House v. State

909 S.W.2d 214, 1995 Tex. App. LEXIS 2375, 1995 WL 571826

• Court: Court of Appeals of Texas
• Decided: September 28, 1995
• Docket: 14-92-01106-CR
• Status: Published

Opinions

MAJORITY OPINION

EDELMAN, Justice.

Wendell B. House appeals his conviction for involuntary manslaughter on the grounds that: (1) evidence of extraneous offenses was improperly admitted; (2) other prosecutors were allowed to testify as reputation witnesses; and (3) the State did not establish that its reputation witnesses learned of appellant’s reputation from people in appellant’s community. We affirm.

On May 1,1991, James Ebert informed his friend and neighbor, Nathan McLaren, that Don Miles was going to pay him $1,500.00 to burn down appellant’s custom automobile business. Ebert asked McLaren if he would help, but McLaren refused. About two weeks later, Ebert confirmed to McLaren that he burned down the business.

On June 15, 1991, appellant learned that Ebert started the fire. Ebert and McLaren decided to turn Miles in, and split the reward money appellant was offering for information. McLaren met with appellant, and told him that Miles paid Ebert to start the fire. He asked appellant to inform the police about Miles, but not Ebert. Appellant refused.

On July 22,1991, Ebert went to appellant’s used car lot. Ebert and appellant got into a fight, which ended in Ebert being fatally shot. Appellant was charged with and convicted of involuntary manslaughter, and the jury assessed punishment at twelve years imprisonment.

In the first two of his thirteen points of error, appellant argues that the State’s introduction of extraneous offense evidence was improper impeachment on a collateral issue.

In the prosecutor’s cross-examination of appellant concerning the reason Miles would want appellant’s business burned down, the following exchange occurred:

Q: Isn’t the real reason you knew Donald Lee Miles was involved and you all of a sudden saw the picture clear up because you were involved with Donald Lee Miles in the cocaine running business. Isn’t that the reason?

A: No, ma’am. That’s a lie.

[DEFENSE COUNSEL]: I object to this inflammatory extraneous allegation.

THE COURT: No, sir. Overruled.

Later in that cross-examination, the following exchange occurred:

Q: Have you ever heard or in anyway been involved in the cocaine dealing being done out of the Toy Store, sir?

A: Not none whatsoever. None at all. Q: Not at all?

A: Not at all.

[DEFENSE COUNSEL]: Your, Honor, I object to the prosecutor inserting inflammatory and extraneous information before the jury.

THE COURT: Denied. Overruled.

In order to preserve error for appellate review, a party must object as soon as the ground of objection becomes apparent. Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim.App.1990). If an objection is not made until after the question has been answered, and the defendant can show no legitimate justification for the delay, the objection is waived. Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App.1995). Furthermore, an objection is required every time inadmissible evidence is presented. Johnson, 803 S.W.2d at 291. Any error in allowing inadmissible evidence is cured when the same evidence comes in without objection elsewhere in trial. Id.

Here, appellant’s trial counsel did not object until after appellant answered the questions about his alleged drug trafficking. In the second exchange, appellant even answered twice before defense counsel objected. Furthermore, appellant later answered two similar questions without objection. Because appellant did not timely object to the questions complained of, and because similar evidence came in later without objection, appellant waived error on this contention.

However, even if error had been preserved, the questions were proper impeachment. A witness generally may not be impeached on a collateral matter which the cross-examining party would not be entitled to prove as part of his case. Ramirez v. State, 802 S.W.2d 674, 675 (Tex.Crim.App. 1990). However, “when an accused testifies gratuitously as to some matter that is irrelevant or collateral to the proceeding, as with any other witness he may be impeached by a showing that he has lied or is in error as to that matter.” Hammett v. State, 713 S.W.2d 102, 105 (Tex.Crim.App.1986).¹ The permissible inference “is that if the accused lied or was in error about a collateral matter (especially one implicating his aptitude for getting in trouble with the law), he is also likely to have lied or been in error in the balance of his testimony_” Id. at 105-106.²

In this case, the record does not clearly establish whether appellant’s relationship with Miles and their alleged drug-related activity may have been relevant, such as regarding motive, to whether he intentionally caused Ebert’s death. However, even if it were only collateral, appellant testified gratuitously on direct examination that he did not know why Miles, whom he had generously supported financially,³ would want to destroy appellant’s business. In response, the State sought to impeach appellant’s credibility by showing that he did know why Miles would want to do so. Appellant “opened the door” to this cross-examination by his testimony on direct examination. See Hammett, 713 S.W.2d at 105 n. 4. Thus, appellant’s first two points of error are overruled.

In his third and fourth points of error, appellant complains that the trial court erred by allowing two assistant district attorneys from the trial prosecutor’s office to testify about appellant’s character during the punishment phase. Appellant claims that this was prohibited by Tex.DisciplinaRY R.Prof.Conduct 3.08 (1989), reprinted in Tex.Gov’t Code Ann. tit. 2, subtit. G app. (Vernon Supp.1992) (State Bae Rules art. X, § 9).

Rule 3.08 provides that a lawyer shall generally not accept or continue employment in an adjudicatory proceeding if he believes that he may be a necessary witness to establish an essential fact on behalf of his client. In this context, the principal concern is the possible confusion for the trier of fact as to whether statements by an advocate-witness should be taken as evidence or argument. Tex.Disciplinary RJPROF.Conduct 3.08 cmt. 4 (1989).

However, Rule 3.08 is an ethical standard, and is not well suited as a standard for procedural disqualification. Tex.DisciplinARY R. PROF.Conduct 3.08 cmt. 9 (1989). In addition, it should not be used as a tactical weapon. Tex.DisciplinaRY R.PROF.Conduct 3.08 cmt. 10 (1989).

Moreover, there has been variation in the authoritative weight accorded to the disciplinary rules. Compare Pannell v. State, 666 S.W.2d 96, 98 (Tex.Crim.App.1984) (former disciplinary rules are not laws of the State; violation of those rules in obtaining evidence does not bar introduction of that evidence at trial; instead, ethical violations are to be dealt with administratively); with Warrilow v. Norrell, 791 S.W.2d 515, 519 (Tex.App.— Corpus Christi 1989, writ denied) (rules governing State Bar and Texas Rules of Civil Procedure each have same force and effect upon matters to which they relate).

Most importantly, however, Rule 3.08 operates to disqualify lawyers from acting as counsel, not as witnesses. We have neither been cited nor found any authority in which a lawyer was disallowed from testifying in a case by reason of Rule 3.08. Under these circumstances, we are without an adequate basis to conclude that the trial court erred in refusing to exclude testimony of the assistant district attorneys based on the alleged violation of Rule 3.08.⁴ Appellant’s third and fourth points of error are overruled.

In his fifth through thirteenth points of error, appellant claims that the trial court erred in allowing the testimony of eight of the thirteen law enforcement officers who testified as to appellant’s bad reputation, as provided in Tex.R.CRIM.Evid. 405.⁵ Appellant contends that the State failed to prove that those witnesses obtained their information from a cross-section of appellant’s community.

A reputation witness’ testimony must be based on discussion with others about the defendant, or on hearing others discuss the defendant’s reputation, and not just on personal knowledge. Turner v. State, 805 S.W.2d 423, 429 (Tex.Crim.App.1991). Discussions with other police officers are sufficient to qualify a witness on reputation. Id. However, reputation testimony may not be grounded solely on the officer’s knowledge of specific acts. Wagner v. State, 687 S.W.2d 303, 313-14 (Tex.Crim.App.1984).

In this case, each of the eight witnesses in question testified that appellant’s reputation for being a peaceful and law abiding citizen was bad. They further testified that they learned of this reputation by talking with other law enforcement officers from various agencies, as well as confidential informants. Thus, as in Turner, the reputation witnesses here established that they based their opinions on conversations with several people, and not just on their knowledge of a specific act, such as the charged crime. We find that this reputation testimony was properly admitted. Accordingly, appellants fifth through thirteenth points of error are overruled, and the judgment of the trial court is affirmed.

1 . However, the State cannot bootstrap its way to such impeachment by eliciting the offending statement on cross-examination, then contradicting it. Hammett, 713 S.W.2d at 105 n. 4.

2 . This rule has been applied as an exception to TexR.Crim.Evid. 608(b) and 609(a), restricting admission of prior unadjudicated extraneous offenses and convictions, respectively, where the accused creates a false impression of his law-abiding behavior. See, e.g., Delk v. State, 855 S.W.2d 700, 704 (Tex.Crim.App.1993), cert. denied, -U.S. -, 114 S.Ct. 481, 126 L.Ed.2d 432 (1993); Prescott v. State, 744 S.W.2d 128, 130-31 (Tex.Crim.App.1988). However, the exception has also been applied where the accused testifies about other collateral matters. See, e.g., Cunningham v. State, 815 S.W.2d 313, 319-20 (Tex.App. — Dallas 1991, no pet.) (by denying that he had tried to sell drugs to testifying police officer, appellant opened door to impeachment by officer's testimony concerning two prior unadjudicated drug offenses); Barrera v. State, 491 S.W.2d 879, 880-81 (Tex.Crim.App.1973) (by denying he had ever seen testifying police officer before, appellant opened door to impeachment by officer’s testimony of his prior arrest of appellant); Lester v. State, 498 S.W.2d 927, 930 (Tex. Crim.App.1973) (by testifying he had never had marijuana on his person, appellant opened door to impeachment by testimony of witness that he had smoked marijuana with appellant on night in question and had seen appellant in possession of marijuana on previous occasions).

3 . Appellant testified that: he gave Miles $5,000 to start an auto salvage shop for one-third ownership of the business; when Miles needed more money, appellant gave him an additional $8,000 in exchange for a security interest in the equipment; and, when the business failed, Miles turned over his equipment without anger, and even helped appellant move it. Consequently, appellant testified that he was "shocked” to learn that Miles was behind the fire.

4 . Nor would any such enror have been harmful since, as appellant noted, the testimony was merely cumulative.

5 . Rule 405 reads, in pertinent part:

(a) Reputation or Opinion. In all cases in which evidence of character or trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. Provided however that to be qualified to testify concerning the character or trait of character 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.