Lancaster v. State
Decision Date | 14 July 1988 |
Docket Number | No. 05-87-00317-CR,05-87-00317-CR |
Parties | Joe Carlton LANCASTER, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Appeals |
Dorothy H. Shead, Dallas, for appellant.
Yolanda M. Joosten, Dallas, for appellee.
Before DEVANY, STEWART and HECHT, JJ.
A jury convicted Joe Carlton Lancaster of aggravated robbery and sentenced him to life imprisonment. We overrule Lancaster's two points of error and affirm the judgment of the trial court.
Lancaster first complains that the trial court erred in allowing the State to cross-examine his character witness about criminal conduct with which Lancaster was charged but of which he had not yet been convicted. During the punishment phase of his trial, Lancaster called a character witness, Don Richardson, a Mesquite Fire Department captain, who testified that Lancaster was not a violent person and was not a continuing danger to society. On cross-examination, the prosecutor asked Richardson what he knew about four specific incidents of criminal conduct by Lancaster:
Q [By the Prosecutor]: Okay. Now, Mr. Richardson, did you know that on November 14th 1986, in Dallas County the defendant went into a building, a 7-Eleven that was not a portion of building that was open to the public and was caught in the middle of stealing cigarettes from that 7-Eleven on November 14th 1986?
A [By Richardson]: I wasn't aware of it till just now when Miss--told me outside the courtroom.
Lancaster's only objection to this cross-examination, other than the speculation objection noted above, was made prior to the testimony outside the presence of the jury as follows:
[Defense Counsel]: I would like to object to allowing the State to question this witness [Richardson] as to any specific incidents. I do not believe the defense has opened the door to a "do you know" type question in this particular case. And I believe that there is danger of opening the door to extraneous uncharged conduct whose prejudicial effect would outweigh any possible relevancy.
Lancaster now contends that by the questions set out above the prosecutor improperly implied that the incidents inquired about had actually occurred when in reality Lancaster was only charged in the incidents and had not yet been convicted.
Before Texas Rule of Criminal Evidence 405(a), only evidence of reputation was admissible to prove character; personal opinion was not admissible. See, e.g., Green v. State, 679 S.W.2d 516, 517 (Tex.Crim.App.1984); Beecham v. State, 580 S.W.2d 588, 590 (Tex.Crim.App.1979). A character witness could testify only about what he had heard, not about what he knew or opined. See Pemberton v. State, 601 S.W.2d 333, 337 (Tex.Crim.App.1980); Brown v. State, 477 S.W.2d 617, 620 (Tex.Crim.App.1972).
Now, however, under Texas Rule of Criminal Evidence 405(a), a defendant may offer both reputation and opinion evidence of his good character, and character witnesses may be cross-examined as to relevant specific conduct. Inasmuch as a character witness may now testify both as to what he knows and as to what he has heard, it follows, and Lancaster seems to concede, that the witness may, on cross-examination, be asked "do you know" questions as well as "have you heard" questions. See Government of Virgin Islands v. Roldan, 612 F.2d 775, 780 (3rd Cir.1979), cert. denied, 446 U.S. 920, 100 S.Ct. 1857, 64 L.Ed.2d 275 (1980) ( ). Lancaster nevertheless urges that no question is proper which implies that conduct which has only been alleged and not proved has actually occurred.
The right to cross-examine a character witness on specific instances of a defendant's conduct is subject to two limitations: first, there must be some factual basis for the incidents inquired about; and second, those incidents must be relevant to character traits at issue in the trial. See United States v. Nixon, 777 F.2d 958, 970 (5th Cir.1985). The foundation for inquiring into the specific instances of conduct must be laid outside the jury's presence. Id. The first limitation is the basis of Lancaster's complaint. In essence, he argues that the prosecutor failed to show any factual basis for the incidents inquired about.
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