Webber v. State

• Decision Date: 02 November 1971
• Docket Number: No. 43864,43864
• Citation: 472 S.W.2d 136
• Parties: Charles J. WEBBER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 136

472 S.W.2d 136

Charles J. WEBBER, Appellant, v.The STATE of Texas, Appellee.

No. 43864.

Court of Criminal Appeals of Texas.

Nov. 2, 1971.

Tom Moore, Jr., Waco, for appellant.

Martin D. Eichelberger, Dist. Atty., Frank M. Fitzpatrick, Jr., Kenneth H. Crow and James R. Barlow, Asst. Dist. Attys., Waco, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of unlawful sale of a narcotic drug, to-wit: marihuana.The punishment was assessed at five years.

The appellant, a college student, entered a plea of guilty before a jury and made application for probation.

The judgment will be reversed.

The evidence introduced showed that a police informer (a student) came to the appellant's apartment where the appellant and others published an 'underground' newspaper.The police informer, using an assumed name, had been to the appellant's apartment several times to buy a newspaper and to get to know the appellant and his associates.On the informant's fourth visit, he feigned smoking a marihuana cigarette with those present.The informer then notified the police and was given marked bills.He went back to the apartment approximately two hours later.The informer obtained a small quantity of marihuana.After giving the appellant the three marked dollar billshe said 'Maybe that will help you with your newspaper.'

Appellant complains in his ground of error No. 3 of the cross-examination of his first character witness.A portion of the cross-examination follows:

'Q.Let me ask you this, Mr. Cook: Have you heard, since you have testified that you knew Chuck Webber so well, of course you know at the time this offense occurred, he was not enrolled in Baylor University, is that right?

'A.No, sir, I did not know that.

'Q.Have you heard any reason for him not being enrolled in Baylor University?

'A.No, sir, I have not.

'Q.Have you heard that he was expelled from Baylor University?

'MR. MOORE: Object to that, your Honor, on the grounds that it calls for testimony as to an explicit act, and is attacking the morality and character of the defendant, which has not been placed in issue.The gentleman is testifying to his character for being a peaceful law abiding citizen.

'THE COURT: I will overrule your objection.

'MR. MOORE: Note our exception.

'A.Willyou repeat the question.

'Q.The question was, Mr. Cook, have you heard that Mr. Webber was expelled from Baylor University, when he was caught shoplifting. * * *

'MR. MOORE: I object to that, your Honor, on the grounds that it is particularly offensive and prejudicial and that it calls for testimony in regards to alleged specific offense without any history of any charges being filed, and it is calculated for the sole purpose of prejudicing the rights of the defendant.

'COURT: I sustain that objection.

'MR. MOORE: And ask that the jury be instructed to disregard it.

'COURT: You are so instructed.

'MR. MOORE: And on the grounds that the very asking of such a question is so prejudicial that an instruction can't cure it, we respectfully move for a mistrial.

'COURT: I deny the Motion.

'MR. MOORE: Note our exception.

'MR. CROW: We pass the witness.'

The fair interpretation of the prosecutor's question propounded to the character witness was to assert as a matter of fact that the appellant had been caught shoplifting.The asking of this question constituted reversible error.The fact that the appellant had placed his general reputation in issue did not authorize the state in combating proof of good reputation to show specific acts of misconduct on his part nor did it authorize the state to make inquiry in such a manner as to show or assert the truth thereof that the appellant had been guilty of particular offenses of misconduct.1 Branch'sAnn.P.C.2d 175, Sec. 170.

In McNaulty v. State, 138 Tex.Cr.R. 317, 135 S.W.2d 987, this court said:

'Furthermore, a question is objectionable independent of the answer when a proper construction of such question results in a charge that a specific offense has been committed.The objection to the question in this case was that it implied the commission of an offense.* * * The question as given is nothing else than a direct charge that such a thing had been done.* * * Some (questions) may be harmless and some may be made harmless by a negative answer, but whenever the question is so stated that it amounts to an assertion of a fact under the conditions here under discussion and it implies the commission of another offense, it may be said that its harmfulness cannot be cured by the answer and seldom by any instruction which the court is able to give the jury.'

In Pitcock v. State, 168 Tex.Cr.R. 204, 324 S.W.2d 855, it was said:

'The record reflects that the witnesses Beck, Rose and Hinninger were asked upon cross examination the following questions:

'(The witness Beck) Q.Mr. Beck, I will ask you if you have heard during your discussions there about this boy's reputation, About the trouble that he had concerning a DWI conviction in Stephens County in 1953?

Ans.No, I had no knowledge of it.(Emphasis added.)

'(The witness Rose) Q. Have you heard them discuss The trouble that he was in in 1951 concerning a DWI conviction in Taylor County, Texas?

Ans.I don't know.(Emphasis added.)

'(The witness Hinninger) Q. Have you ever heard during these discussions anything concerning the Trouble that the defendant was in Wayne Pitcock in 1953 concerning a DWI conviction in Stephens County?

Ans.No Sir.'(Emphasis added.)

'Appellant objected to the questions on the ground that it was an effort on the part of the State to attack his reputation by proof of specific instances of law violation, and as to the inquiry concerning the 1953 conviction in Stephens County upon the further ground that there was no allegation in the indictment of such a conviction.

'(1) The rule regarding cross examination of a character witness is stated in Wiley v. State, 153 Tex.Cr.R. 370, 220 S.W.2d 172, 174 as follows:

'Witnesses attesting the good reputation of an accused may, as affecting the weight, credibility, and sincerity of their testimony, be asked upon cross-examination as to whether they had heard of acts of the accused inconsistent with that reputation.* * * Such, however, is as far as the State is permitted to go in such matters, for it is expressly prohibited from conducting the cross-examination or framing the interrogatories so as to show specific acts of misconduct on the part of the accused or that he has, in fact, been guilty of such acts."(Emphasis supplied in the opinion quoted.)

In Parasco v. State, 168 Tex.Cr.R. 89, 323 S.W.2d 257, this Court admonished:

'Upon another trial, the question about CauseNo. 71,661, not plead in the indictment, should not be asked.Whenever a question is asked which amounts to an assertion of fact and implies the commission of another offense, its harmfulness cannot be cured by the answer or failure to answer, or by any instruction which the court may give, and reversible error is reflected thereby.McNaulty v. State, 138 Tex.Cr.R. 317, 135 S.W.2d 987, andWharton v. State, 157 Tex.Cr.R. 326, 248 S.W.2d 739.'

This court has consistently held that such questions are improper.See alsoParrish v. State, 163 Tex.Cr.R. 252, 290 S.W.2d 245;Wharton v. State, 248 S.W.2d 739;andWiley v. State, 220 S.W.2d 172.

The state relies upon Horton v. State, 169 Tex.Cr.R. 210, 333 S.W.2d 380, andSmith v. State, Tex.Cr.App., 411 S.W.2d 548, where it was said that witnesses attesting the good reputation of an accused may, as...