Schumaker v. State

• Decision Date: 30 January 1986
• Docket Number: Nos. 13-85-110-CR,s. 13-85-110-CR
• Citation: 704 S.W.2d 548
• Parties: Gerald Wayne SCHUMAKER, Appellant, v. The STATE of Texas, Appellee. to 13-85-113-CR.
• Court: Texas Court of Appeals

Page 548

704 S.W.2d 548

Gerald Wayne SCHUMAKER, Appellant, v. The STATE of Texas, Appellee.

Nos. 13-85-110-CR to 13-85-113-CR.

Court of Appeals of Texas,

Corpus Christi.

Jan. 30, 1986.

Charles R. Manning, Beeville, for appellant.

Jay T. Kimbrough, Co. Atty., Beeville, for appellee.

Before NYE, C.J., and KENNEDY and DORSEY, JJ.

OPINION

NYE, Chief Justice.

In a consolidated trial of four criminal cases, appellant was convicted of Harassment, Criminal Mischief, Assault, and Driving While Intoxicated. The jury assessed a total of two and a half years in jail and $7,000 in fines. The trial court granted partial probation. We reverse his convictions.

Around 9:00 p.m. on June 27, 1984, appellant made several telephone calls to the Beeville Police Department. He was upset because his fourteen-year-old daughter had run away from home. The police dispatcher handling his calls hung up on him several times because appellant was "extremely belligerent" and used abusive and profane language.

Appellant also contacted the Bee County Sheriff's Department. A deputy sheriff was dispatched to appellant's house to gather information about appellant's missing daughter. Appellant began "cussing and raising hell" with the deputy and threw a plate of chicken at him. The deputy left.

A few hours later, the deputy heard about a window being broken at the local newspaper office. While investigating, he saw appellant and his wife leave appellant's bookstore, which is near the newspaper building, and drive off in appellant's automobile. Based on his observations of appellant earlier that night, the deputy felt that appellant was too intoxicated to be driving. When a backup police unit arrived, the deputy had appellant pull to the side of the road. While being questioned, appellant threw a cup of coffee in the city police officer's face. Appellant was arrested and took an intoxilyzer test. His blood-alcohol content registered 0.13%.

Appellant was charged and convicted of Harassment for his abusive phone calls to the police dispatcher; of Criminal Mischief for breaking the newspaper's window; of Assault for throwing coffee in the police officer's face; and of Driving While Intoxicated.

The first of appellant's twelve grounds of error involves all four convictions. Appellant contends the trial court improperly allowed the prosecutor to ask appellant's character witness questions about appellant's reputation. At the punishment stage of trial, appellant's attorney carefully questioned appellant's aunt about the relationships between appellant and people known by his aunt. On cross-examination, the prosecutor sought to impeach her testimony by asking whether she had heard of specific acts of misconduct by appellant. These "have you heard" questions were allowed over appropriate defense objections.

The distinction between "character" and "reputation" is a crucial one. "Character" refers to the inherent qualities of a person. "Reputation" applies to the collective opinion of the community as to those qualities. See Livingston v. State, 589 S.W.2d 395, 399 (Tex.Crim.App.1979). A character witness is one who testifies to specific character traits of an accused of which the witness has personal knowledge. A reputation witness, on the other hand, testifies to what he or she has heard through others about the defendant's standing in the community. Thus, "have you heard" questions are a proper form of impeachment for reputation witnesses but not for character witnesses. See, e.g., Johnson v. State, 633 S.W.2d 888, 892 (Tex.Crim.App.1982); Penagraph v. State, 623 S.W.2d 341, 345 (Tex.Crim.App.1981); Livingston v. State, 589 S.W.2d 395, 400 (Tex.Crim.App.1979); Ward v. State, 591 S.W.2d 810, 818 (Tex.Crim.App.1978).

An examination of the record reveals that appellant's aunt, the witness whose testimony is at issue, was a character witness, not a reputation witness. It was clear from her testimony at the punishment stage of trial that she was relating facts within her personal knowledge, not matters she had heard others tell her about appellant. In fact, the prosecuting attorney objected to a question asked by appellant's attorney to appellant's aunt when it was still unknown whether she was a reputation witness or not. It is clear from the ensuing comments by appellant's attorney and the trial court that appellant's aunt was offered only as a character witness (the emphasis is ours throughout):

MR. KIMBROUGH [The Prosecutor]: Your Honor, I'm going to try to--I'm going to object at this point and determine if this is a character or reputation witness; that this is not the proper fashion in which the witness is asked questions concerning the individual's reputation with others. If the witness is being offered as a reputation witness [to testify to appellant's reputation] as a peacable, law-abiding citizen, then we think that the proper predicate should be laid and those questions should be asked in the proper manner.

THE COURT: Mr. Manning [appellant's attorney], I agree with Counsel. Are you offering the witness as a reputation witness?

MR. MANNING: No.

THE COURT: All right. You may ask her--

MR. MANNING: All I'm asking her--and I'm asking again.

Q. (By Mr. Manning) what is the way in which he relates to other people, as you know it? The people that you know, that he knows, and how he relates to them?

THE COURT: All right. Just a moment. Same objection?

MR. KIMBROUGH: Same objection, Your Honor.

THE COURT: The witness is instructed to answer the question only of those matters within your personal knowledge or relations. Counsel for State will have the opportunity to cross-examine you on exactly what--on exactly what you say to test you as to whether or not it's from your personal experience.

Q. (By Mr. Manning) Right. I'm only asking what you have seen yourself of the people that both of you know.

A. Well, when he's in our home, we have friends in. Well, he's always friendly with everybody. When I see him on the streets or the cafe, he's always friendly with everybody.

MR. MANNING: Thank you. Pass the witness.

On cross-examination, the prosecutor, over timely and appropriate defense objections, was allowed to ask Ms. Tucker whether she had heard of various acts of misconduct by the accused. These included arrests for window-breaking incidents, a terroristic threat, a criminal tresspass, an invasion of privacy, and harassment by phone. The trial court permitted the "have you heard" questions based upon the authority of Williams v. State, 566 S.W.2d 919 (Tex.Crim.App.1978).

The Williams Court noted that the testimony at issue in Williams was nearly identical to the testimony in Childs v. State, 491 S.W.2d 907 (Tex.Crim.App.1973), and the Williams Court relied on Childs to sustain the defendant's conviction. In Childs, the defendant's father was asked, "Q. And has his conduct been good since he has been there while he has been there at home? A. Really has." In analyzing this testimony, the Childs Court blurred the distinction between character and reputation witnesses and said, "Appellant may not have a witness testify about his good character traits but avoid 'placing his reputation in evidence' simply by not specifically asking whether appellant enjoyed a good reputation in the community." Childs at 909. The convictions in both Childs and Williams were upheld. See also Salazar v. State, 494 S.W.2d 548 (Tex.Crim.App.1973).

Interestingly, shortly after the Williams case was decided, the Court of Criminal Appeals abandoned the above-quoted Childs rule in Ward v. State, 591 S.W.2d 810 (Tex.Crim.App.1978) (Opinion on motion for rehearing). The Court held, "The fallacy in the Childs rule is that it ignores the difference between character and reputation." Id. at 817. The Court explained:

Since the purpose of a have you heard question is to test the witness who purports to be familiar with hearsay and rumors of the accused's reputation, a witness who has not professed to be familiar with that reputation in the community could not logically be discredited by questions of whether he has heard other rumors of acts inconsistent with that reputation. Simply stated, there is no reasonable basis for asking have you heard questions of a witness who testifies to his personal opinion of someone's character, as opposed to the reputation of that person's character. Since appellant's wife was not testifying to his reputation, no have you heard questions to test familiarity with that reputation should have been allowed at all.

Id. at 818 (emphasis in original).

The Court of Criminal Appeals has consistently approved of its holding in Ward. See Johnson v. State, 633 S.W.2d 888, 891-92 (Tex.Crim.App.1982) and authorities cited therein. Cf. Rutledge v. State, 693 S.W.2d 681 (Tex.App.--Dallas 1985, no pet.). Thus, it is error to permit a witness who has testified on personal knowledge or as to character to be cross-examined with questions allowed only to a reputation witness ("have you heard" questions). Johnson at 892. This is true whether the testimony occurs during the guilt phase of trial or the punishment phase. Id. at 892; Penagraph v. State, 623 S.W.2d 341, 345 (Tex.Crim.App.1981). The correct methodology is to determine "whether the testimony given by a witness on behalf of an accused at the punishment hearing goes to the reputation of the latter, rather than known character traits." Johnson at 892 (emphasis in original).

We have already concluded that the testimony of appellant's aunt established her solely as a character witness for appellant. Although she did say that appellant "was always friendly with everybody," she had been admonished by the trial court to answer based only upon her personal knowledge. She makes it clear that when she sees appellant, he is friendly with others; she obviously was testifying only from her personal knowledge.

Although appellant's aunt was a character witness and not a reputation witness, the...