Arnold v. State

636 S.W.2d 790, 1982 Tex. App. LEXIS 4993
CourtCourt of Appeals of Texas
DecidedJune 23, 1982
DocketNo. 09 81 142 CR
StatusPublished

This text of 636 S.W.2d 790 (Arnold v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arnold v. State, 636 S.W.2d 790, 1982 Tex. App. LEXIS 4993 (Tex. Ct. App. 1982).

Opinion

OPINION

KEITH, Justice.

Defendant was convicted of sexual abuse of a child as defined in Tex.Penal Code Ann. Sec. 21.10(a), and the jury fixed his punishment at the statutory maximum, confinement for twenty years and a fine of $10,000.

There is no challenge to the sufficiency of the evidence and there is no need to set out the sordid facts supporting the conviction.

[791]*791The single ground of error relates to testimony given by a federal probation parole officer, Frank Flanagan, as to appellant’s bad reputation. While the indictment contained an enhancement paragraph alleging that appellant had been convicted in the federal court in Youngstown, Ohio, of kidnapping, the State made no attempt to prove such fact at the punishment hearing. Instead, Flanagan was the only witness who gave testimony, and it was very short.

In the absence of the jury, the parties examined Flanagan to determine the admissibility of his testimony. It was shown at that time, while Flanagan knew appellant, presumably as a person in his charge, he had never been to Youngstown and had no knowledge of his general reputation in that community. The pertinent testimony is set out in the margin.1

The trial judge then took a turn at questioning the witness:

“THE COURT: (To the witness) Your opinion of reputation is based on things that you have heard said about the defendant in the community of Youngstown, Ohio, or is this based upon some written documents involving some prior legal problems he may have had?
“THE WITNESS: Your Honor, it’s based on written documents as to prior legal problems which are public information.”

At the conclusion of the hearing outside the presence of the jury, the trial judge expressed doubt as to the qualification of Flanagan to testify to reputation,2 but overruled appellant’s objection.3 In the presence of the jury, State’s counsel asked Flanagan if, while he had known appellant, he had come to know his general reputation “in the community in which he lived and resides for being a peaceful and law-abiding citizen.” The witness answered: “I have been provided with information with regard to his past reputation.” Appellant’s general objection was sustained.

However, State’s counsel continued:

“Q. Answer the question yes or no.
“A. Yes.
“Q. Is that reputation good or is it bad?
“A. It’s bad.”

Appellant made no objection to the ultimate answer nor did he seek any other relief through cross-examination or otherwise.

At first blush, it would appear that the hearsay objection was untenable because of the general rule expressed in Smith v. State, 162 Tex.Cr.R. 237, 283 S.W.2d 936, 938-939 (1955),

“One’s general reputation is what is generally said about him in the community in which he lives and is necessarily based upon hearsay.”

See also, 1A, Texas Practice, Law of Evidence § 1325, at 501 (Ray, 3d Ed. 1980).

But, in the context in which the question arises here, the hearsay objection has merit. Flanagan told the trial judge that his testimony was based “on written documents as to prior legal problems . ... ” Since the written documents do not appear in our record, we have no knowledge of the nature thereof. Obviously, whatever did appear there constituted statements made out of court which were offered for the truth thereof. As such, the testimony was [792]*792hearsay. Ex parte Martinez, 530 S.W.2d 578, 580 (Tex.Cr.App.1975), quoting language which now appears in Texas Practice, supra, Evidence § 781, at 2.

Hearsay evidence is not admissible even though no better evidence is to be obtained. Ex parte Thrash, 167 Tex.Cr.R. 409, 320 S.W.2d 357, 359 (1959). See also, Salas v. State, 403 S.W.2d 440 (Tex.Cr.App.1966), discussing the textbook definition of hearsay evidence.

State’s counsel argues that since reputation may not be based on personal knowledge, it is necessarily hearsay evidence. We agree. But, when counsel argues that Flanagan’s testimony was admissible under the rationale of Aguilar v. State, 444 S.W.2d 935, 938 (Tex.Cr.App.1969), we disagree. As noted in Aguilar, the reputation witness “testified that he had known appellant for some seven years and had discussed his reputation with others in Harris County.” Flanagan had never been to Youngstown nor did he say that he had discussed reputation with others in such city. All he had was a written document from some undisclosed source containing, according to Flanagan, statements pertaining to “prior legal problems.”

State’s counsel also contends that the Court in Aguilar, supra, “did not specifically negative (sic) the use of written information as a part of the basis of reputation testimony.” The statement is true; but there was no necessity for the Court to make such a holding. Officer McManess (in Aguilar) “had discussed [Appellant’s] reputation with others .... ”

Under the authorities herein discussed, the admission of Flanagan’s reputation testimony constituted error and we now turn to a consideration of the State’s alternative position that such error was harmless. In so doing, we readily subscribe to and agree with this statement taken from Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340, 345 (1972), that “ ‘[a] defendant is entitled to a fair trial but not a perfect one.’ ”

In considering the question of harmless error, the general rule is that a judgment will not be reversed because of a trial error which did not injure the defendant; rather, the question is whether there is a reasonable possibility that the incident complained of might have contributed to the conviction or the punishment assessed by the jury. 4 Teague, Texas Crim. Practice Guide § 90.06[2][e] (1982); Clemons v. State, 605 S.W.2d 567, 571 (Tex.Cr.App.1980).

We are of the opinion that since Flanagan had never discussed appellant’s reputation with any members of the Youngstown community, and was testifying from an unidentified written instrument relating to “two particular cases,” his testimony “concerning the accused’s reputation for being a peaceful and law abiding citizen would be nothing more than an inadmissible opinion.” Mitchell v. State, 524 S.W.2d 510, 513 (Tex.Cr.App.1975).

The error found in Mitchell was harmless because the inadmissible evidence was “extremely terse” and three other witnesses gave identical evidence without objection.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Harrington v. California
395 U.S. 250 (Supreme Court, 1969)
Schneble v. Florida
405 U.S. 427 (Supreme Court, 1972)
Clemons v. State
605 S.W.2d 567 (Court of Criminal Appeals of Texas, 1980)
Watson v. State
605 S.W.2d 877 (Court of Criminal Appeals of Texas, 1980)
Smith v. State
283 S.W.2d 936 (Court of Criminal Appeals of Texas, 1955)
Aguilar v. State
444 S.W.2d 935 (Court of Criminal Appeals of Texas, 1969)
Wallace v. State
501 S.W.2d 883 (Court of Criminal Appeals of Texas, 1973)
Jordan v. State
576 S.W.2d 825 (Court of Criminal Appeals of Texas, 1978)
Ex Parte Martinez
530 S.W.2d 578 (Court of Criminal Appeals of Texas, 1975)
Mitchell v. State
524 S.W.2d 510 (Court of Criminal Appeals of Texas, 1975)
Ex Parte Thrash
320 S.W.2d 357 (Court of Criminal Appeals of Texas, 1959)
Salas v. State
403 S.W.2d 440 (Court of Criminal Appeals of Texas, 1966)
Wilder v. State
583 S.W.2d 349 (Court of Criminal Appeals of Texas, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
636 S.W.2d 790, 1982 Tex. App. LEXIS 4993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnold-v-state-texapp-1982.