Monthly archive

December 2010

And Now for Something Different?


Recently, I tried an aggravated sexual abuse of a child case out here in West Texas. I came across some interesting case law that allowed a tactic during the guilt innocence phase of the trial, and used it successfully to gain a “not true” verdict in a juvenile case. However, I honestly believe that you could use this tactic in the trial of an adult. I believe that in the proper case, it is a very effective tactic. This would be especially true where the alleged victim is the only witness other than the “outcry” witness.

In talking with numerous other attorneys, and from the reaction of the prosecutor, I found that not many people were familiar with this tactic. The major “caveat” here is that you have to first have “full and complete disclosure” by the prosecution under a 404(b) request. The second part to this tactic is that your client must be absolutely “squeaky clean.” If either of these issues are not resolved in your favor, then I would not advise using the tactic. If you do not heed this warning, and your client has anything that the prosecutor may use, then you have “opened the door” for all of it to come in during the guilt-innocence phase of the trial. But it appears that most prosecutors are not prepared for your introduction of this type of evidence at the guilt-innocence phase of the trial.

I used different character and reputation witnesses from each phase of my client’s life (i.e., family, school, employment, extracurricular activities, church, etc.). The key is not to reveal this tactic until the guilt-innocence phase of trial.

I have outlined the underlying Rules as well as case law for your use.

Issue

What character evidence can be introduced through Texas Rule of Evidence 404(a) at the guilt and punishment stages of trial in juvenile cases. What are the advantages and disadvantages to introducing this character evidence at the guilt and punishment phases of trial in juvenile cases

Rules

Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

(a) Character Evidence Generally—Evidence of a person’s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1)
Character of Accused—Evidence of a pertinent character trait offered:

(A) by an accused in a criminal case, or by the prosecution to rebut the same, or

(B)
by a party accused in a civil case of conduct involving moral turpitude, or by the accusing party to rebut the same;

(2)
Character of Victim—In a criminal case and subject to Rule 412, evidence of a pertinent character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of character for violence of the alleged victim of assaultive conduct offered on the issue of self-defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same;

(3)
Character of Witness—Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b) Other Crimes, Wrongs or Acts—Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other than that arising in the same transaction.

Rule 405. Methods of Proving Character

(a) Reputation or Opinion—In all cases in which evidence of a person’s character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.

(b) Specific Instances of Conduct—In cases in which a person’s character or character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct.

FAMILY CODE §51.17. Procedure and Evidence

(a) Except as provided by Section 56.01(b-1) and except for the burden of proof to be borne by the state in adjudicating a child to be delinquent or in need of supervision under Section 54.03(f) or otherwise when in conflict with a provision of this title, the Texas Rules of Civil Procedure govern proceedings under this title.

(b) Discovery in a proceeding under this title is governed by the Code of Criminal Procedure and by case decisions in criminal cases.

(c) Except as otherwise provided by this title, the Texas Rules of Evidence apply to criminal cases and Articles 33.03 and 37.07 and Chapter 38, Code of Criminal Procedure, apply in a judicial proceeding under this title.

Application

Under the Texas Rules of Evidence, evidence of a person’s char­acter or character trait is generally inadmissible to prove a person’s actions were in conformity with that character on a particular occasion.1 One exception to this rule applies when an accused offers evidence of his own pertinent character trait to show conformity.2 This exception applies to both criminal and civil cases; however, in a civil case, the defendant must be accused of conduct involving moral turpitude.3 Where character evidence is allowed, it must be proved through either reputation or through opinion testimony.4 Reputation and opinion questions must be about pertinent character traits.5 Generally, character evidence, if admissible and in the right form, is allowed at both the guilt state and the punishment phase; however, in a criminal case, the witness at the guilt-innocence state of the trial must be familiar with the reputation or facts that form the opinion prior to the day of the offense.6

These seemingly straightforward rules bring about many subtle questions. Also, there are dangers to bringing this type of evidence because it may or may not open a door for the prosecutor to bring in its own character evidence and even specific instances on cross-examination.7 This article will discuss the subtleties of these rules through the context of juvenile sexual assault case.

Moral Turpitude

To offer character evidence under Texas Rule of Evidence 404(1)(a), a party must first answer two questions: whether the case is criminal or civil, and if civil, whether the accusation involves moral turpitude. The first question should be easy enough, but a juvenile case takes on aspects of both a criminal and civil pro­ceeding.8 For example, the Texas Rules of Civil Procedure apply to juvenile proceedings, but the standard of proof required by the state is beyond a reasonable doubt.9 When it comes to Texas Rule of Evidence 404 and whether it falls into the “primarily civil [. . .] nature”10 of juvenile proceedings or into its “quasi-criminal nature,”11 it seems the answer is clearly civil.12 In the Matter of G.M.P. holds that where a juvenile is charged with sexual assault, the accusation involves moral turpitude, and he is therefore entitled to offer character evidence.13 The very fact that a holding is necessary on whether this juvenile crime involves moral turpitude implies that when it comes to issues under Rule 404, a juvenile proceeding is civil.

Once it is decided that the case is civil or is at least governed by civil law, the next question to ask is whether the defendant is accused of conduct involving moral turpitude. G.M.P. reminds us that there is “no clear cut criteria” for determining what crimes and conduct involve moral turpitude.14 Also, the case law determining which conduct involving moral turpitude seems to truly determine which crimes involve moral turpitude.15 The major two areas of civil law on the subject are disciplinary actions regarding attorneys and insurance agents and juvenile cases.16 Both areas are tied to crimes that involve moral turpitude. The typical case of license suspensions connected with moral turpitude is one where the licensee is suspended for committing a crime involving moral turpitude, and the juvenile proceeding is a civil proceeding to adjudicate the crime of a minor.

As for crimes that involve moral turpitude, G.M.P. tells us that they are those that involve “dishonesty, fraud, deceit, misrepresentation, or deliberate violence.”17 This includes sexual assault of a child.18 This does not include a misdemeanor driving while intoxicated conviction.19 This also does not include an issuance of a bad check so long as it does not involve intent to defraud.20

Character Traits

The next issue in introducing character evidence by the accused is the classification of that evidence as a character trait. There have been some established character traits such as sobriety, honesty and fair dealing, and peacefulness and law-abiding.21 Courts have also found, however, that some proffered evidence does not fit in the category of character traits.22 In Valdez v. State, the court held that proffered evidence of the defendant being a “non-pedophile” was not evidence of a character trait but rather an attempt to put on inadmissible evidence of specific instances.23 So, while “good character of a defendant may be shown by negative testimony”24 (that the witness has not heard of the defendant having a reputation for a trait and that the witness would be in a position to know of any reputation for it), generally character evidence cannot be the lack of specific acts.25

Pertinent Character Traits

Character traits must be pertinent to the offense charged.26 The test seems to be just that: whether the trait is relevant to the offense charged;27 however, there have been specific traits traditionally matched with specific charges throughout the rule’s history. For example, a reputation for sobriety is paired with a DWI charge and a reputation for honesty and fair dealing is paired with a charge like embezzlement or fraud.28 Although a list of corresponding traits to charges seems to be growing, again the test seems only to require pertinence. As Moody v. State shows, appellate courts have time and again reversed trial courts that have excluded proffered evidence relevant to the offense charged.29 In Moody—an indecency with a child case—the trial court allowed evidence of the defendant’s reputation for law-abiding and peacefulness, but refused evidence of the defendant’s reputation for the ethical treatment of children.30 The court of appeals held that the trial court erred and that a “defendant charged with sexual assault of a child is entitled to prof­fer evidence of his good character for ‘moral and safe relations with small children.’”31

Reputation and Opinion

When character evidence is admissible (offered by accused, moral turpitude involved where required, fits within character trait definition, and pertinent to offense charged), a party must offer the character evidence in one of two ways: through testimony of the accused’s reputation or through testimony in the form of an opinion.32 But “different predicates are required for” the different methods.33 First, to be qualified to testify as to an accused’s reputation, the person must be familiar with the accused’s reputation based on “discussions with others” or “on hearing others discuss the defendant’s reputation.”34 In contrast to opinion testimony, reputation testimony cannot be based solely on personal knowledge.35 Next, in a criminal case, the witness must have been familiar with the accused’s reputation prior to the date of the offense to be qualified at the guilt stage of the trial.36

The predicate for opinion testimony requires that the witness be familiar with the underlying facts or information upon which the opinion is based.37 Here, the witness’ testimony does not need to be based on “community observation or by talking to people in the community,”38 but rather on personal knowledge of the underlying facts serving as a basis for the opinion.39 The underlying facts must be specific to the opinion offered.40 So, for example, asking a witness about their personal knowledge of interactions between the accused and small children does not establish a proper predicate for asking the witness of his opinion on whether the accused is a law-abiding citizen.41 Instead, those underlying facts would establish a basis for an opinion on whether the accused acts appropriately with small children.42 Character evidence in the form of opinion testimony is also subject to the 405(a) caveat that requires a witness in a criminal case at the guilt stage to be familiar with the underlying facts upon which the opinion is based before the date of the offense.43

Opening the Door

When an accused offers evidence of his own good character trait, he opens the door for the accusing party to offer its own character evidence.44 The State can do this in two different ways. First, it can offer its own character evidence—in reputation or opinion form—to rebut the character evidence put on by the accused.45 The second and more intriguing option for the State is to inquire into relevant specific instances on cross-examination to test the knowledge of the witness or show that the witness has a low standard of what she considers good character.46

While the accuser’s predicate for reputation and opinion testimony remains the same as it was for the accused, a separate predicate exists for the cross-examination of the accused’s witness to inquire into specific instances.47 “First, there must be some factual basis for the incidents inquired about.”48 This foundation of a factual basis must be laid outside the presence of the jury.49 The function of this factual basis requirement is to “provide trial and appellate courts with a test for determining whether a prosecutor’s [. . .] question was asked in good faith.”50 This is important because the factual foundation for the act may be based on evidence that would be inadmissible at trial.51 For example, offense reports, investigation reports, and arrest records may serve as the factual basis.52 The second part of the “two-part predicate” for inquiries on cross-examination, is that the specific incident inquired into “must be relevant to the character trait at issue.”53

Once the predicate has been established, the accusing party is then allowed to inquire into relevant instances of conduct.54 These inquiries are limited, however, to “do you know” or “have you heard” questions.55 Unlike Texas Rule of Evidence 609—where actual evidence of a crime of moral turpitude may be introduced to impeach the witness’ character—Rule 405 allows only inquiry questions and not extrinsic evidence.56

These inquiry questions traditionally come in the form of “have you heard” when attempting to impeach reputation witnesses and “did you know” when impeaching opinion witnesses.57 The language of the rule itself, however, does not require these forms or provide any distinction between opinion and reputation.58 The theory behind the two separate questions is that a witness who has testified to an accused’s reputation should be impeached as to her knowledge of that reputation and any inconsistent conduct that community may have heard. An opinion on the other hand should not be discredited by rumors circulated in the community.59 While the courts have maintained that using these “magic words”60 is the preferable approach,61 they are hypertechnical62 and the ultimate purpose is to “determine whether the witnesses really know what they are talking about when they offer either opinion or reputation tes­timony about another person.”63 The failure to use them inappropriately, therefore, will often not lead to a reversal.64

Introducing character evidence of a good character trait of an accused opens the door to allow the accusing party to rebut that evidence in the form of reputation testimony, opinion testimony, and inquiries of specific instances to test the witness’ knowledge or standard of good character. This can be done at guilt-innocence or punishment. Although in a criminal proceeding, a witness at the guilt-innocence phase of the trial must be familiar with the defendant’s reputation or to the underlying facts upon which an opinion is based prior to the date of the of­fense. Because juvenile sexual assault cases are considered civil in nature, I would argue then that at a juvenile proceeding the witness is not required to have this knowledge prior to the offense). The decision to introduce this character evidence at the guilt or punishment phase is one of strategy.

Guilt vs. Punishment Stage

In the text of Texas Rules of Evidence 404 and 405, the only restriction placed on admissible character evidence regarding the guilt versus punishment stages of trial, is found in subsection 405 (a).65 For a witness to testify to a defendant’s character “at the guilt stage of trial” in a criminal case, she must have been familiar with that defendant’s reputation or to the facts supporting their opinion prior to the date of the offense.66 Seemingly then, admissible evidence of an accused character trait is allowed in both the guilt and punishment stages with 405(a)’s caveat.67 The decision to enter character evidence—whether at the guilt-innocence stage of the trial, the punishment phase of the trial, or to enter it at all—is a decision made by the accused.68

This decision should be weighed carefully, especially during the guilt stage. The benefit of character evidence is often essential to the accused’s case. Many times, the lack of physical evidence presents a defendant with the task of proving a negative.69 Against the testimony of the child victims, an accused may be relying only on “his own testimony and the testimony of others as to his character and reputation.”70 Although the accused may heavily rely on this reputation evidence, offering it opens the door for the prosecution to enter its own reputation testimony and sometimes more importantly to inquiries of separate acts.71 Also, these separate acts cannot be matched by the accused with specific instances of good conduct72 or even the lack of bad conduct.73 To be a positive benefit, therefore, the defendant must have a clean record. In other words, if the accused has damning specific instances that can be inquired into, it may be better strategy to not enter character evidence and open the door for the prosecution.

In a criminal proceeding at the punishment phase of the trial, the decision may, depending on the case, have less of an impact. The State may be able to offer evidence of these specific instances regardless of whether the accused enters its own character evidence under article 37.07 of the Texas Code of Criminal Procedure.74 Under article 37.07, the State may offer relevant bad acts shown to be committed by the accused beyond a reasonable doubt.75 Therefore, if the specific instances the accused is trying to keep out can be proven, there is little if any disadvantage to offering his own character evidence and thereby opening the door. In a juvenile case, the same rule applies.76 In 2007, section 51.17 of the Texas Family Code added article 37.07 of the Texas Code of Criminal Procedure, which allows for the admission of extraneous acts.77

While the accused has the power in limited circumstances to introduce character evidence in support of his case, using this power hands over the keys to the prosecution to open the door for its own character evidence. The decision to use this power should be made only after a careful study of both the applicable law and the facts of the case.

I would like to thank Mark Briley, a TCDLA member from Abilene, who helped me write this article. His tireless work in assisting me, was a major factor in my “not true” verdict. I thought that it would be something that would give “food for thought” in a proper case.

Table of Authorities

Statutes

Tex. R. Evid. 404

Tex. R. Evid. 405

Tex. Code Crim. Proc. Ann. Art. 37.07 §3(a)(1)

Tex. Fam. Code Ann. §51.17

Cases

Barajas v. State, 2003 Tex. App. LEXIS 6226 (Tex. App.—El Paso 2003)

Brazelton v. State, 947 S.W.2d 644 (Tex. App.—Fort Worth 1997, no pet.)

Brown v. Tex. Dep’t of Ins., 34 S.W.3d 683 (Tex. App.—Austin 2000, no pet.)

Dallas County Bail Bond Bd. v. Mason, 773 S.W.2d 586 (Tex. App.—Dallas 1989, no writ)

Duncan v. Board of Disciplinary Appeals, 898 S.W.2d 759 (Tex. 1995)

Hollingsworth v. State, 15 S.W.3d 586 (Tex. App.—Austin 2000)

In the Matter of G.M.P., 909 S.W.2d 198 (Tex. App.—Houston [14th Dist.] 1995, no pet.)

Kemp v. State, 2009 Tex. App. LEXIS 9213 (Tex. App.—Houston [14th Dist.] 2009)

Lopez v. State, 990 S.W.2d 770 (Tex. App.—Austin 1999, no pet.)

Melgar v. State, 236 S.W.3d 302 (Tex. App.—Houston [1st Dist.] 2007)

Monarrez v. State, 2003 Tex. App. LEXIS 997 (Tex. App.—Dallas 2003)

Moody v. State, 2006 Tex. App. LEXIS 9788 (Tex. App.—Houston [1st Dist.] 2006)

Murphy v. State, 4 S.W.3d 926 (Tex. App.—Waco 1999)

Reynolds v. State, 848 S.W.2d 785 (Tex. App.—Houston [14th Dist.] 1993)

Robertson v. State, 685 S.W.2d 488, 492 (Tex. App.—Fort Worth 1985, no pet.)

Smith v. State, 2005 Tex. App. LEXIS 6567 (Tex. App.—Texarkana 2005)

Thomas v. State, 669 S.W.2d 420 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d)

Townsend v. State, 776 S.W.2d 316 (Tex. App.—Houston [1st Dist.] 1989)

Turner v. State, 805 S.W.2d 423, 429 (Tex. Crim. App. 1991)

Valdez v. State, 2 S.W.3d 518 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)

Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002)

Wilson v. State, 71 S.W.3d 346 (Tex. Crim. App. 2002)

Notes

1. Tex. R. Evid. 404(a).

2. Tex. R. Evid. 404(a)(1).

3. Tex. R. Evid. 404(a)(1)(B). In G.M.P., the court reminds us that “there is no clear cut criteria” for defining moral turpitude, and the case law seems to involve mostly crimes rather than civil conduct. See In the Matter of G.M.P., 909 S.W.2d 198, 207–208 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(citing Robertson v. State, 685 S.W.2d 488, 492 (Tex. App.—Forth Worth 1985, no pet.). Also, even the few examples of civil conduct involving moral turpitude are closely related to criminal conduct. See id. (pointing to examples of attorney disciplinary actions which in essence require crimes of moral turpitude and later holding that sexual assault of a child by a juvenile involves moral turpitude).

4. Tex. R. Evid. 405(a).

5. Tex. R. Evid. 404(a)(1); Monarrez v. State, 2003 Tex. App. LEXIS 997 (Tex. App. Dallas Jan. 31, 2003).

6. See Tex. R. Evid. 404, 405(a)(distinguishing the guilt from punishment phase of the trial only in that to testify at the guilt state of trial in a criminal proceeding, the witness must be familiar with the reputation or facts upon which an opinion is based prior to the date of the offense).

7. See Tex. R. Evid. 404, 405(a)(stating that character evidence is allowed by the prosecution or accusing part to rebut evidence offered by the accused and that on cross-examination, “inquiry is allowable into relevant specific instances”).

8. See In the Matter of G.M.P., 909 S.W.2d 198, 201 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(“The legislature has deemed that a juvenile adjudication proceeding is primarily civil in nature, although certain aspects of an adjudication proceeding are criminal in nature”).

9. Id. at 201–202.

10. In the Matter of G.M.P., 909 S.W.2d 198, 201 (Tex. App.—Houston [14th Dist.] 1995, no pet.).

11. In the Matter of G.M.P., 909 S.W.2d 198, 202 (Tex. App.—Houston [14th Dist.] 1995, no pet.).

12. See In the Matter of G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(holding that because the defendant was charged with sexual assault of a child, the accusation involved moral turpitude and therefore the defendant was entitled to offer character evidence). This court also mentions twice in its footnotes that it looks to criminal law concerning Texas Rule of Evidence 405 in a juvenile case only when the case law is “bereft of cases construing the civil rule.” Id. at 209.

13. In the Matter of G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th Dist.] 1995, no pet.).

14. See In the Matter of G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(citing Robertson v. State, 685 S.W.2d 488, 492 (Tex. App.—Forth Worth 1985, no pet.)).

15. See footnote 12 (noting that the courts often look to criminal cases where the civil case law is deficient).

16. See Duncan v. Board of Disciplinary Appeals, 898 S.W.2d 759, 761 (Tex. 1995)(stating that “the determination of whether a particular crime involves moral turpitude is a question of law” and deciding whether the crime for which an attorney was suspended involves moral turpitude); Brown v. Tex. Dep’t of Ins., 34 S.W.3d 683 (Tex. App.—Austin 2000, no pet.)(affirming the revocation of an insurance license where guidelines provided for the revocation if the licensee was convicted of a felony involving moral turpitude).

17. In the Matter of G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th Dist.] 1995, no pet.).

18. In the Matter of G.M.P., 909 S.W.2d 198, 208 (Tex. App.—Houston [14th Dist.] 1995, no pet.).

19. Lopez v. State, 990 S.W.2d 770, 777 (Tex. App.—Austin 1999, no pet.).

20. Dallas County Bail Bond Bd. v. Mason, 773 S.W.2d 586, 586, 588 (Tex. App.—Dallas 1989, no writ).

21. Valdez v. State, 2 S.W.3d 518, 520 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).

22. See Valdez v. State, 2 S.W.3d 518, 520 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)(holding that “being a ‘non-pedophile’ is not evidence of a person’s character or character trait,” rather it is impermissible evidence of specific instances (or lack of instances)).

23. See Valdez v. State, 2 S.W.3d 518, 520–21 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)(citing Schmidt v. State, 449 S.W.2d 39 (Tex. Crim. App. 1969) and comparing evidence of a person being a non-pedophile to evidence that a person had not been in trouble with the law).

24. Valdez v. State, 2 S.W.3d 518, 520 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).

25. See Valdez v. State, 2 S.W.3d 518, 520–21 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)(holding that the question of whether the defendant was a non-pedophile was improper, not because it was in the negative, but because it referenced specific acts or the lack of acts rather than reputation or an opinion of defendant’s character); but see Brazelton v. State, 947 S.W.2d 644 (Tex. App.—Fort Worth 1997, no pet.)(allowing character evidence that the defendant did not use or sell drugs).

26. Tex. R. Evid. 404(a)(1); Monarrez v. State, 2003 Tex. App. LEXIS 997 (Tex. App.—Dallas 2003).

27. See Thomas v. State, 669 S.W.2d 420, 423 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d)(reversing the trial court for excluding proffered evidence because the trait was relevant to show the improbability of the crime charged).

28. See Valdez v. State, 2 S.W.3d 518, 520–21 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)(footnote 1);Thomas v. State, 669 S.W.2d 420, 423 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d)(noting that in other cases sobriety questions have been allowed for DWI cases and honesty and fair dealing questions have been allowed in embezzlement cases).

29. See Moody v. State, 2006 Tex. App. LEXIS 9788 (Tex. App.—Houston [1st Dist.] 2006)(citing Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002), Thomas v. State, 669 S.W.2d 420 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d), and In the Matter of G.M.P., 909 S.W.2d 198 (Tex. App.—Houston [14th Dist.] 1995, no pet.), as courts along with itself which have upheld the defendant’s right to present character evidence in reputation form which is pertinent to the offense charged).

30. Moody v. State, 2006 Tex. App. LEXIS 9788, 4–5 (Tex. App.—Houston [1st Dist.] 2006).

31. Id. at 9.

32. Tex. R. Evid. 405.

33. Barajas v. State, 2003 Tex. App. LEXIS 6226, 26 (Tex. App.—El Paso 2003); Hollingsworth v. State, 15 S.W.3d 586, 598 (Tex. App.—Austin 2000); but see Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.—Houston [1st Dist.] 2007)(stating that the common-law distinction between opinion and reputation had been relaxed).

34. Barajas v. State, 2003 Tex. App. LEXIS 6226, 26 (Tex. App.—El Paso 2003).

35. Smith v. State, 2005 Tex. App. LEXIS 6567, 11 (Tex. App.—Texarkana 2005). Be careful though; while reputation testimony cannot be based solely on personal knowledge, the requirement for discussions with others about the reputation of the accused is easily met. See Turner v. State, 805 S.W.2d 423, 429 (Tex. Crim. App. 1991)(stating that knowledge of an accused reputation is sufficient when based on discussions with other police officers and also when “partially based on discussions concerning the offense for which the defendant is being tried”).

36. Tex. R. Evid. 405.

37. Tex. R. Evid. 405(a); Barajas v. State, 2003 Tex. App. LEXIS 6226, 26–27 (Tex. App.—El Paso 2003); Smith v. State, 2005 Tex. App. LEXIS 6567, 10 (Tex. App.—Texarkana 2005).

38. Smith v. State, 2005 Tex. App. LEXIS 6567, 10 (Tex. App.—Texarkana 2005).

39. See Smith v. State, 2005 Tex. App. LEXIS 6567, 10–11 (Tex. App.—Texarkana 2005)(stating that a witness could have been familiar with the underlying facts based upon interviews and experiences with the accused).

40. See Barajas v. State, 2003 Tex. App. LEXIS 6226, 28–35 (Tex. App.—El Paso 2003)(holding that the defense did not lay the proper predicate for asking for an opinion on whether the accused was a law-abiding citizen where the witness said only that he had known the accused for years, had had an opportunity to see the accused interact with children , and that he had never seen the accused act inappropriate with the children).

41. Id.

42. See Barajas v. State, 2003 Tex. App. LEXIS 6226, 34 (Tex. App.—El Paso 2003)(stating that the defense witness was allowed to testify to his opinion on whether the accused acted appropriately with small children).

43. Tex. R. Evid. 405(a).

44. See Tex. R. Evid. 404(a)(1), 405(a) (allowing the accusing party to rebut the accused character evidence and to inquire into specific instances).

45. Tex. R. Evid. 404(a)(1).

46. Tex. R. Evid. 405(a); see In the Matter of G.M.P., 909 S.W.2d 198, 209–210 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(analyzing the 405(a) rule which allows cross-examination into relevant specific instances of conduct and the predicates for such cross-examination).

47. Compare Murphy v. State, 4 S.W.3d 926, 930–31(Tex. App.—Waco 1999)(explaining the two-part predicate for “have you heard” questions); with Barajas v. State, 2003 Tex. App. LEXIS 6226, 26 (Tex. App.—El Paso 2003)(explaining the two different predicates for reputation and opinion testimony).

48. In the Matter of G.M.P., 909 S.W.2d 198, 210 (Tex. App.—Houston [14th Dist.] 1995, no pet.).

49. Id.

50. Reynolds v. State, 848 S.W.2d 785, 789 (Tex. App.—Houston [14th Dist.] 1993).

51. See Murphy v. State, 4 S.W.3d 926, 931(Tex. App.—Waco 1999)(stating that the Court of Criminal Appeals has made it clear that the “good-faith basis may rest on evidence that would not necessarily be admissible at trial”).

52. Id. Also, the factual basis for inquiries in the punishment phase of the trial may be laid earlier in the guilt-innocence phase of the trial. See Reynolds v. State, 848 S.W.2d 785, 788–89 (Tex. App.—Houston [14th Dist.] 1993)(holding that a factual basis was made for inquiries at the punishment phase of the trial during the guilt-innocence phase).

53. Murphy v. State, 4 S.W.3d 926, 930–31(Tex. App.—Waco 1999).

54. Tex. R. Evid. 405(a).

55. See Wilson v. State, 71 S.W.3d 346, 351 (Tex. Crim. App. 2002)(“While a party may cross-examine a character witness with relevant specific acts, the party may not prove that these acts occurred, if the only purpose is to test the character witness”).

56. See Wilson v. State, 71 S.W.3d 346, 351 (Tex. Crim. App. 2002)(stating that Rule 405(a) does not provide for admitting “extrinsic proof of the conduct”); In the Matter of G.M.P., 909 S.W.2d 198, 210 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(comparing Texas Rule of Evidence 609 and 405(a)); but see Townsend v. State, 776 S.W.2d 316 (Tex. App.—Houston [1st Dist.] 1989)(allowing, seemingly under Rule 404(a), evidence to rebut good character evidence offered by the accused—not in reputation or opinion form or through inquiry on cross-examination of specific instances, but in the form of extraneous evidence offered through rebuttal witnesses).

57. See Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002)(stating that the better practice is to follow the traditional method); Kemp v. State, 2009 Tex. App. LEXIS 9213, 13-14 (Tex. App.—Houston [14th Dist.] 2009).

58. See Tex. R. Evid. 405(a)(stating only that proof may be made through reputation or opinion testimony and that where testimony is admitted, inquiry is allowable on cross into relevant instances of conduct); Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002)(noting that while the rule does not distinguish, the better practice is to follow the traditional method); Kemp v. State, 2009 Tex. App. LEXIS 9213, 13–14 (Tex. App.—Houston [14th Dist.] 2009)(stating that 405(a) “does not draw a distinction between ‘reputation’ witnesses and ‘opinion’ witnesses and does not limit cross-examination to any particular form”).

59. Murphy v. State, 4 S.W.3d 926, 932 (Tex. App.—Waco 1999).

60. In the Matter of G.M.P., 909 S.W.2d 198, 209 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(footnote 7).

61. Murphy v. State, 4 S.W.3d 926, 933(Tex. App.—Waco 1999).

62. In the Matter of G.M.P., 909 S.W.2d 198, 209 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(footnote 7).

63. Murphy v. State, 4 S.W.3d 926, 933(Tex. App.—Waco 1999).

64. See In the Matter of G.M.P., 909 S.W.2d 198, 209 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(footnote 7)(holding that it does not base error on the failure to use magic words); Murphy v. State, 4 S.W.3d 926, 933 (Tex. App.—Waco 1999)(stating that while imprecise language was used, the record made clear that the prosecutor was probing the opinion witness about her personal knowledge and not her knowledge of reputation).

65. Tex. R. Evid. 404–05.

66. Tex. R. Evid. 405(a).

67. Compare Thomas v. State, 669 S.W.2d 420, 423 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d)(holding it was proper to introduce character evidence at the guilt-innocence phase as to both the accused’s reputation for being peaceful and law-abiding and for having a good reputation for being a moral person and for the safe and proper treatment of children); with Wilson v. State, 71 S.W.3d 346, 348 (Tex. Crim. App. 2002)(showing where an accused entered character evidence during the punishment phase of trial).

68. See Tex. R. Evid. 404(a)(1)(allowing the accused to enter character evidence or the accusing party to rebut the same).

69. Valdez v. State, 2 S.W.3d 518, 522 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)(dissenting opinion).

70. Id.

71. Tex. R. Evid. 404(a)(1), 405(a); see In the Matter of G.M.P., 909 S.W.2d 198, 209–210 (Tex. App.—Houston [14th Dist.] 1995, no pet.)(analyzing the 405(a) rule which allows cross-examination into relevant specific instances of conduct and the predicates for such cross-examination).

72. See Monarrez v. State, 2003 Tex. App. LEXIS 997, 11 (Tex. App.—Dallas 2003)(stating that the accused is not allowed to admit specific instances of conduct).

73. See Valdez v. State, 2 S.W.3d 518, 520–21 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)(holding that the question of whether the defendant was a non-pedophile was improper, not because it was in the negative, but because it referenced specific acts or the lack of acts rather than reputation or an opinion of defendant’s character); but see Brazelton v. State, 947 S.W.2d 644 (Tex. App.—Fort Worth 1997, no pet.)(allowing character evidence that the defendant did not use or sell drugs).

74. Tex. Code Crim. Proc. Ann. Art. 37.07 §3(a)(1)(allowing relevant past crimes and bad acts notwithstanding Texas Rule of Evidence 404 and 405 when shown beyond a reasonable doubt).

75. Id.

76. See Tex. Fam. Code Ann. §51.17(c)(stating that Article 37.07 of the Code of Criminal Procedure applies in a judicial proceeding).

77. See id. (Comment)(discussing the importance of the 2007 amendment).

 

 

Randy Wilson has been a sole practitioner in Abilene for more than 39 years, handling cases ranging from capital murder to DWI. He has handled eight capital cases, and none of his clients have received the death penalty. He is immediate past chair of Texas Criminal Defense Lawyers Educational Institute. Other offices held by Randy Wilson include chair of the Criminal Justice Section of the State Bar of Texas, president of Texas Criminal Defense Lawyers Association, secretary-treasurer of the Abilene Bar Association, and charter member of Big Country Criminal Defense Lawyers Association. He is a frequent speaker at seminars on a variety of topics and has been on the faculty of the Criminal Trial Advocacy Institute for 17 years. In addition, Randy has hosted a radio show in Abilene for 14 years called “You and the Law,” which allows members of the general public to receive free legal advice. Randy has been married to Jo Ann for 44 years and has two children and two grandchildren.

December 2010 Issue

/

DOWNLOAD PDF VERSION

Features

13 | Proposed Changes to the TCDLA Bylaws
20 | And Now for Something Different? – By Randy Wilson
28 | Crawford Flowchart and Step-by-Step Commentary – By Angela Moore, Ted Wood, Marshall Shelsey
45 | Defendant’s Ex Parte Motion for Appointment of Mental Retardation Expert for Mitigation Issues – By Mark D. Griffith

Columns

8 | President’s Message
10 | Executive Director’s Perspective
12 | Editor’s Comments
14 | Federal Corner
18 | Said & Done

Departments

5 | TCDLA Member Benefits
6 | Staff Directory
7 | CLE Seminars and Events
40 | Significant Decisions Report