Valdez v. State

2 S.W.3d 518
Court of Appeals of Texas·Decided October 7, 1999·No. 14-97-00613-CR, 14-97-00616-CR, 14-97-00619-CR·Published·Cited by 43 cases

Opinions

MAJORITY OPINION

LESLIE BROCK YATES, Justice.

Appellant, Marcelino Valdez, appeals his conviction for three counts of aggravated sexual assault of a child. Appellant, who is related to the complainants by marriage, lived in the same Houston neighborhood as the three complainants and their family. Appellant and the boys’ mother were romantically involved. The three boys often stayed at appellant’s home and accompanied appellant along with their mother on trips. In August 1996, a Houston police officer received a complaint alleging the possible sexual assault of one of the boys. Initially the boys were hesitant to allege that appellant had assaulted them, however, subsequently, all three complained that appellant had sexually assaulted them.

Appellant was indicted for three counts of aggravated sexual assault of a child; he pleaded not guilty to the offense and true to one enhancement paragraph that, alleged a prior offense of theft. The jury found him guilty of all three offenses, and the trial court assessed punishment at forty-five years’ confinement in the Texas Department of Criminal Justice, Institutional Division, for each offense. In three points of error, appellant contends that the trial court erred in refusing to admit character evidence and in permitting improper jury argument. We affirm.

CHARACTER EVIDENCE

In his first two points of error, appellant complains that the trial court committed reversible error by refusing to allow appellant’s brother and neighbor to testify that appellant enjoyed a good reputation in the community for being a “non-pedophile” and having no sexual preference for young children. Appellant’s brother, who lived with the appellant during the time of the alleged abuse, testified on appellant’s behalf. During that testimony, appellant’s counsel asked appellant’s brother “[i]n the 41 years that you have known your brother, can you tell the jury, are you familiar with his reputation in the community for (sic) which he fives for being a pedophile or a non-pedophile? Are you familiar with his reputation?” The State objected that this was an improper question and the trial court sustained that objection. Later, after the jury had been excused, appellant’s counsel made a proffer of the brother’s response and requested that he be allowed to ask the same question of the appellant’s neighbor. Again, the judge refused to allow the testimony. Appellant asserts that the trial court erred in excluding this evidence.

An accused in a criminal case is allowed to introduce evidence of a specific good character trait to show that it is improbable that he committed the offense charged, where that character trait is relevant to the offense. See Tex.R. Evid. 404(a)(1); Thomas v. State, 669 S.W.2d 420, 423 (Tex.App.—Houston [1st Dist.] 1984, pet. ref'd). If evidence of a person’s character or character trait is admissible, proof may be made through reputation or opinion testimony. See Tex.R. Evid. 405(a). However, specific instances of conduct are inadmissible to show an inference that the accused did or did not commit the offense. See, e.g., Schmidt v. State, 449 S.W.2d 39, 40 (Tex.Crim.App.1969) (holding that while the defendant may offer reputation evidence on his law-abiding [520] character, he may not testify that he has never been in trouble); Garcia v. State, 819 S.W.2d 667, 668 (Tex.App.—Corpus Christi 1991, no pet.) (stating that the defendant was precluded from introducing specific incidents to support his claim of good character).

We review a trial court’s ruling on the admissibility of evidence under an abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g). A trial court’s ruling on the admissibility of evidence will be overturned only if the ruling is so clearly wrong that it lies outside the zone of reasonable disagreement. See id.

Appellant alleges that In the Matter of G.M.P., 909 S.W.2d 198 (Tex.App.—Houston [14 th Dist.] 1995, no pet. h.), controls the disposition of this case. In that case, this court held that a juvenile defendant accused of aggravated sexual assault of a child should have been allowed to present testimony that he had a reputation in the community for the “safe and moral treatment of children” because the character trait the defense sought to introduce was pertinent to the offense charged. See id. at 207. Here, undoubtedly, whether appellant is a “non-pedophile” is pertinent to the offense charged. However, we find that the trial court did not abuse its discretion in refusing to allow the defense to ask the proffered questions because, unlike a person’s reputation for the moral treatment of children, being a “non-pedophile” is not evidence of a person’s character or character trait.1

To allow the defense to ask whether an accused in a sexual assault case has a reputation for being a pedophile is akin to asking a witness in a murder case if the defendant has a reputation for being a murderer. The status of being a murderer, or in this case a pedophile, is not a “character trait.” In a murder case, the accused’s reputation for peacefulness, or non-aggressive behavior, is the appropriate inquiry.2 Here, the defense did not seek to establish evidence of a specific good character trait, rather, the defense sought to show that the accused was not known to have committed the type of crime for which he was charged in the past. This is an impermissible attempt to put on evidence of specific instances of good conduct to support the inference that it is unlikely the accused would have engaged in the criminal conduct charged. We see no appreciable difference between the question asked in the instant case and the question found to be improper in Schmidt, 449 S.W.2d at 40. In Schmidt, the defendant, who was charged with assaulting a police officer, was precluded from answering the following question:

[521] Q: Now, prior to the — to September the 10 th of 1968, had you ever had any trouble with any law enforcement officer?

Id. The Court of Criminal Appeals held that while a defendant may introduce evidence of his good character to show that it was improbable he committed the offense charged, the inquiry must be limited to his general reputation in the community. See id. However, merely framing the question in terms of an accused’s reputation for not having committed a specific act, as was done here, does not make the inquiry proper. Accordingly, the trial court did not abuse its discretion in refusing to allow the testimony, and we overrule appellant’s first two points of error.

IMPROPER ARGUMENT

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Valdez v. State, 2 S.W.3d 518 (Tex. Ct. App. 1999).

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