Livingston v. State

• Decision Date: 28 March 1979
• Docket Number: No. 1,No. 57632,57632,1
• Citation: 589 S.W.2d 395
• Parties: R. L. LIVINGSTON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 395

589 S.W.2d 395

R. L. LIVINGSTON, Appellant, v. The STATE of Texas, Appellee.

No. 57632.

Court of Criminal Appeals of Texas, Panel No. 1.

March 28, 1979.

Rehearing En Banc Denied Nov. 28, 1979.

Matt Garcia, San Antonio, James S. Vecchio, Grand Prairie, for appellant.

Tim Curry, Dist. Atty., Marvin Collins, L. Tolly Wilson, Greg Pipes and Ronald G. Knight, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

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

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated perjury. V.T.C.A. Penal Code, Sec. 37.03. Punishment, enhanced by one prior conviction, was assessed at 14 years and a $5,000 fine.

The basis of appellant's conviction was his testimony to a Tarrant County grand jury. ¹ This grand jury was investigating several allegations regarding the sexual abuse of children by the appellant. In the course of this investigation, a grand juror asked the appellant, "Have you ever, since you have been here in Fort Forth, Tarrant County, engaged in homosexual conduct, indecency with a child, sexual abuse of a child?" The appellant answered that he had not. After investigating these charges, this grand jury returned no indictments against the appellant.

A later grand jury returned the indictment in the present case, alleging that the appellant had perjured himself in answering the questions set out above. Appellant moved for a change of venue, and the case was transferred to Potter County.

The record reflects that the appellant was director of the Better Influence Association (B.I.A.), a youth organization in Fort Worth funded by the United Way. This organization worked to develop the potentials of children in the black community of Fort Worth. Children were sometimes referred to this organization by both the police and school authorities. Often this referral came after an arrest or some manifestation at school that the child was experiencing problems.

The B.I.A. was made up of a board of directors, the appellant as director, and other employees. The main activities of this association were counseling of children, holding classes such as arts and crafts, music, and dance, and providing a place for the children's recreation.

Appellant was accused of homosexual conduct with two boys who were members of B.I.A. Both boys had lived with appellant. The record reveals that at different times four to six boys would live with appellant at his home. Appellant would provide lodging for boys referred to the B.I.A. if for some reason they had no place to live.

Appellant contends that the trial court erred in allowing the State to cross-examine a defense witness with "have you heard questions" during the guilt stage of the trial. It is the appellant's contention that this witness was not a reputation witness, thus impeachment by this method was improper.

The witness was A. B. O'Connor, a high school principal. After testifying as to his educational background, the witness gave the following testimony on direct examination:

"Q. All right. And in your professional capacity, either as a principal or functioning under any of the degrees that you possess, have you had occasion to work with the Better Influence Association in Fort Worth?

"A. Yes, sir.

"Q. Have you ever referred a problem student to the BIA?

"A. Yes, sir.

"Q. Have you referred more than one?

"A. Yes, sir.

"Q. And can you tell us approximately how many you have referred?

"A. I would say that in our high school over the period of approximately the last seven years, I would say I have called for assistance on at least a hundred.

"Q. And have you received assistance, sir?

"A. I have received excellent assistance, not only in understanding of the problem itself, but the wherewithal of the other areas of studies that I had, I found that the experience from the people I was discussing the problems with, we found better solutions.

"Q. And can you tell us approximately how many times you have had occasion to discuss problem students with R. L. Livingston himself?

"A. Well, I work very closely with Mr. Livingston. I referred to him as Mr. Cool all the time. This was approximately seven years ago.

"At that time, the high school that I was principal of was integrated, and we brought in the 9th Grade, and the situation was rather tense.

"I was not familiar with all of the type of problems

"MR. WILSON (prosecutor): I object to this answer as not responsive.

"THE COURT: Yes. Mr. O'Connor, please just answer the question as it is asked.

"THE WITNESS: I didn't understand, I'm sorry.

"Q. (By Mr. Garcia (defense attorney)): And the high school at which you are presently principal, what is the ethnic make-up of the student body?

"A. Fifty-one percent black, thirty-four percent brown and approximately fourteen point something white.

"MR. GARCIA: Pass the witness."

This is the entire testimony elicited by defense counsel on direct examination.

The jury was removed and the prosecutor was allowed to question the witness as follows:

"Q. (By Mr. Wilson) Mr. O'Connor, would you say that R. L. Livingston is of good character?

"A. Yes, sir, to me, my relationship, sir.

"Q. All right. Now Mr. O'Connor, I would ask you, have you heard

"MR. GARCIA: Your Honor, of course we are objecting to this being presented before jury.

"THE COURT: Yes, I understand."

The State then asked "have you heard questions" regarding a prior conviction in Lubbock County and six homosexual encounters with boys in Tarrant County.

The trial court ruled that the State could ask the "have you heard questions" in front of the jury. The trial court stated:

"THE COURT: Mr. Garcia, I don't intend to preclude you from making an argument. I will tell you, however, that it is the opinion of the Court, whether for right or wrong, that the entire defense has quite properly, I might add, been predicated upon tying together the Better Influence Association and the Defendant as virtually one entity, and the last four witnesses have all testified as to either good character traits on the part of the Defendant, or good character traits on the part of the BIA.

"Therefore, I feel that the law is clear under the Child's Case and the cases which have come out since the Child's Case, that the have-you-heard questions may properly be asked.

"MR. GARCIA: Your Honor, we will respectfully except to the ruling of the Court, and in order to perfect our bill, we would like to call Mr. Wilson to the stand."

The appellant then questioned prosecutor Wilson relative to his good faith in asking the "have you heard" questions.

The State cross-examined witness O'Connor in the presence of the jury, asking:

"BY MR. WILSON:

"Q. Mr. O'Connor, I would ask you, sir, are you telling this jury that R. L. Livingston is of good character?

"A. Yes, sir.

"Q. Mr. O'Connor, have you heard that on the 26th day of October, 1964, in Lubbock County, Texas, this Defendant was convicted of the offense of sodomy with a 15-year-old Mexican boy named ________ and given five years in the State Penitentiary?

"A. No, sir.

"MR. GARCIA: Before you answer that question, just a moment. Your Honor, we are going to object to this question and we are going to object to any other further questions along these lines by Mr. O'Connor by Mr. Wilson, and we would like to have a running objection on all inquiries by Mr. Wilson relative to this.

"THE COURT: All right. Your objection will be overruled, but you may have a running objection.

"MR. GARCIA: Thank you, sir.

"Q. (By Mr. Wilson) Have you heard, Mr. O'Connor, that in 1974, at the home of R. L. Livingston, he put the penis of ________, a Negro boy, in his, R. L. Livingston's mouth?

"A. No."

The State asked other have you heard questions involving homosexual relations with some seven boys. At the end of its cross-examination, the State concluded by asking:

"Q. (By Mr. Wilson) If you had heard all of those things, Mr. O'Connor, would you still tell this jury that R. L. Livingston was of good character?

"A. That calls for a conclusion on my part, and I would have to check it out. But, under the information that I have, the answer would be I would not hesitate.

"MR. WILSON: We have no further questions."

On re-direct, defense counsel asked the witness:

"BY MR. GARCIA:

"Q. Mr. O'Connor, you say that you would not hesitate to say that Mr. Livingston is of good character?

"A. That's correct, sir.

"Q. From the information that you have on him and the work that he has done with you and your school

"A. Yes, sir."

The State first urges that appellant's objections were general and did not preserve the error for our review. The record reveals that the court was on notice and understood the basis of appellant's objections. This is evidenced by the hearing outside the presence of the jury and the court's comments relative to the admissibility of the "have you heard" questions under the "Child's Case." See Daniel v. State, Tex.Cr.App., 550 S.W.2d 72; Williams v. State, Tex.Cr.App., 531 S.W.2d 606; Price v. State, Tex.Cr.App., 460 S.W.2d 420.

In its brief, the State points to the testimony of two other witnesses, in addition to O'Connor, that the State maintains were character witnesses and justified this use of "have you heard" questions. The State urges that:

"Even the trial court noted Appellant's entire defense had been predicated upon tying together the BIA and Appellant as one entity and that several witnesses had testified as to the good character traits of Appellant or the BIA."

The State concludes that this cross-examination was proper as the appellant had placed his character in issue by offering testimony regarding both himself and the B.I.A.

We find the following excerpts from the treatises helpful:

"At this date it should be too well understood to require comment that actual character is distinct from reputation which is merely evidence of character, but even today the term...