MacLeod v. State

700 S.W.2d 297, 1985 Tex. App. LEXIS 12838

• Court: Court of Appeals of Texas
• Decided: November 6, 1985
• Docket: No. 05-84-01118-CR
• Status: Published

Opinions

STEPHENS, Justice.

John Basil MacLeod appeals his conviction for aggravated sexual assault. The jury assessed his sentence at 99 years in the Texas Department of Corrections and a $10,000 fine. On appeal he raises several grounds of error contending (1) that reputation testimony was improperly admitted at the punishment stage of the trial, (2) that the indictment was fundamentally defective, and (3) that the jury charge was fundamentally defective in failing to define the term “act.” Finding no merit in appellant’s contentions we affirm the trial court’s judgment.

Appellant first contends the trial court erred in allowing two reputation witnesses to testify because they did not qualify. At the punishment stage of appellant’s trial the court held a hearing out of the jury’s presence and determined that both witnesses were qualified to testify about the appellant’s reputation. The record indicates both witnesses had discussed appellant’s reputation with the prosecutor, police officers and other civilians. In addition, one witness discussed appellant’s reputation with her brother, who had discussed appellant with a member of appellant’s family, and the other witnesses discussed appellant with her supervisor concerning appellant’s alleged passing of bad checks. We conclude that both witnesses were qualified.

A reputation witness’s testimony must be based on what the witness has heard from others or on hearing others discuss the appellant’s reputation and not on the witness’s personal knowledge or opinion of the appellant. Jackson v. State, 628 S.W.2d 446, 450 (Tex.Crim.App.1982). Such testimony is, by necessity, based on hearsay. Without the requirement that the witness discuss the person’s reputation with others, the witness’s testimony would be nothing more than an inadmissible opinion. Mitchell v. State, 524 S.W.2d 510, 513 (Tex.Cr.App.1975). While the discussion concerning the person’s reputation must be more extensive than just with people in the prosecutor’s office, discussion with peace officers in the defendant’s community alone is sufficient to qualify a witness on reputation. Jackson, 628 S.W.2d at 450. Although specific acts cannot be the sole basis of a witness’s knowledge of a person’s reputation, Wagner v. State, 687 S.W.2d 303, 313 (Tex.Crim.App.1985), op. on reh’g; it is not improper for a witness to discuss specific acts in determining what the person's reputation is in the community. Ables v. State, 519 S.W.2d 464, 467 (Tex.Crim.App.1975); Crawford v. State, 480 S.W.2d 724, 726 (Tex.Crim.App.1972).

In the absence of showing that the witnesses had no knowledge other than the facts of the case or that the witnesses had not spoken with members of the community concerning appellant’s reputation, no error is shown in the admission of the testimony. Braxton v. State, 528 S.W.2d 844, 846-47 (Tex.Crim.App.1975). Appellant’s contentions are without merit and are overruled.

Appellant next complains the indictment was fundamentally defective in failing to give notice of the specific acts for which his conviction was sought. Appellant filed no motion to quash and raised no objection at trial challenging the sufficiency of the indictment. In Ex parte Kirby, 626 S.W.2d 533, 534 (Tex.Crim.App.1981) the court noted:

Jurisdictional defects, which may be raised at any time, must be distinguished from defects requiring a motion to quash. When the indictment is challenged as not having provided the defendant with adequate notice of the acts alleged, the indictment is examined from the defendant’s viewpoint. Therefore, the issue is waived if not raised by motion because it is presumed that the indictment gives sufficient notice for preparation of a defense if he proceeds to trial without complaint. American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).

Thus, absent a motion to quash in the instant case, nothing is preserved for review. It is also noted that the appellant’s contention is contrary to the Court of Criminal Appeals holding that “an indictment for aggravated rape need not set out or describe the specific actions or deeds of the defendant which communicate the threats of serious bodily injury to the prosecutrix.” Brem v. State, 571 S.W.2d 314, 317 (Tex.Crim.App.1978). Accordingly, appellant’s contentions are overruled.

In his final ground of error, appellant argues that the jury charge was fundamentally defective in failing to define the term “act.” We disagree. There is no statutory definition of the term “act.” “In such circumstances, the question is whether the term has such a common and ordinary meaning that jurors can be fairly presumed to know and apply such meaning.” Phillips v. State, 597 S.W.2d 929, 937 (Tex.Crim.App.1980). We hold that there was no reversible error in the trial court’s failure to define the term “act.” Appellant’s final ground of error is overruled.

The judgment of the trial court is affirmed.

HOWELL, J., dissenting.