Moncrief v. State
Opinions
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
A jury found appellant guilty of murder in killing another by shooting him with a shotgun; the trial court assessed punishment at confinement for a term of thirty years.
Sufficiency of the evidence is not challenged. To indicate the factual basis for his contentions it is enough to say that through the testimony of one Joey Deaton the State proved appellant made several [631]*631incriminating statements concerning why he shot and killed the deceased, and appellant countered with testimony from many witnesses that Deaton’s reputation for truth and veracity was bad, and from several who knew him that appellant was not “a violent person;” the State then adduced on crossexamination of another defense witness that appellant’s reputation for being a law abiding citizen is bad.
On his direct appeal appellant complained that during trial on the merits the State was erroneously permitted to introduce over his objection testimony going to his bad reputation for being a peaceful and law abiding citizen before he had placed that character trait in issue. Finding that appellant failed to preserve his claim and that he had “opened the door” for the State to proffer the reputation testimony, the Beaumont Court of Appeals affirmed the judgment of conviction. Moncrief v. State, 690 S.W.2d 10 (Tex.App. — Beaumont 1984). We granted his petition to review the reasons given for that decision and, having done so, will affirm.
During crossexamination of Deaton counsel for appellant drew negative answers to his questions as to whether Dea-ton “had ever known [appellant] to be a violent person” or “to ever start any problems with anyone.” A witness for appellant, Bill Boutcher, also testified he did not “know [appellant] as a violent person” or “to be an aggressive person;” another, Ve-chel Renfro, said appellant’s “character [is] good.” 1 The State did not object.
Appellant also called Floyd Wright to impeach the credibility of Deaton by testifying that his reputation for truth and veracity is bad and such that he is not entitled to be believed under oath. On crossexamination, over objection, the State had Wright testify that he knew appellant’s reputation for being a peaceful and law abiding citizen, and then got his estimation of it, viz:
“As far as being law abiding [sic], probably not. Peaceful, I’ve never seen the boy cause no trouble.”
That testimony was received after what we perceive to be protest sufficient to inform the trial court and the prosecutor of grounds for it;2 the matter was therefore preserved for review. Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977). Accordingly, we turn to address appellant’s contention.
There is authority for the proposition that while an accused may introduce evidence of a relevant trait of character to suggest that it is improbable he committed the offense charged, only reputation testimony is permissible — personal opinion testimony is not admissible. Cases such as Ward v. State, 591 S.W.2d 810, 816 (Tex.Cr.App.1980) (Opinion on State’s motion for rehearing), and Smith v. State, 414 S.W.2d 659, 661 (Tex.Cr.App.1967), perpetuate that proposition.
An examination of the decisions cited in Ward and Smith will reveal that past failures to distinguish character from reputation, accused from deceased and nature of permissible questions on direct from impeachment on crossexamination probably led to a rejection of proof of a character trait by opinion testimony. For example, in support of its limitation of testimony offered to show good character of an accused, Smith cites the ancient case of Brownlee v. State, 13 Tex.App. 255 (Ct. App.1882), holding an inquiry as to “general character of the deceased” permitted under predecessor to former article 1258, P.C. 1925, “must be limited to the general [632]*632reputation of the person.” The holding was based primarily on a learned treatise the Court was wont to follow in which it was said, “ ‘Character’ ... is to be regarded as convertible with ‘reputation.’ ” Accord: Watson v. State, 156 Tex.Cr.R. 585, 244 S.W.2d 515, 516 (1951).
Professor Roy R. Ray strived mightily to set matters straight.
“It is everywhere agreed that a person’s moral character has probative value in determining his probable conduct. An accused may, therefore, introduce evidence of his good character to show that it is improbable that he did the act charged.”
Ray, Texas Law of Evidence (Third Edition) § 1492, 2 Texas Practice 169. Also, character (or reputation) may be a fact issue in a given case. Id., at 1501, p. 187ff.
“It should be kept in mind that ... there are three possible modes of proving character: (1) Personal opinion of witnesses who know the person. (2) Reputation of the person in the community. (3) Conduct of the person from which an inference may be drawn as to his actual disposition.”
Ray, op cit., § 1491, at 168.3
When appellant adduced testimony that Joey Deaton and Bill Boutcher had never known him to be “a violent person” or “an aggressive person” he was introducing opinion evidence as to a particular trait of character, and it was before the jury without objection.4 According to current reasoning what appellant did is acceptable. In that context, then, the prosecution was entitled to rebut the opinion testimony of Deaton and Renfro with testimony of Floyd Wright as to reputation of appellant for being “a peaceful and law-abiding citizen.”
Given that analysis, there was no error in overruling appellant’s objection to the question put to Wright, and thus the court of appeals reached the right result.
The judgment of the Beaumont Court of Appeals is affirmed.
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707 S.W.2d 630 (Moncrief v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.