Jones v. State
Decision Date | 03 May 1972 |
Docket Number | No. 44695,44695 |
Parties | Roger Byron JONES, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
James P. Finstrom, Dallas, for appellant.
Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., Austin, for the State.
This appeal is from a conviction for the offense of unlawful possession of a narcotic drug, to-wit: marihuana. The punishment was assessed by a jury at 35 years.
Appellant contends that reversible error was committed when three nude photographs of him were admitted into evidence. over objection, during the punishment stage of the trial.
State's Witness Robert B. Patterson, a Dallas police officer, testified at the punishment hearing that appellant's reputation was bad. He was then shown the photographs in question and identified them as being photographs of the appellant taken during a downtown parade in Dallas. These exhibits show the appellant walking in front of the parade and show him to be completely nude. The witness testified that he was present at the parade and saw the appellant at the time.
The state contends the exhibits were admissible at the punishment stage of the trial to show character. Sec Article 37.07, Sec. 3(a), Vernon's Ann.C.C.P.
This court has consistently held that specific acts of misconduct to evidence a person's bad character may not be used except where they are in the form of conviction for other crimes. e.g. Webber v. State, Tex.Cr.App., 472 S.W.2d 136. There is no evidence in the record that appellant was convicted of an offense from his performance in the parade. Even if he had been charged but not yet convicted with such an offense, evidence that such charge had been filed could not properly be admitted.
Webber v. State, supra; Garcia v. State, Tex.Cr.App., 454 S.W.2d 400.
Witnesses testifying as to the good reputation of a defendant may be asked on cross-examination whether they have heard of acts of misconduct on the part of the accused for the purpose of testing the credibility of their testimony. But even here, the prosecution may not show any personal knowledge the witness has about specific acts or conduct of the defendant. 1 e.g. Billingsley v. State, Tex.Cr.App., 473 S.W.2d 501. Surely, the prosecution should not be allowed to go further in direct examination of the state's own character witnesses than is permitted on cross-examination of a character witness for the defense.
In Leverett v. State, Tex.Cr.App., 455 S.W.2d 312, the defendant was convicted for assault to murder with malice and made application for probation. She testified in her own behalf and on cross-examination the state introduced, over objection, two letters. One she had written to her mother and another she had written to her brother and both showed specific bad character traits. This court held that the letters were of such a harmful nature and prejudicial to the defendant's rights that their discrediting effect could not be cured by limiting instruction in the court's charge and state at page 315:
(Emphasis supplied.)
In Lewellen v. State, 172 Tex.Cr.R. 622, 361 S.W.2d 880, the defendant was convicted of driving a motor vehicle on a public highway while intoxicated. A character witness for the defendant was asked on cross-examination if he did not know that the defendant had been convicted for being drunk in a public place just a week before he was charged with the offense for which he was on trial. This court, in reversing the conviction, stated:
In Houghton v. State, 171 Tex.Cr.R. 91, 345 S.W.2d 535, character witnesses were cross-examined over appellant's objection concerning specific acts of misconduct and of their knowledge both concerning drinking habits and about specific occasions when such witnesses had drunk whiskey with the defendant. In reversing the conviction this court stated:
'This court has emphatically stated that a defendant in any criminal case shall not be tried before a jury for collateral matters, for the reason that it is against policy as well as being prejudicial. Furthermore, the witnesses are usually not in position to deny the truthfulness of charges included in the questions.
'In Simons v. State, 139 Tex.Cr.R. 212, 139 S.W.2d 119, 120, we said:
'In Adaire v. State, 119 Tex.Cr.R. 381, 45 S.W.2d 984, 986, this court, speaking through Judge Christian, stated: '. . . it is not permissible, on cross-examination of a witness to the good character of the accused, to show by the witness what he knows individually about specific or particular acts of misconduct on the part of the accused. . . .'
'Reference is also made, here, to the cases of Shipley v. State, 131 Tex.Cr.R. 527, 100 S.W.2d 704, and Adams v. State, 158 Tex.Cr.R. 306, 255 S.W.2d 513, 515. In the latter case, Woodley, judge, this court said: 'It is not . . . permissible to show by the witness what he knows individually about specific acts of misconduct of the defendant; the inquiry being limited to whether or not the witness may have heard of such unlawful act.'
In Parrish v. State, 163 Tex.Cr.R. 252, 290 S.W.2d 245, this court reversed a murder conviction wherein a character witness was asked if he knew that on or about a specific date the defendant was arrested in Tennessee for investigation of a burglary in Ohio or Kentucky. Therein this court stated:
'We think the asking of the question in the form in which it was propounded constituted reversible error.
'The vice in the form of the question which inquires of the witness as to whether he knows of specific acts of misconduct is that it asserts as a fact that the accused has committed the acts which the state is...
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