Wright v. State

• Decision Date: 21 March 1973
• Docket Number: No. 45824,45824
• Citation: 491 S.W.2d 936
• Parties: Charles Manuel WRIGHT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 936

491 S.W.2d 936

Charles Manuel WRIGHT, Appellant, v. The STATE of Texas, Appellee.

No. 45824.

Court of Criminal Appeals of Texas.

March 21, 1973.

Rehearing Denied April 11, 1973.

Howard B. Law, Dallas, for appellant.

Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The conviction is for robbery by firearms, the punishment 149 years imprisonment.

The evidence shows the appellant robbed J. O. Simpson by the use of a pistol. The sufficiency of that evidence to sustain the conviction is not challenged.

The appellant first complains that the state was erroneously permitted to test the knowledge of a witness who testified that the appellant's general reputation for being a peaceable, law-abiding citizen was good by asking 'have you heard' questions concerning the offense for which he was being tried and acts alleged to have occurred subsequent thereto.

The appellant designates the following portion of the record as supporting his claim of error.

Question by the prosecutor: 'I failed to ask you this, but had you heard that Charles Manuel Wright was arrested on September 27, 1967--'

Defendant's attorney: 'Your Honor, I object to this and to any insinuation of the record after the alleged offense, we don't think that is material to this case and is prejudicial.'

The Court: 'I overrule the objection.'

Defendant's attorney: 'Note our exception.'

Prosecutor: 'For the offense of armed robbery and murder which occurred on August 6th, 1967, had you heard that?'

Witness: 'Had I heard that? No, I just heard that he got picked up for investigation of armed robbery.'

As soon as the witness had left the witness stand the appellant's counsel placed the prosecutor on the witness stand and showed that the murder to which prosecutor was referring in the above question occurred August 28, 1967, subsequent to the commission of the alleged offense for which he was being tried and prior to the time of his arrest on September 27, 1967. ¹

The appellant's objection in the trial court concerned only the asking of 'have you heard' questions about acts subsequent to the offense for which he was on trial.

Although the rule was different prior to the effective date of Article 37.07, Vernon's Ann.C.C.P., that article now permits either the state or the defendant during the hearing at the punishment phase of the trial to introduce evidence concerning the appellant's general reputation for being a peaceable, law-abiding citizen up until the time of trial. Therefore, the appellant's objection to the prosecutor's asking 'have you heard' questions concerning matters occurring after the time of the alleged offense is without merit. See Broadway v. State, 418 S.W.2d 679 (Tex.Cr.App.1967); Ballew v. State, 452 S.W.2d 460 (Tex.Cr.App.1970) and Frison v. State, 473 S.W.2d 479 (Tex.Cr.App.1971).

For the first time on appeal appellant additionally asserts that '. . . it is not proper for the State to show or attempt to show that the reputation of the defendant is bad because of the charge for which he is being tried.'

It is still improper to permit a witness to testify that a defendant's general reputation for being a peaceable law-abiding citizen is bad based upon the offense for which he is being tried. Stephens v. State, 128 Tex.Cr.R. 531, 80 S.W.2d 980 (1935); Broadway v. State, supra (concurring opinion); Wilson v. State, 434 S.W.2d 873 (Tex.Cr.App.1968) and Frison v. State, supra. It is also improper to test the knowledge of a witness who has testified to the good reputation of a defendant for being a peaceable, law-abiding citizen by asking 'have you heard' questions concerning the alleged offense for which he is being tried.

In this case the asking of the question and the answer given do not show reversible error. In the first place no objection was made on this ground at the time of trial. In addition, from the record in this case it is not entirely clear that the armed robber referred to by the prosecutor in his question was the same robbery for which he was then on trial, even though the robbery referred to in the question was committed on the same day alleged in the indictment in the case for which he was being tried. See Frison v. State, supra. Further, the answer of the witness does not reflect what effect the robbery offense referred to in the question had upon the appellant's reputation. What was said in King v. State, 133 Tex.Cr.R. 496, 113 S.W.2d 181 (1938) under similar circumstances is equally applicable here. That is:

'The state was venturing on dangerous ground in the particulars mentioned, but it appears that the witness did not advise whether what he had heard had been good or bad, and we think the bill fails to reflect error which would call for a reversal.'

See also Boone v. State, 149 Tex.Cr.R. 476, 196 S.W.2d 638 (1945); ² Frison v. State, supra, and Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816 (1956).

The appellant next contends that it was error to prevent him from placing before the jury evidence that he had been incarcerated for eighteen months prior to trial. He argues that such evidence was admissible to explain his lack of witnesses on the issue of alibi. The record does not show that he was deprived of any alibi witnesses. At a hearing out of presence of the jury the appellant named only one witness whose testimony he desired and who was not available as a witness. Later the witness named did in fact testify. No error is shown.

The appellant also urges that it was error for the court to refuse to strike testimony given by him in answer to one of his own counsel's questions on direct examination which he says was non-responsive.

His counsel inquired: 'Okay, were you employed after you left school? Did you have a job?' The appellant answered: 'I went to reform school.' We...