Mehaffey v. State, A14-81-370-CR

• Decision Date: 12 August 1982
• Docket Number: No. A14-81-370-CR,A14-81-370-CR
• Parties: Catherine MEHAFFEY, Appellant, v. STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 851

650 S.W.2d 851

Catherine MEHAFFEY, Appellant, v. STATE of Texas, Appellee.

No. A14-81-370-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Aug. 12, 1982.

Will Gray, Houston, for appellant.

Ray Elvin Speece, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and JUNELL and PRICE, JJ.

OPINION

PRICE, Justice.

This is an appeal from a conviction for attempted murder. Trial was to a jury who found the appellant guilty and assessed her punishment at ten years incarceration. Appellant does not contest the sufficiency of the evidence. Appellant asserts two grounds of error relating to the admissibility of evidence on the reputation of the complainant for truth and veracity, and the admissibility of the conclusion or opinion of a police officer on conflicting statements of appellant made while under arrest. We sustain both grounds of error urged by appellant and accordingly reverse and remand.

In ground of error number one appellant asserts that the trial court erred in permitting the State to present testimony that the complainant's reputation for truth and veracity was good when he had not been impeached and neither his character nor his reputation for truth and veracity had been placed in issue by appellant. In the instant case both the State and appellant agree that the crucial issue is the interpretation of the evidence, namely whether the complainant was impeached by appellant on the basis of a prior inconsistent statement, since they do not dispute or argue the rule for admitting such testimony. The general rule for admitting evidence of one's reputation for truth and veracity is that such is inadmissible when the evidence that antedates it is merely contradictory. Stewart v. State, 587 S.W.2d 148 (Tex.Cr.App.1979) The rule is clearly stated in Wallace v. State, 501 S.W.2d 883 (Tex.Cr.App.1973):

In Matthews v. State, 80 Tex.Cr.R. 177, 189 S.W. 491, this Court, in sustaining the trial court's refusal to permit defendant to prove by two witnesses his good reputation for truth and veracity, said: "The rule is well established that, if the State had attacked his general reputation for truth and veracity by any witness, or had attempted to impeach him by proving contradictory statements, then he would have been permitted to have introduced such proof; but, until such contingency arises, the fact that he gives testimony disputing that offered by the State would make no such testimony admissible." [Citations omitted]

However, where a witness has been impeached by a prior inconsistent statement or his character trait or reputation has been placed in issue, evidence as to his reputation in a community for truth and veracity is admissible. Stewart v. State, supra at 154.

In the instant case the State offered the testimony of seven witnesses that the complainant's reputation for truth and veracity was good. Appellant timely objected to this testimony on the basis that no evidence was before the court except contradictory evidence and therefore, it was impermissible to bolster the testimony of the witness by proof of his good reputation for truth and veracity. At trial the State contended the good reputation evidence was admissible because the complainant's credibility and character had been attacked: "... The State's position is the defendant herself by her own testimony called the defendant a liar, a fool, and that he was crazy." On appeal, the State concedes that nothing in the record reflects that Ms. Mehaffey did in fact call the complainant a liar. Ms. Mehaffey did testify that some members of the news media said that complainant was a "fool" because he played in the press room secret recorded conversations with Ms. Mehaffey. The record also reflects that Ms. Mehaffey did depict the appellant as "crazy." The circumstances of such depictions are discussed later in the opinion.

On appeal, however, the State relies principally on the theory that evidence of the good reputation of a witness for truth and veracity is admissible where the witness has been impeached by a prior inconsistent statement. The State points to three areas to demonstrate the alleged impeachment of the complainant by prior inconsistent statements, none of which is valid in our opinion. The first of these involves a diagram drawn by the complainant to show his path of escape from his assailant. Appellant had testified that the complainant had a .22 pistol with which he threatened to kill her before she shot him. The State contends that appellant implied in her cross-examination of the complainant regarding the diagram that the complainant was currently fabricating his testimony with reference to his path of flight from appellant's house after he had been shot so as to remove any possibility of his having been near the location where a .22 pistol was recovered in a gutter. The State contends that appellant inferred that the complainant had testified differently on the point in a previous trial merely by the nature of the appellant's questions about his previous testimony. The testimony the State relies on to show impeachment of complainant through a prior inconsistent statement is as follows:

MR. SKELTON: One item I noticed from the trial Q: Last time, you drew a diagram, correct, of where you ran? Is that true?

MR. TAYLOR:

A: Yes.

Q: I believe your testimony was at the previous hearing that you ran down the side of the street, is that correct?

A: I believe my testimony was that I don't recall whether I ran down the side or down the street. I think at one point I was running down the side and at one point the street.

Q: As a matter of fact, you also know--do you know there were several guns in your area? Is that correct?

A: Only I heard that.

Q: You know that from the previous hearing?

A: I heard it. I wasn't there.

Q: Did you notice certain guns were recovered from the gutter?

A: Yes.

Q: Did you also know with the certain guns recovered from the gutter they found some items of red thread? Is that correct?

A: I have been told that.

Q: Red thread like red on your pants? Isn't that correct?

A: I have no idea.

Q: They are red pants?

A: Yes.

Q: And, you conveniently drew your pathway away from one of the guns recovered that contained some red particles?

A: I don't think I conveniently drew my pathway away from anything up there.

Q: At least from your drawing, they are well away from the gutter, isn't that correct?

A: The drawing is not too far away from the gutter.

* * *

Q: I noticed when you drew your flight, it was well away from the gutter.

A: I had no concentration at all on the gutter when I was drawing the flight.

Q: You know from a previous hearing there was a .22 pistol recovered in that gutter?

A: I don't know.

Q: One thing we can agree on, when you drew your line showing where you ran, it's not near the gutter? Correct? We can agree on that?

A: It's closer to the gutter than some other things.

Q: But, it pretty well away from the gutter written on diagram? Isn't that correct?

A: That's where I ran, somewhere in that vicinity, down the street or sidewalk ... somewhere around there.

The State did not present evidence to prove what the complainant's testimony had been at the previous trial. Nor did they introduce evidence to prove his testimony was different or inconsistent in any manner with the above quoted testimony. An "implication of a contention" or an "inference" does not constitute the making of a prior inconsistent statement. The mere asking of the question, particularly the one emphasized by the State as quoted above, does not establish that a prior inconsistent statement was in fact made by the complainant. We do not believe the above quoted testimony and emphasized question shows impeachment by a prior inconsistent statement.

Secondly, the State contends that appellant's counsel again impeached the complainant with testimony given on a prior occasion concerning whether he heard another shot as he lay on the ground in front of appellant's house:

MR. SKELTON:

Q: Mr. Taylor, did I understand your testimony yesterday when you told this jury about the flight from the house when you fell on the ground that you stayed, that you laid on the ground for a few moments and heard another shot? Is that what you said yesterday?

MR. TAYLOR:

A: Yes.

Q: And you distinctly remember hearing one other shot outside the house when when you layed on the ground, is that correct?

A: I believe I heard another shot.

Q: My question is, I think when you told the jury yesterday you said you distinctly heard the shot. Now you are saying you think you heard?

A: I heard that all night long after that.

Q: When you were lying on the ground outside the house--I will repeat the question. You told the jury yesterday you heard another shot. Did you hear a shot or did you think you heard a shot?

A: I think I told them I thought I heard another shot.

Q: Your testimony is today you think you heard another shot, is that correct?

A: True.

Q: You cannot be positive of that, can you?

A: I don't know how positive I can be. I heard something that directed my attention and made me realize Catherine was coming out of the house. I believe it was a shot.

Q: Do you recall testifying back at the previous hearing of this case?

A: Yes.

Q: Do you recall this testimony? Let me direct you to line twenty-four through twenty-five and on the following page.

* * *

A: Yes, I have read it.

Q: And what did you say back in that previous hearing with reference to the shots?

A: For some reason, I became aware she had come out of the house after me. I can't remember now whether I heard another shot. For some reason I learned she was coming out of the house. I took off again running down the street.

Q: That's substantially the same thing as your testimony is today, correct?

A: And yesterday.

Q: Yesterday, if I recall correctly, you said you distinctly heard another shot or I heard another shot?

A: You may be mistaken....