Moffett v. State

555 S.W.2d 437

• Court: Court of Criminal Appeals of Texas
• Decided: September 14, 1977
• Docket: 51841
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated robbery. After finding appellant guilty, the jury assessed his punishment at twelve years.

On March 11, 1974, at 8:30 a. m., the appellant entered a Kroger grocery store in Dallas. After shopping for approximately forty-five minutes he approached the checkout counter and pointed a gun at Vera Parrish, the cashier. Parrish responded to the appellant’s demands for money by placing the contents of the cash register and the office drawer in a paper bag. Appellant then left the store.

Appellant’s first contention is that the court erred in allowing the State to ask an improper “have your heard” question while cross-examining one of the appellant’s character witnesses at the punishment stage of the trial. Specifically, appellant contends that the question constituted an improper assertion of fact. We agree and reverse.

While cross-examining one of appellant’s character witnesses, the following occurred:

“Q [By Mr. Kinne, the prosecutor]

Have you heard that on September 18th of 1973, that he robbed a woman by the name of Francis Tindall, at the Globe Cleaners at 2430 North Haskell Avenue with a firearm?

“MR. GAY [Defense Counsel]: Your Honor, to which I object. That is a case which is pending trial in this court that the Prosecutor well knows the defendant has entered a plea of not guilty on, and has demanded a trial and is not, has not been adjudicated, and will be adjudicated at a future date by another jury and is prejudicial that it be brought up before the jury at this time.

* * * * * *

“THE COURT: Overrule the objection.

“MR. GAY: Your honor, note my exception. I don’t believe that the Prosecutor — that it is fair that he question this witness about a case which is pending trial, and to state it in terms that he has committed a robbery, when has [sic] not been convicted of it and has not even been given a trial on the case yet.

“THE COURT: What is your objection? It is not clear.

“MR. GAY: My objection is that it is an extraneous offense, that it is prejudicial. It is highly prejudicial and inflammatory, and the sole purpose of putting it before the jury is to create an innuendo Mr. Moffett has committed another robbery, which he has not been tried for and has not been convicted of.

“THE COURT: Overrule your objection.”

In Brown v. State, 477 S.W.2d 617, 619 (Tex.Cr.App.1972), this Court stated the rule for cross-examining character witnesses:

“The general rule is that, as part of its cross-examination, the State is permitted to ask the character witness if he has heard of a specific act of misconduct. However, the State may not ask whether the witness had personal knowledge of the act, nor may the question be framed so as to imply that the act has actually been committed (footnote omitted), (emphasis added)

In this case the prosecutor’s question, through its structure and excessive detail, clearly implied that the act had actually occurred. The question is similar to those held to be improper in Webber v. State, 472 S.W.2d 136 (Tex.Cr.App.1971); Pitcock v. State, 168 Tex.Cr.R. 204, 324 S.W.2d 855 (1959); and Wharton v. State, 157 Tex.Cr.R. 326, 248 S.W.2d 739 (1952).

In Webber, the question was, “have you heard that Mr. Webber was expelled from Baylor University, when he was caught shoplifting?” 472 S.W.2d, at 137.

In Pitcock, the questions were, “Have your heard during your discussions there about this boy’s reputation, about the trouble that he had concerning a DWI conviction in Stephens County in 1953?’ and “Have you heard them discuss the trouble that he was in in 1951 concerning a DWI conviction in Taylor County, Texas?” and “Have you ever heard during these discussions anything concerning the trouble that the defendant was in Wayne Pitcock in 1953 concerning a DWI conviction in Stephens County?” 324 S.W.2d, at 856 (emphasis in cited opinion).

In Wharton, the first improper question was, “Have you heard that he is under another indictment for rape in a separate case on a separate woman that occurred eight days after this one?” 248 S.W.2d, at 740 (emphasis in cited opinion). The prosecutor then asked two other witnesses virtually the same question, substituting only the phrase, “that happened eight days after [the] one he is being tried for.” Id.

The question in this case was, “Have you heard that on September the 18th of 1973, that he robbed a woman by the name of Francis Tindall at the Globe Cleaners at 2403 North Haskell Avenue with a firearm?” (emphasis added)

In each of these cases, including the one before us, the prosecutor properly began his question, “Have you heard,” but then clearly implied by his choice of words that the incident in fact took place.

All of these cases, including those relied upon by the dissent, make it clear that the rule should look to the implication of the question rather than to the form alone. The dissenting opinion would expressly elevate form over substance. Yet the correct rule is that the question may not imply fact. The dissenters’ “form rule” is a derivative rule of thumb; it is not the underlying rule of law.

As this Court said in Wharton,

“The privilege of cross-examining a character witness should not be utilized as a vehicle to prove that the defendant is a criminal generally, or that he has been guilty of committing another offense.” Id., at 740.

See also, Art. 38.29, V.A.C.C.P.

The judgment is reversed and the cause remanded.