Randy Wilson

Randy Wilson has practiced criminal defense for over 50 years. He is a past president of TCDLA, past chair of TCDLEI, and Sr. past chair of criminal justice section of the State Bar of Texas. Wilson has also been a faculty member of Tim Evens Criminal Trial College over 29 years. He is a partner in the law offices of Randy Wilson & Kristin Postell.

Court Appointed Attorneys are “Cop Out” Attorneys

In my fifty plus years of practicing criminal defense, I have heard the above title more times than I can count. And, to a certain extent, I agree, for several reasons. Let me begin by explaining that in State appointments, the attorney is faced with very marginal, and in many instances, well below adequate compensation for the time required in representing a court appointed client, due to the fees that are allowed by the judges and county commissioners. This is especially true in the smaller and more rural counties.  What is striking in this resolve is that the judges make their normal salaries for their work, the prosecutors make their normal salaries for their efforts, the bailiffs make their normal salaries for their employment, the court reporters make their normal salaries plus payment for their work on appeals, and the law enforcement officers make their normal salaries for their investigation and testimony. However, the defense attorney is required to perform his or her duties with substandard compensation, limited sources of funding, and often having said compensation/funding reduced by the judge when the case is disposed by trial or plea regardless of the amount of time an attorney has had to put into his representation.  Often times the court appointed attorney does not put the time and effort that should be devoted to a particular case, as a result of overhead costs, family expense, and in today’s society, repayment of student loans. However, I have seen some court appointed attorneys who “padded their vouchers,” others who do not even set up files, others who try to convince their client to plead guilty to keep from going to trial, and some who have no business proceeding to a jury trial due to lack of experience or fear of jury trials. This is not to say all court appointed attorneys fall into these categories. I have known many very fine and competent court appointed attorneys who are without any of these faults. I am writing this article to provide attorneys, who accept court appointments (State or Federal) with practical tips that will aid in practice and dispel the title of this article. I would encourage you as a defender of the “citizen accused,” to at least try them out.

State Appointments

  1. Go and see your new client in custody or have the client come to your office if they are on bond. In this regard, I suggest that you do so at times when it does not take away from your “paying clients” (i.e., on your way home at the end of the day; on your way to the office in early morning; on weekends, when it is less crowded, or at vacancies during your office hours).
  2. If you are unable to meet with your client in person, quickly send a letter to the client telling them when you will be there to visit or setting an appointment in your office at a “lax time”. Try not use “Zoom” or “phone” – you need to see your client in person and let them see you. You need to make your visit personal.
  3. At the initial visit, advise your client of the following:
    1. You are appointed but not to worry, you will do your best for them;
    2. You will go over the discovery with the client after you receive same and review it with the client. Also, explain that under Art. 39.14, you are unable to provide the client with copies of the discovery, but you can make sure they see all discovery, whether in custody or in your office;
    3. Explain the “attorney client privilege,” advising the client that you cannot discuss the case with anyone other than the client without written permission granted by the client;
    4. Have a good interview form to get the basics, and a brief description of the facts and advise the client that you will get more facts from them after you review the discovery;
    5. Make sure to get information about and contact information for your client’s family, employers, and possible witnesses. Let your client know that you are interested in taking care of them as your client, so this information may be helpful later;
    6. Advise your client of the particular charge(s) brought and the range of punishment facing the client. Back this up with a letter to your client, advising them of the charge(s) faced and the range of punishment for each charge;
    7. Inform the client that you do not accept collect phone calls from the jail due to the likelihood of the conversation being recorded. As a matter of fact, I routinely inform the client that I never use jail phones during visitation. I have, on several occasions, had something come up during representation that was discussed “privately” on a jail phone;
    8. Make sure to take the time to build trust between you and your client using your personality to instill assurance;
    9. Explain to the client that your staff will not discuss the case with a client or members of the client’s family. Explain that the client should only discuss the case with you or when you are present;
    10. Advise your client, if in custody, that you do not have time to come out to the jail “to hold their hand” and to see how they are doing. Explain that doing so would take away from the time that you need to spend on the case. If the client needs to talk to you about something, tell them to have a family member or friend call and let you know the client needs to talk to you and you will be out as soon as you can. I also usually take a postage paid envelope or two addressed to me and leave with the client, so the client can send me a message if necessary;
    11. If the client is not in custody advise the client to keep in touch with you about changes in reference to address, phone number, employment, or new charges filed that you may not be aware of, to ask you questions, and let you know about any new evidence that the client may discover;
    12. Let the client know that you care about them and the outcome of their case, using your own method of doing so;
    13. Advise your client that they will be sent copies of every document filed in the case and follow through by sending it to them (mail from an attorney is a “status symbol” with inmates. And, other inmates will often tell your client, “I don’t get these from my court appointed attorney, and I only see my attorney when I get to court”). If the client is not in custody, send them to their mailing address or email address;
    14. I also recommend that in the first visit you express the seriousness of the offense and that you do not have a “magic wand” to make everything go away. Explain that criminal cases are based on facts. An attorney cannot change facts, but in some instances the attorney can manipulate these facts to benefit the client but you are not in a position yet to make an evaluation of what the ultimate result may be at this time. Also, explain that you may or may not be able to manipulate them (i.e., you may be limited to damage control);
    15. Explain that after you review the discovery, and investigate the facts provided by both your client and the prosecution, you should be able to advise them on what options are available. Advise the client that they will have to make a decision on what option they decide to take. As long as a client is willing to accept the risks involved in any option, you are ready, willing, and able to give your very best to try to make it happen. But facts are facts, and the client’s criminal history always plays a part in the ultimate result in the client’s case so be sure to explain any risks that there may be.
  1. When you get a copy of the indictment or complaint and information make sure to send a copy of the same to your client and tell them to make sure that these papers, along with any other papers you send the client, are important and the client should keep them;
  2. Another situation that will help you offset your time is to file a motion for appointment of an investigator. The investigator can perform many tasks for you. If you prepare your motion properly most judges will allow you some funds to do so. If you need more funding, file a motion for it. In this regard, make sure your client knows you have hired an investigator and introduce them to your client;
  3. While your client is sitting in jail waiting for things to happen, or out on bond, I suggest that you use a form letter, and advise them either the present status of the case OR inform the client that you are still working on the case but have nothing of any importance to tell them at this time. I recommend that you do this at least once per month;
  4. Review the discovery as quickly as you can. It’s often very difficult for me to do it during the day at the office, so I do it early in the morning or after 5 p.m. when not faced with the interruptions by phone, secretaries, or “drop-in clients”. Take notes, highlight important issues while reviewing, and keep them in your file;
  5. As quickly as possible, meet with the prosecutor and get a recommendation for a plea. I have learned there is a lot of psychology involved in dealing with prosecutors, so you have to know how to deal with a particular district attorney or their assistant. Often times, the first offer is just a starting place with your client’s case. Tell the prosecutor that you will present it to your client but don’t know how your client will respond as you just started on this case. Don’t put all your cards on the table at this point;
  6. After reviewing the discovery, getting the facts, witnesses for the client’s defense, and going over the discovery with the client, including the criminal history, then give the offer to your client, and back it up with a letter confirming that this is the “present offer” and advise the client that you will continue to negotiate if they so desire. Then the psychology aspect comes in. You have to know your prosecutor and how to negotiate at this point. Only lay your “cards” out as a last resort, and even then, be very careful using intimation rather than hard facts, which can give the prosecutor time to prepare and fix any problems;
  7. Do not overlook preparing for “punishment”. So many times, in my past 50 plus years of practice, there was no way to win the battle over guilt and innocence. However, I have been able to win the war with community supervision or a much lower sentence than the plea-offer. Too often, lawyers focus just on guilt or innocence and put punishment on the back burner. Prosecutors generally do not focus on punishment, and you can use that to your advantage. Even to the point, don’t advise the prosecution or the court until after the indictment or complaint and information are read before the jury or judge, that you are entering a “guilty” plea and going to the jury or the court only for punishment. There are two advantages to doing this: (1) The prosecution still has to put on evidence to meet their burden of proof. But, it often times shortens or softens the facts, and (2) you are ready with your case in chief, “punishment”. If your client wants a trial, as long as they are willing to accept the risks, which you must set out for the client, you will have to go to trial and explain you will do your very best, but don’t expect a miracle. In this situation, always back your client’s decision up with a correspondence confirming their decision and setting out the risks involved. When a final offer is made, and your client accepts or rejects same you should confirm this in correspondence to your client stating the offer, their acceptance and/or rejection and if rejected, make sure you point out the risks to the client in this correspondence;
  8. You should also check the jail records to see if there are any “detainers” from other counties, states, parole, probation, and even Federal detainers as they have to be taken into consideration in your negotiations even to the point of contacting the prosecuting authority to find out what they are going to do and possibly even convince them make them go away and dismiss if your client is going to receive time or probation elsewhere;
  9. JAIL CHAINS: I am very opposed to this court dictated “docket clearing practice”. Too often, especially in misdemeanors, your clients will have detainers, parole violations, or pending felonies that could be affected by a conviction in misdemeanor court on any one or more of the aforementioned pending matters. The Courts want to reduce their docket and are not concerned with those other matters not in their court which generally affect your client adversely. It is not “justice.” I call it “house cleaning” by the Court. Your responsibility is to the client, not to the Court. I refuse to be a part of this process. You must look at all aspects. It is unfair to your client and the system to plead a client for time or probation if it will have a detrimental effect on another case facing them. You should not worry about the Judge not liking it at this point. Your client is more important than the court’s crowded docket;
  10. I also suggest in entering a plea, that you get your plea papers before the date the plea is going to be taken by the Court. Don’t go over this paperwork in the hall on the date of the plea hearing if possible. You should take the papers to your client, and go over each detail with them. I always have my client initial each item we discuss in “red ink” and have them sign each document in “red ink”. The judges love it, because no one else does this and you have proof that it was covered at the time it was signed.

These are just a few suggestions that will assist you in your client relationship and the Court and rebut the public’s concept of “court appointed attorneys are cop out attorneys.”  You are documenting your services and communicating with your client. In many instances, the family and your client will aid in establishing trust in you, too.  I have even had clients at the plea hearing thank the Court for appointing me to represent them. I have found that when you do these things, it will result in future referrals from the client and their family and friends. The compensation paid for your services will be offset by your efforts for the client and satisfaction that you have done your very best.

A final “caveat,” if you are afraid of a jury trial, or if you are worried about making a particular judge angry, don’t take court appointments. You are an advocate for your client, and you have a duty to them. You should not worry that if you make a judge angry you will not get more appointments. Your responsibility is to your client, not to the judge.

Federal Appointments

The foregoing also applies in most Federal court appointments. Many attorneys express a fear or hesitation in taking Federal appointments. Those fears and reservations are not well founded. There is a learning curve, but it is not difficult and through the “CJA” there is unlimited assistance from the Public Defenders Offices as well as webinars, forms, and manuals available to you. In addition, the fees paid by Federal appointments far surpass those paid for State appointments. You will be paid at an hourly rate for your time and reimbursed for expenses at a reasonable rate. Talk with other attorneys who take Federal appointments including the Public Defenders. They are especially helpful. You have to get “acclimated” to Federal practice. It is not difficult but it can actually be profitable. Your voucher is kept online, and when you complete your representation, you literally punch a few buttons and submit your voucher to the Court. It is rare that a Federal Judge cuts your fees, and the Federal judge will almost never will cut your reasonable expenses, even postage. In non-capital cases in the Northern and Western Districts where I practice, the budget amounts have a limit which exceeds for services $10,000.00 on a case not including expenses. In revocations of “supervised release” the budget limit is approximately $2,500.00. If you are not taking Federal appointments, they are definitely worth considering.

For those of you who do accept Federal appointments, here are some additional tips which I believe will assist you:

  1. Unlike in state court, “jail chains” do not apply. Often, in Federal appointments your client is not in the same city or town as your office. You will have to travel to visit your client. The initial visit should be “in person”. You have to instill trust with you by the client. I have heard numerous complaints by clients that the only time they are able to visit in person with their attorney is at the courthouse. The rest of the time is by phone or “Zoom”. You need to be “face to face” for both you and your client, and be able to make eye contact with them;
  2. Obviously, you can’t go to the jury for punishment in a Federal case. However, you should start working on punishment from the very beginning by getting information from your client on family, friends, employers, religion, and the community in which your client lives;
  3. In that regard, it has been my experience that you have to deal with U.S. Probation Officers who compose the Presentence Report (PSR). I got a form from one Pretrial Release Officer, which is very helpful in representing the client. One would think that the officers would be fair and even in the report. This is generally not true. Most of the time the “bad” is emphasized and the “good” is merely mentioned, or the report says information requested “No reply”. Remember, they get their information from the Government, and all relevant conduct is used in computing the “Base Offense Level” to increase the “guidelines”. The officers will go to great lengths to emphasize the bad conduct and the “ghost dope” when they can. I have also found on more than one occasion when the PSR reveals “No reply”, that the person, employer, or character reference were never contacted. I always recommend filing objections to the PSR when any of this occurs;
  4. Another matter along these same lines has to do with what I call “character letters” and also psychological or psychiatric evaluations. The officers will tell you that these will not be attached to the PSR. When I respond to the PSR I object and attach them as exhibits that the Court should take into consideration. Additionally, I always file a Sentencing Memorandum and again attach them as Exhibits knowing that at least I have provided them for the Court and his “briefing clerk” to consider;
  5. Always prepare your client for the PSR interview. I do this by requesting the PSR Interview Form from the Probation Officer well before the interview. I then take it to my client and we fill it out as best we can. I then forward the form to the Probation Officer before the interview. There are three reasons to do this: (1) it shortens the interview because the Probation Officer just has to fill in the blanks (2) you learn many things when filling it out which may be useful, and (3) you are giving a preview to your client of the interview and instructing the client on when and how to respond to the questions posed by the Probation Officer;
  6. THE PSR INTERVIEW: Always advise the Probation Officer that you want and will be physically present at the time of the interview. Don’t just be in on a “3-way call”. You need to be present and follow along with the form you have helped your client fill out. This too, will make your client trust you even more, and you are controlling the interview, not the Probation Officer;
  7. I have found that the Judges in Federal Court (U.S. Magistrates and U.S. District Court Judges) for the most part appreciate the time and effort that you put into a case. In my personal experience, I have even been complimented by some judges for my efforts in the case by the Court.
  8. In the Northern and Western Districts where I practice, we are allowed $900.00 for an expert or an investigator without first gaining permission of the Court. If additional funds are needed, you can apply “ex parte” for additional funds for an investigator or expert by filling out the proper CJA form, articulating the need, the cost, and the name of the expert or investigator. I have never been turned down by the Court. This should be utilized by you. It can reduce the amount of time or travel that you have to spend “behind the windshield” or waiting at the jail. And the judges appreciate the “cost saving”. Take your investigator with you to visit your client, introduce them, and explain that they now have two people working on the case and the client should treat them as if it were you in their dealings;
  9. Document all your meetings, discussions, and communications with the prosecutors, the courtroom deputies, the holding facilities, and the Court and place that document in your file. This is easily done through emails, correspondence, and documenting your voucher;
  10. Discovery in Federal cases is often lengthy and detailed. I have had several cases with more than 1TB of printed data, videos, photographs, recordings, etc. I presently have a case that involves 5 six-inch binders plus flash drives of videos, photos, and recordings. You have a duty to go through it all. I suggest that you do so outside of office hours, and take notes. It can be tedious and time consuming, but in order to properly represent your client you need to have all the knowledge available concerning your client. Be sure to charge for your time on the voucher;
  11. Keep a good working relationship and communication with the Courtroom Deputy. These individuals can save you time and expense. Always thank them for their assistance whether in person or by email. They are quite busy, but I have found that they understand matters such as conflicts in scheduling, appointments, and general assistance. I have even sent letters to their supervisors telling how much I appreciate their hard work and assistance. You would be amazed at the cooperation and consideration you can achieve by doing so;

I could go on and on with several other matters but I consider most of the foregoing are interchangeable between Federal and State appointments. The bottom line here is that you have an obligation to represent your client to the best of your ability. If you are not comfortable trying cases in federal court, then get some experience by sitting second chair. You need to see the prosecution you will be facing in the courtroom, the judge in the courtroom, and the particular way that voir dire is conducted by that particular Court. If you were a coach of a football or baseball team you would want to know how the opposing team members perform. The same concept should be followed if you are proceeding to trial whether before a jury or the bench and whether in state or federal court. Talk to other attorneys who practice before that Court, ask questions and insight of them to help you prepare for the trial. Scouting in such a manner has proven invaluable to assist me in preparing for trial.

Conclusion

I firmly believe that if you are going to take court appointments you should be ready, willing, and able to go to trial if that’s what your client wants. Advise your client of the risks involved, and if the client persists, it is their liberty that is at risk. In my experience, I have been involved in representing clients, I have tried cases that were absolute losers, and had so advised my client prior to trial. I have documented this for post-conviction attacks. Every once in a while, “you catch lightening in a jar” and win one or even get a lesser sentence than was involved in the plea offer. These kind of cases allow you to think outside the box and try new approaches or arguments which makes the trial exciting to you and your client. I actually got a two-word verdict in a Possession of Methamphetamine case involving a client who had more than 50 prior arrests. My motto is:  “I try to treat a client the way I would want to be treated were I the client and not the attorney.”

So You Want to Be a Criminal Defense Attorney

For the past 43-plus years, each morning I have gone to work as an attorney licensed by the State Bar of Texas. For the first 5 or so years, I worked for law firms, trying cases of many different types both criminal and civil. I was fortunate to have practiced during a time when the Constitutions of the both Texas and the United States protected our fellow citizens, both under criminal and civil jurisdictions. This was back in the time when courts were governed by the law and not by political influence or the judge’s concerns about being re-elected. It was a time when judges were judges because they either just wanted to be a judge or they felt an obligation to serve. But not only has the attitude of judges changed; so have the attitudes of a large portion of attorneys. With the proliferation of attorneys having come into the practice of law, the costs of operating a law office or law firm, the costs of advertising, and the lack of compassion have all crept into the practice of law—it appears that being a lawyer has degenerated from a profession to a business. Many attorneys today are more concerned with these matters than with providing the services that we all have sworn to do when we received our licenses.

I have been just as guilty as any of them in these areas, and even today often struggle within myself to “take up the sword” to defend or attack the injustices that many people face from the government or their fellow man. Having tried more cases than I can count in my career, I have noticed that today it is not about justice but about winning or losing. Seeing two prosecutors do a “high five” when the jury answered the three questions in the affirmative in a death penalty case, prosecutors who conceal exculpatory or mitigating evidence in a criminal case, and the attitude of “winning at all costs” have become the norm in today’s courts. This goes even beyond the attorneys representing the government. Law enforcement officers who are untruthful or who lie to a suspect in order to gain a confession under the guise of “acceptable police procedures” are also very commonplace today.

This is not what our system of jurisprudence was founded upon or what it should be. The American system of justice is unique in the world both in the past and present. Our court system was founded as the “great leveler” of all claims. Each person is to be treated equally under our law, regardless of race, creed, gender, or economic status. This is the only human institution that is supposed to treat a voter the same as the President, the banker the same as a welfare recipient, or an illiterate the same as a PhD. However, we all know that is not the case today in the sense that people would have us believe. Some people are more intelligent than others, some have better opportunities because of birthright or economic status, some people make better products than others, some lawyers are better lawyers than others, and some are born gifted beyond others in many respects as a musician, writer, or athlete.

I have found that within the ranks of criminal defense lawyers, you discover more attorneys who are concerned about their clients than among civil attorneys. You find attorneys who defend their client and his or her rights without regard to profit, “bottom line,” or public disfavor. They believe in zealously defending their and our system of jurisprudence. They are not infected by bias, prejudice, or social status and oftentimes financial gain. These lawyers are even willing to risk career in pursuit of justice—not being concerned about retribution from the court or society. Each of these individuals has the courage to proceed in a case, oftentimes knowing they are beaten, but begin anyway and see it through to the end. Some would call them idealists; I call them “heroes.”

They believe in the system and do not fear the court’s attitudes or rulings or public disfavor. If you have never tried a controversial case in a small jurisdiction where the public in that jurisdiction dislike, hate, and oftentimes chastise your client and you as well, it would be difficult for you to understand. If you have never represented a client where you and/or your family have received death threats, it would be difficult for you to understand. If you have never been involved in the defense of a client, where even your own family questions your representation and the effect it may have upon your family and friends, it would be difficult for you to understand. Your dedication to your client can, in some instances, place major stress on you, your family, your relationship with your family, your financial status, and your acceptance within your community. Often there is a feeling of isolation in your efforts to represent your client. It may be you and your client against the entire government, the general public, the media, and even sometimes your own family and friends. On the prosecution side, the prosecutors generally today have the general populace, media, and even sometimes your own family members questioning what you are doing and why.

Laymen in our society have difficulty understanding that just because you defend a person charged with a specific crime, that you don’t necessarily condone the commission or omission alleged against him or her. After almost 48 years of marriage, I have personally been subjected to all of these, and it is a miracle that I am still married. I attribute the longevity to my wife’s understanding of the commitment an attorney must make to represent the “citizen accused.” If you are going to call yourself a “criminal defense attorney,” you have to be willing to put these concerns aside and go forward without regard to same. You need to speak with your family, friends, and acquaintances, when confronted by them, from the standpoint of your duty and oath, and try to get them to understand but not to accept the responsibility which you have chosen to take up in the case. Don’t try to convince them, only try to get them to “walk in your shoes” and understand where you are coming from. Most times you will be unsuccessful in doing so. You are not trying to change the world. Your responsibility is to zealously defend your client to the best of your ability. And, in doing so, you must keep a high regard for all things moral and ethical regardless of the actions of the government attorney or the government’s agents and the pressures you may feel from family and friends.

You must also understand the stress that can be put not only upon you, but also upon your family and friends as a result of your actions in defending your client. I have had moderate success in telling them: “Look, my responsibility as an attorney representing my client is to present every legal defense available to my client, as well as require the government to meet their burden of proof beyond a reasonable doubt. I will present any viable defense regardless of my personal feelings about its true merit. I will never knowingly present testimony that is false, but will use true testimony to any benefit I can for my client. I was not put on this earth to assess judgment on the moral guilt or innocence of my client. I only deal with legal guilt under the law.”

There should never be any moral dilemma once you assume the duty to defend your client. I have defended people during my career that have committed crimes that go beyond description, without any remorse on my part, as I do not consider the issue of moral guilt. This is what each of us must do in every criminal case. If you possess such a dilemma, you should withdraw from the case or from the practice of handling the defense in criminal cases.

I learned a long time ago that being an idealist is perfectly acceptable, as long as you are a confirmed realist about your case. I have tried many cases that I had little or no chance of winning. But as long as my client knew the risks involved and accepted those risks, I gave it everything that I had in his or her defense. Not one of us likes losing, but it is not about winning and losing. It is about justice. What is just is not always right, and conversely what is right is not always just. We as criminal defense lawyers must strive for justice in every case. We must communicate the good and the bad facts to our clients. We should advise the client of the risks involved and satisfy ourselves that the client understands and accepts those risks when he or she makes the decision concerning trial or plea bargain. It is the client’s decision. Just make sure your client understands the risks involved and the consequences of his or her decision. It is his or her liberty that is in jeopardy—not yours. If your client has knowledge of and understands these risks and consequences, his decision should not affect you or his defense.

You must be willing to accept and deal with the foregoing discussion in order to be a criminal defense attorney. It is not easy, and at times the stress may seem unbearable. But I have discovered, by doing so, I am able to look in the mirror at myself without reservation and devote my personal beliefs and desires to my family and friends. I would not trade it for any amount of social status, money, or public admiration. I am a criminal defense attorney, the last bastion of protection for the citizen accused against the onslaught of government persecution, injustice, bias, prejudice, and ignorance faced by my client.

A number of years ago, I wrote the following, which may or may not mean anything to anyone but me. However, I pass it on hoping that it may assist you in your pursuit of being a criminal defense attorney.

THE ADVOCATE

With head held high
Armed with wit and knowledge
He attempts to defend
His fellow man without regard
To the consequences of his actions.
He receives little appreciation
From those around him,
But continues his fight
Against intolerance and the unscrupulous.
Often he sacrifices his personal goals and desires
To protect his client
From those trying to deprive his liberty.
His beleaguered figure
Oft marred from previous battles,
But nevertheless ever striving
To protect the rights of the citizen accused
From the injustices of mankind,
The government and its impersonal edicts.
His weapons,
His word, his ingenuity, wit and intelligence
Always armed,
Ever ready
For the defense of his clients.

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.