the basis of have you heard questions on this character witness.

"THE COURT: I will overrule the objection to the last question."

In cross-examining a reputation witness, the State is permitted to ask such witness if he has heard of a specific act of misconduct of the defendant. Pemberton v. State, 601 S.W.2d 333 (Tex.Cr.App.). However the question is not to be framed so as to imply that the act has actually been committed an assertion of truth of the matter. Pemberton v. State, supra; Moffett v. State, 555 S.W.2d 437 (Tex.Cr.App.).

At trial, appellant objected to the specific act referred to within the questions asked of Adams. He did not object that the question was improper as framed, namely, implying that the act had actually been committed an assertion of the truth of the matter. Thus, the contention presented in this ground of error does not comport with the objection voiced at trial. Nothing is presented for review. See Nelson v. State, 607 S.W.2d 554 (Tex.Cr.App.); Simpkins v. State, 590 S.W.2d 129 (Tex.Cr.App.).

In this third ground of error, appellant further complains of the questions quoted above which were asked of Adams on cross-examination. Appellant maintains the court erred in overruling his objection to the questions. He contends the questions asked of the reputation witness on cross-examination were improper because they were based upon the offense for which he was being tried. As noted above, Adams was called as a witness by appellant during the punishment phase.

In Wright v. State, 491 S.W.2d 936 (Tex.Cr.App.), the Court held that it is improper to test the knowledge of a witness who has testified to the good reputation of a defendant for being a peaceable, law-abiding citizen by asking "have you heard" questions concerning the alleged offense for which he is being tried. Although the question of the reputation witness in Wright was improper, no reversible error was shown and the Court stated "... the answer of the witness does not reflect what effect the robbery offense referred to in the question had upon the appellant's reputation." Id. at 938.

In King v. State, 133 Tex.Cr.R. 496, 113 S.W.2d 181, the defendant had been convicted of driving while intoxicated and presented on appeal a contention similar to that now raised by appellant. There, it was stated:

"Bill of exception No. 3 reveals that appellant had used as a witness one Rutland, who had testified that appellant's reputation as a peaceable, law-abiding citizen was good, after which the county attorney asked the witness upon cross-examination if his evidence had not related to a time prior to the incident for which appellant was being tried, to which the witness answered yes, and the county attorney asked if witness had not heard quite a bit of discussion as to his reputation since that time. Appellant's objection was overruled. The court appends to said bill of exception the questions and answers of the witness at this point which shows that after the court had overruled appellant's objection the county attorney then said to witness, 'And it (his reputation) hasn't all been good by any means?' to which witness answered, 'Well, I have heard a lot since that time.' The state was venturing on dangerous ground in the particulars mentioned, but it appears that the witness did not advise whether what he had heard had been good or bad, and we think the bill fails to reflect error which would call for a reversal." Id. at 181 and 182.

See also Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816; Boone v. State, 149 Tex.Cr.App. 476, 196 S.W.2d 638.

The questions asked of Adams were improper in that they concerned the offense for which appellant was being tried. This Court has held that the asking of an improper question will not result in reversible error unless the question was obviously harmful to the defendant. See Brem v. State, 571 S.W.2d 314 (Tex.Cr.App.); Cavender v. State, 547 S.W.2d 601 (Tex.Cr.App.).

From the record before us, we cannot conclude that appellant was obviously harmed by the improper questions asked of Adams. As in Wright and King, the answer of Adams did not reflect what effect the robbery offense referred to in the question had upon appellant's reputation in the community. No reversible error is shown. Appellant's third ground of error is overruled.

In his fifth ground of error, appellant contends the court's charge on punishment was erroneous in failing to inform the jury of all the conditions of probation which could be imposed in the event that the jury recommended that the sentence be probated. Specifically, appellant maintains the court failed to inform the jury that a condition of probation was that the probationer could be ordered to "pay his fine, if one be assessed, and all court costs whether a fine be assessed or not, in one or several sums, and make restitution or reparation in any sum that the Court shall determine." This contention is presented for the first time in this appeal.

In Flores v. State, 513 S.W.2d 66 (Tex.Cr.App.), the Court was presented with a contention similar to that now raised and stated as follows:

"We cannot agree with appellant's contention. While it is considered good...