Monroe v. State

864 S.W.2d 140, 1993 Tex. App. LEXIS 2685, 1993 WL 387519
CourtCourt of Appeals of Texas
DecidedOctober 5, 1993
Docket06-92-00109-CR
StatusPublished
Cited by8 cases

This text of 864 S.W.2d 140 (Monroe 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
Monroe v. State, 864 S.W.2d 140, 1993 Tex. App. LEXIS 2685, 1993 WL 387519 (Tex. Ct. App. 1993).

Opinions

OPINION

GRANT, Justice.

Michael Bennett Monroe appeals from a conviction for aggravated robbery. He pleaded guilty, and the jury assessed punishment at eighteen years’ incarceration. In his sole point of error, Monroe contends that the trial court erred by allowing the State to introduce improper reputation and character testimony.

BACKGROUND

On December 5, 1989, Monroe robbed a Circle K convenience store in Harris County. Dorothy Preyear, the store’s manager, testified that Monroe pointed a gun at her during the robbery and that she subsequently called the police. Sergeant Scott K. Boyce of the Houston Police Department, who responded and spoke with Preyear shortly after the robbery occurred, observed Monroe driving away from the crime scene. Officer Boyce followed Monroe until other police vehicles arrived and commenced a high-speed chase. The chase ended when the police executed a rolling roadblock. Monroe contended that he stopped only when the car ran out of gas. [142]*142Monroe further testified that the police fired their weapons while he was still in the ear and, when he exited the vehicle, the police continued to shoot at him. He also stated that at no time did he fire his weapon.

Officer Boyce testified that when the vehicles came to a stop, Monroe emerged with a firearm and pointed the weapon at a police vehicle. Officer Boyce then heard a gunshot and the sound of glass breaking. Boyce further stated that he and the other officers fired at Monroe for five to seven seconds until Monroe went down. Boyce testified that he saw Monroe fire his weapon twice during this exchange. Monroe was struck by five bullets. A trace metal test conducted on Monroe’s hand after his capture indicated that he had recently fired a weapon. Sergeant Wayne Wendel testified that Monroe admitted having fired his weapon.

At the punishment phase of the trial, the State questioned Sergeant Boyce regarding Monroe’s character and his reputation in the community. Boyce testified that, based on his conversations with people in the community, Monroe’s reputation was not that of a peaceful and law-abiding citizen. Boyce also stated that in his opinion Monroe “had very violent tendencies and was dangerous to basically anyone that would come into contact with him in the right set of circumstances.” Monroe contends that the trial court erred in permitting Sergeant Boyce to testify concerning his (Monroe’s) character.

During the punishment phase of the trial, the State also introduced evidence that Monroe was not a peaceful and law-abiding citizen by the testimony of seven people, each of whom met Monroe while they worked in a convenience store. The prosecutor began her examination of each of the former convenience store employees by asking them for basic biographic data. She then asked if they had come into contact with Monroe on a specific date and how they were employed at the time. She asked each of them to identify Monroe in the courtroom. She then asked each witness whether he or she had an opinion as to whether Michael Monroe was a peaceful and law-abiding citizen. Each of the witnesses then testified that in his or her opinion Monroe was not a peaceful and law-abiding citizen.

Monroe contends that, in. admitting the character testimony of the convenience store clerks, the trial court improperly admitted evidence of specific acts, namely unadjudicat-ed extraneous offenses, rather than just opinion testimony. Monroe suggests that the State attempted to inform the jury, however indirectly, that he had robbed at least seven other convenience stores prior to the robbery at issue in the present case. Monroe argues that the State demonstrated its motives to get unadjudicated offenses before the jury during the questioning of a psychiatrist by asking the witness, “Well, whose choice is it when he [Monroe] went in and robbed those stores?” The court sustained Monroe’s objection to this question, but Monroe did not follow up by asking that the jury be instructed to disregard the question and asking for a mistrial, as is required to preserve error. See Coe v. State, 683 S.W.2d 431, 436 (Tex.Crim.App.1984).

In the final argument, the prosecutor argued, “And how do we protect our victims? How do we protect Dorothy Preyear and other people that had strong opinions about whether he’s peaceful and law-abiding? You decide.” Monroe made no objection to this argument.

PRESERVING ERROR

The State contends that Monroe’s counsel failed to cite to the statement of facts properly in his brief, thus waiving any argument regarding the admission of the testimony.

In his brief, Monroe’s counsel excerpted the testimony of Sergeant Boyce and he cited in a footnote to the testimony of two of the convenience store clerks “by way of example.” Monroe’s counsel did not, however, cite to any other allegedly improper testimony in making his appellate argument. Based on this deficiency in the appellant’s brief, the State argues that this Court cannot properly analyze the admissibility of unidentified testimony, citing Tex.R.App.P. 74(d).

Rule 74(p) of the Texas Rules of Appellate Procedure, however, states that substantial [143]*143compliance with the dictates of Rule 74 is sufficient. In the present case, although Monroe’s counsel cited only to the testimony of two of the seven convenience store clerks, the testimony of all seven of the clerks appears in sequence in the statement of facts. It was therefore not difficult to locate the complained-of testimony. Monroe’s counsel substantially complied with Rule 74(d).

SERGEANT BOYCE’S TESTIMONY

The State also contends that Monroe failed to make a timely objection to the testimony of Sergeant Scott Boyce. Initially, counsel for Monroe objected to a question asking Sergeant Boyce about Monroe’s reputation for violence. The court instructed counsel to approach the bench, and this question was not answered. After the bench conference, the prosecutor asked the officer about Monroe’s reputation for being law abiding. The officer testified that it was bad. Then the prosecutor asked the officer if he had formed a personal opinion about Monroe’s “peacefulness and law-abidedness.” The officer opined that, “The suspect had very violent tendencies and was dangerous to basically anyone that would come in contact with him in the right set of circumstances.” At that point, Monroe’s counsel objected to the answer on the basis of Rule 405 of the Rules of Criminal Evidence. The court then' asked counsel to be more specific, and counsel stated that the question as well as the answer extended further than Rule 405 allowed.

Rule 404 of the Rules of Criminal Evidence essentially tells when character evidence is admissible. Rule 405 of the Rules of Criminal Evidence tells how such proof can be made. Counsel’s objection that the question and answer exceeded what was permissible under Rule 405 adequately informed the trial court of his complaint. While the answer may not have been totally responsive, or could have been expressed more succinctly, to say that one has a violent character is another way of saying that the person is not peaceful. At the punishment stage of the trial, the character of the defendant is an issue. Tex.R.Crim.Evid. 404(c). Whether a defendant is violent is a matter of importance to a jury that is required to assess punishment.

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Monroe v. State
864 S.W.2d 140 (Court of Appeals of Texas, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
864 S.W.2d 140, 1993 Tex. App. LEXIS 2685, 1993 WL 387519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monroe-v-state-texapp-1993.