Mitchell v. State, No. 49459

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: ROBERTS; ONION
• Citation: 524 S.W.2d 510
• Parties: Jimmy Ray MITCHELL, Appellant, v. The STATE of Texas, Appellee.
• Docket Number: No. 49459
• Decision Date: 25 June 1975

Page 510

524 S.W.2d 510 Jimmy Ray MITCHELL, Appellant,
v.
The STATE of Texas, Appellee. No. 49459. Court of Criminal Appeals of Texas. June 25, 1975.
Rehearing Denied July 9, 1975.

Marvin Collins & Bill R. Magnussen, Fort Worth, for appellant.

Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

Page 512

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for murder with malice wherein the jury assessed appellant's punishment at 100 years' confinement.

The evidence showed that appellant and five others, two other men and three women, were at the Vest Arco Station in Joshua at 6:45 p.m. on January 26, 1973. Appellant's companions left the station and waited in their car about 150 yards down the highway while appellant and one other companion robbed the station attendant. In the process, the evidence showed, appellant shot and killed the attendant and wounded a customer present at the time. The wounded customer obtained assistance at a nearby grocery store and appellant and his companions were apprehended a short time later near Burleson. They were later identified by the wounded customer and by another customer who had left the station immediately prior to the robbery.

In his first ground of error, appellant complains that the trial court erred in permitting State's witness Bill Waits to testify at the punishment hearing that appellant's reputation in his community for being a peaceful and law-abiding citizen was bad. Waits was Chief of Police of Joshua, where the offense occurred. Appellant contends that Waits was not qualified to testify as to appellant's reputation for two reasons:

(1) The officer's opinion as to appellant's bad reputation was based solely on the facts of the case for which he was being tried; and

(2) The officer had never discussed appellant's reputation with anyone.

In perfecting his ground of error, appellant took Chief Waits on voir dire and ascertained that the Chief's knowledge of appellant's reputation was based on the following. Waits had never heard of appellant before the date of the offense, nor did he know in what part of Fort Worth the appellant lived. His knowledge of appellant's reputation was based in part on the facts of the offense for which appellant was being tried and in part on a copy of appellant's 'rap sheet' which Waits had received from the Fort Worth Police Department. Waits had never discussed appellant's reputation with anyone who knew appellant, either before or after the offense involved.

In Stephens v. State, 128 Tex.Cr.R. 311, 80 S.W.2d 980 (1935), this Court laid down the following rule with regard to testimony as to an appellant's bad reputation:

'. . . the fact that he was indicted in the case on trial and that by reason of said charge alone his reputation at the time of his trial was bad, should not be provable when such reputation is based solely on the discussion of the alleged events for which he is on trial. . . . If subsequent to the return of an indictment against a defendant there arose a discussion of his reputation based on matters other than the present indictment, proof of such general reputation might not be inhibited . . ..' Stephens, supra, 80 S.W.2d 982.

The first requirement of Stephens--that bad reputation testimony not be based solely on the offense for which appellant is on trial--has been reiterated many times by this Court. Clark v. State, 500 S.W.2d 469 (Tex.Cr.App.1973); Nichols v. State, 494 S.W.2d 830 (Tex.Cr.App.1973); Twine v. State, 475 S.W.2d 774 (Tex.Cr.App.1972); Frison v. State, 473 S.W.2d 479 (Tex.Cr.App.1971); Martin v. State, 449 S.W.2d 257 (Tex.Cr.App.1970). Although appellant strenuously urges this ground, the record clearly indicates that Chief Waits' knowledge of appellant's bad reputation was based on his 'rap sheet' as well as on the facts of the offense for which he was on trial.

The requirement that a reputation witness have Discussed the bad reputation of the accused has received somewhat less attention from this Court. The requirement

Page 513

is understandable, however, in light of the fact that reputation evidence is, of necessity, based upon hearsay. Sanchez v. State, 398 S.W.2d 117 (Tex.Cr.App.1966). Without the requirement of discussion with other members of an accused's community, a witness' testimony concerning the accused's reputation for being a peaceful and law-abiding citizen would be nothing more than an inadmissible opinion. Many cases of this Court have addressed themselves to the issue of When such a discussion of an accused's reputation should take place. Because of the Stephens requirement that reputation not be based on the facts of the instant offense, many appellants have urged that discussions of an accused's reputation had to have taken place Before the date of the offense for which he was on trial. But this Court has made it clear that such discussions of an accused's bad reputation need not take place before the date of the alleged offense, as long as they included matters other than the crime for which the accused was on trial. Twine v. State, supra; Frison v. State, supra; Broadway v. State, 418 S.W.2d 679 (Tex.Cr.App.1967).

In Weatherall v. State, 159 Tex.Cr.R. 415, 264 S.W.2d 429 (1954), the State's character witness was held not to be qualified to testify as to the appellant's bad reputation because the witness' 'testimony in this regard was not based on anything he had heard from other persons.' See also Carver v. State, 510 S.W.2d 349, 355 (Tex.Cr.App.1974) which distinguishes Weatherall. Likewise in Broussard v. State, 134 Tex.Cr.R. 1, 114 S.W.2d 248 (1938), the State's witness was held to be unqualified to testify because 'he had never heard any person say that appellant's reputation in the respect mentioned was bad.' The rules were summarized in Gilson v. State, 140 Tex.Cr.R. 345, 145 S.W.2d 182 (1940) as follows:

'A witness who testifies that he knows the...