Mehaffey v. State

650 S.W.2d 851, 1982 Tex. App. LEXIS 4973
CourtCourt of Appeals of Texas
DecidedAugust 12, 1982
DocketNo. A14-81-370-CR
StatusPublished
Cited by1 cases

This text of 650 S.W.2d 851 (Mehaffey 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
Mehaffey v. State, 650 S.W.2d 851, 1982 Tex. App. LEXIS 4973 (Tex. Ct. App. 1982).

Opinion

OPINION

PRICE, Justice.

This is an appeal from a conviction for attempted murder. Trial was to a jury who found the appellant guilty and assessed her punishment at ten years incarceration. Appellant does not contest the sufficiency of the evidence. Appellant asserts two grounds of error relating to the admissibility of evidence on the reputation of the complainant for truth and veracity, and the admissibility of the conclusion or opinion of a police officer on conflicting statements of appellant made while under arrest. We sustain both grounds of error urged by appellant and accordingly reverse and remand.

In ground of error number one appellant asserts that the trial court erred [852]*852in permitting the State to present testimony that the complainant’s reputation for truth and veracity was good when he had not been impeached and neither his character nor his reputation for truth and veracity had been placed in issue by appellant. In the instant case both the State and appellant agree that the crucial issue is the interpretation of the evidence, namely whether the complainant was impeached by appellant on the basis of a prior inconsistent statement, since they do not dispute or argue the rule for admitting such testimony. The general rule for admitting evidence of one’s reputation for truth and veracity is that such is inadmissible when the evidence that antedates it is merely contradictory. Stewart v. State, 587 S.W.2d 148 (Tex.Cr.App.1979) The rule is clearly stated in Wallace v. State, 501 S.W.2d 883 (Tex.Cr.App.1973):

In Matthews v. State, 80 Tex.Cr.R. 177, 189 S.W. 491, this Court, in sustaining the trial court’s refusal to permit defendant to prove by two witnesses his good reputation for truth and veracity, said: “The rule is well established that, if the State had attacked his general reputation for truth and veracity by any witness, or had attempted to impeach him by proving contradictory statements, then he would have been permitted to have introduced such proof; but, until such contingency arises, the fact that he gives testimony disputing that offered by the State would make no such testimony admissible.” [Citations omitted]

However, where a witness has been impeached by a prior inconsistent statement or his character trait or reputation has been placed in issue, evidence as to his reputation in a community for truth and veracity is admissible. Stewart v. State, supra at 154.

In the instant case the State offered the testimony of seven witnesses that the complainant’s reputation for truth and veracity was good. Appellant timely objected to this testimony on the basis that no evidence was before the court except contradictory evidence and therefore, it was impermissible to bolster the testimony of the witness by proof of his good reputation for truth and veracity. At trial the State contended the good reputation evidence was admissible because the complainant’s credibility and character had been attacked: . The State’s position is the defendant herself by her own testimony called the defendant a liar, a fool, and that he was crazy.” On appeal, the State concedes that nothing in the record reflects that Ms. Me-haffey did in fact call the complainant a liar. Ms. Mehaffey did testify that some members of the news media said that complainant was a “fool” because he played in the press room secret recorded conversations with Ms. Mehaffey. The record also reflects that Ms. Mehaffey did depict the appellant as “crazy.” The circumstances of such depictions are discussed later in the opinion.

On appeal, however, the State relies principally on the theory that evidence of the good reputation of a witness for truth and veracity is admissible where the witness has been impeached by a prior inconsistent statement. The State points to three areas to demonstrate the alleged impeachment of the complainant by prior inconsistent statements, none of which is valid in our opinion. The first of these involves a diagram drawn by the complainant to show his path of escape from his assailant. Appellant had testified that the complainant had a .22 pistol with which he threatened to kill her before she shot him. The State contends that appellant implied in her cross-examination of the complainant regarding the diagram that the complainant was currently fabricating his testimony with reference to his path of flight from appellant’s house after he had been shot so as to remove any possibility of his having been near the location where a .22 pistol was recovered in a gutter. The State contends that appellant inferred that the complainant had testified differently on the point in a previous trial merely by the nature of the appellant’s questions about his previous testimony. The testimony the State relies on to show impeachment of complainant through a pri- or inconsistent statement is as follows:

MR. SKELTON: One item I noticed from the trial
[853]*853Q: Last time, you drew a diagram, correct, of where you ran? Is that true?
MR. TAYLOR:
A: Yes.
Q: I believe your testimony was at the previous hearing that you ran down the side of the street, is that correct?
A: I believe my testimony was that I don’t recall whether I ran down the side or down the street. I think at one point I was running down the side and at one point the street.
Q: As a matter of fact, you also know— do you know there were several guns in your area? Is that correct?
A: Only I heard that.
Q: You know that from the previous hearing?
A: I heard it. I wasn’t there.
Q: Did you notice certain guns were recovered from the gutter?
A: Yes.
Q: Did you also know with the certain guns recovered from the gutter they found some items of red thread? Is that correct?
A: I have been told that.
Q: Red thread like red on your pants? Isn’t that correct?
A: I have no idea.
Q: They are red pants?
A: Yes.
Q: And, you conveniently drew your pathway away from one of the guns recovered that contained some red particles?
A: I don’t think I conveniently drew my pathway away from anything up there.
Q: At least from your drawing, they are well away from the gutter, isn’t that correct?
A: The drawing is not too far away from the gutter.
Q: I noticed when you drew your flight, it was well away from the gutter.

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Cite This Page — Counsel Stack

Bluebook (online)
650 S.W.2d 851, 1982 Tex. App. LEXIS 4973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mehaffey-v-state-texapp-1982.