Henderson v. State
617 S.W.2d 697
Tex. Crim. App.
1981
Check Treatment

*1 HENDERSON, Appellant, Michael Texas, Appellee.

The STATE of

No. 60813. Texas, Appeals

Court of Criminal

Panel No. 2.

June Butcher, Worth, appel- Fort

Allan K. lant.

698 Curry,

Tim Atty., Dist. William Kane As and to three of the allegedly improp George Mackey, questions, Dist. er was Attys., objection Asst. there no Fort at Worth, Huttash, consequently nothing presented Robert State’s Atty., Aus- State, review. Sanchez v. tin, 589 for the 422 State. S.W.2d v. Cannon

(Tex.Cr.App.); 71 (Tex.Cr.App.). Appellant’s failure re to J., ONION, Before P. TOM G. DA- quest any further relief after his objection CLINTON, VIS and JJ. to one questions sustained, pre of the serves nothing for review. Smith v. OPINION v. Graham (Tex.Cr.App.); S.W.2d 6 State, With (Tex.Cr.App.). DAVIS, Judge. TOM G. regard of, to the complained fifth Appeal is taken from conviction for that during record reflects cross-exami robbery. finding appellant After guilty, nation, prosecutor appellant asked punishment years. assessed at five following question: “Q. sir, Okay, You recall. don’t in Octo- Appellant was of having convicted robbed ber of did fail to attend Edna Hancock in the parking lot of a K- 27th, 11th, 18th, 12th, 13th, 14th, Mart store in Arlington December 19th, 21st, 24th, 27th, of days 28th 1977. Hancock pushed to the pave- that month? ment on the parking lot. She suffered a “A. you saying Are compound I’m not fracture of the left arm and sev- you saying school or are did that I eral of her teeth were knocked out. not school? attend ground error, In his first of appellant Honor, “MR. TURNER: Your I’m charge contends the to the object going to to these of kind guilt phase or innocence is fundamen- questions. don’t think rele- it’s tally Specifically, points defective. he to vant.” portion the definitional of the charge in An objection to the admission evi of injury” which the term “bodily was defined specific dence must be must state include to death. This matter is raised for grounds objection, which, of failing first time appeal. in this objection will not be considered on appeal. Vela v. objection (Tex.Cr.App.). Where there is no to the Wilson v. charge In at 541 S.W.2d 174 only fundamental error will York App.), following objection was found appeal. considered general be too preserve alleged an error (Tex.Cr.App.). S.W.2d 936 The definition Honor, “Objection, review: Your “bodily Code, I can’t injury” in V.T.C.A. Penal see the relevancy questioning of this line of 1.07(a)(7), Sec. does include death. In in this case ...” Cumbie State (Tex.Cr.App.), 732, it was held the addition appeal, appellant urges In this the above “or term death” in the court’s while improper attempt was an alleged “bodily the indictment injury,” did impeach with “collateral deeds of miscon- present fundamental error. Under our duct,” truancy. ap- namely, We find that Cumbie, holding in no fundamental error is pellant’s at objection general trial was too present Appellant’s case. instant to inform the court basis of ground first of error is overruled. objection preserves nothing and thus Appellant’s ground review. second of error error, his ground In second is overruled. in allowing contends the court erred prosecutor improper error, five ask his fourth questions. He maintains erred in contends the court improper were improper question. because went to an into “collateral deeds of misconduct.” in the cross-examination (Tex.Cr.App.); Simpkins 607 S.W.2d 554 reputation witnesses at of one of (Tex.Cr.App.). Appellant 590 S.W.2d 129 punishment phase. main- improper tains the because error, appellant In this third of fact. assertion constituted questions quoted complains further asked of Adams on cross- phase, above which were During punishment *3 maintains Appellant L. the Reverend B. Adams. examination. called as a witness objection appellant’s court erred to repu- testified that witness questions questions. the peaceful law-abiding the He contends being tation a for cross-examination, witness on reputation cross-ex- good. citizen On asked was they because following improper Adams the amination were were the asked upon for which he was questions which com- based the offense now above, being tried. Adams was plains: As noted by during called as a witness “Q. Sir, anything you do know about punishment phase. which he has been convicted crime of in this courtroom? (Tex. 936 Wright In Cr.App.), improper held that it is I “A. than what read in the No more of a witness has knowledge to test the who paper. of a good reputation testified to the defend “Q. he you mugged know that a Did citi being peaceable, law-abiding for ant lady old seventy-five year out questions heard” by you zen “have parking lot? concerning for he alleged offense which “A. more than what read in the No being Although tried. paper. im Honor, Your I’m “MR. TURNER: proper, no error was shown and reversible object Mackey using to Mr. going to “... the answer of the stated particular offense that we are witness reflect what effect does not on the the of have on trial for basis robbery to in the offense referred questions this charac- upon reputation.” Id. appellant’s had ter witness. at 938. I will “THE COURT: overrule In Tex.Cr.R. 113 objection question.” to the last had the defendant been con- S.W.2d cross-examining reputation wit driving while intoxicated and victed ness, permitted to such the State is ask presented appeal a contention similar to specific witness if he has heard of act of There, now it was by appellant. that raised misconduct of the defendant. Pemberton v. stated: How (Tex.Cr.App.). ap- “Bill of No. 3 reveals that exception ever the is not to be framed so as witness one pellant as a Rut- had used imply actually to the act has been that land, appellant’s testified committed—an assertion truth of law-abiding a peaceable, as State, supra; Mof matter. Pemberton the county citizen after which good, (Tex.Cr.App.). fett v. upon attorney cross-ex- asked had not related objected amination if his evidence At to for the incident which specific questions prior to within the to a time act referred tried, to which the object asked that the of Adams. He did framed, county and the at- namely, yes, as witness answered had not heard torney if witness implying actually the act had been his reputa- as to quite a bit of discussion committed—an assertion truth Thus, Appellant’s objec- presented the contention tion since that time. matter. appends court tion was comport this of error does with overruled. exception the Nothing voiced at trial. said bill of point, this witness at presented review. Nelson v. answers of the See which shows that after the court had sum that the Court shall determine.” This appellant’s objection overruled county presented contention first time in witness, (his attorney then it appeal. said ‘And this reputation) all good any hasn’t been In Flores v. answered, means?’ to which witness App.), presented Court was with a con ‘Well, I have heard lot since that time.’ similar to tention that now raised and stat venturing dangerous The state was ed as follows: mentioned, particulars but agree “We cannot with con- appears that the witness advise did not tention. good prac- While it is considered whether he had heard had been tice enumerate in bad, we think the fails to bill probationary conditions reflect error which would call a rever- may impose probation if is recom- sal.” Id. at 181 and 182. mended the failure jury, to so *4 State, 362, also See Grizzell v. Tex.Cr.R. enumerate the said conditions is not Tex.Cr.App. 816; State, 298 S.W.2d Boone v. harmful to or the accused restrictive of 476, 638. under authority court’s the stat- ” ute .... Id. at 69. asked of Adams were State, (Tex. Kemner v. they See 589 S.W.2d 403 in that concerned offense Cr.App.); O’Neal v. 421 S.W.2d 391 appellant for which This tried. (Tex.Cr .App.). has asking Court held that the of an im question not proper will result in reversible Our review no reveals fundamental error unless obviously charge error in the punishment. harmful to the defendant. See Brem v. In the absence of an at State, 571 314 (Tex.Cr.App.); Ca precluded complaining from vender v. 547 S.W.2d 601 of appeal all but error fundamental in the App.). charge. York supra. v. We find charge present that the court’s case us, From the record before we cannot adequately protected appellant’s rights obviously conclude that and that he was thereby. not harmed Art. by improper questions harmed of 36.19, Appellant’s ground V.A.C.C.P. fifth Wright Adams. As in King, and an- of error without merit. swer of Adams did not reflect effect what robbery ques- offense to in the referred judgment is affirmed. upon appellant’s reputation tion had CLINTON, Judge, concurring. community. No reversible error is shown. Appellant’s ground third of error is over- the third of error ruled. gives continuing vitality a that some notion creates what would call error, In his fifth of “Catch-22.” The Reverend is asked what punishment contends the court’s says improper question, is an but failing jury was erroneous in to inform the asking does not constitute reversible all probation of the conditions of error of because “the answer Adams did not imposed could be in the event that robbery reflect effect the offense re- probat- recommended the sentence that upon to in the appel- ferred ed. Specifically, maintains the reputation lant’s in community.”1 court failed to inform the that a condi- probation of probationer tion was that the No, most not for certainly it did the sim- fine, could be “pay ordered to if one be ple reason the Reverend was not asked that assessed, and costs all court whether fine question. The was limited to inquiry “do not, sums, know,” be assessed or in one or several you heard.” The “have reparation any straightforward and make in ques- restitution rather answer to the Or, King (All empha- 1. as worded in or bad.” 133 Tex.Cr.R. had heard had been (1938), indicated.) 113 S.W.2d what he “whether sis is mine unless otherwise State, cited in n. more” than five observation. Boone v. was he did know “no tion appli 3, ultimately had read in the followed it because the paper presumably what he — testimony and newspaper report suspended “would let cation for sentence proceedings. into jury take consideration trial,” up to time of it reputation Now, just how can come about facts the of surely consider the would reflect “the answer witness” the sentence respect to which fense with on trial has on “what effect” offense sought suspended, to be accused? Unless (Tex.Cr.App. is to be briefed counsel to volun- giving a third 1973) quoted from nonresponsive surely an im- teer answer— answer there why reason put to act—someone must frame and proper Thus, King error. not show reversible did to draw designed the witness a strange rarely medicine concocted an answer as to his view of what- from him it unavailable I would make prescribed. ac- effect on ever the supply withdrawing it from the put completely question? Who is cused.2 precedent. judicial lies, my judgment, Therein Catch- permitted “obviously have-you-heard Is the to be An harmful” press improperly company on into an area entered not need the question does counsel, place? Or defense the first must additionally harmful answer to constitute error, pursue show reversible the matter? McNaulty asking error. reversible See he will be about whether what Since *5 concerning the ac- heard (1939). If the violates a 988-98 mugging lady a 75 in a year cused’s old law, rule of definition it is harmful bad,” King v. parking good lot “had been degree or the mere would not some State, supra, the seems selfevi- answer “improper.” When the trial be deemed even more to the ac- dent—and harmful demonstrably overruling a val errs in initially cused than the improper reversi objection, to determine whether id hand, by the State.4 the other posed On shown the Court ble error is I believe straight the witness answer with a should sur look to all the circumstances should face, just “good,” who on the that has rounding query, including the broad him? “guilty” going to believe said context, its calculat setting, particular Catch-22. nature, of rational likely reaction ed objective whatever factors jurors and other King authority State claims no subjective inferences characterize the bill of reflect saying exception failed to explicate nega- does not terse question. error and its whereas, Court, judgment frankly, Quite perceive I am how a insisted “The unable to newspaper contemporaneously progress people a transac- account of relative to the merits of trial proper of the the considera- affect evidence for tion is accused, considering rehearing jury.” “the collective that it is Presid- On second tion of Ray, opinion community,” Law of Evi- Judge ing “it is not Hawkins reiterated that 500, which opin- dence hardly 1A Practice parade § Texas permissible to public before the form, has had time much less to the offense ion of the relative throughout disseminated community. and discussed It seems to me which he is tried.” exactly bar would in the case at but, indeed, only permit require in order to 476, 196 3. In Boone v. 149 Tex.Cr.R. error. find reversible (1945) entertained a reasoning now is sound. line of I believe Stephens 4. As the Court remarked is, for the State offense on That trial as to utilize the (1935): contributing factor charge con- If the “.. . discussion bringing judgment “would be into the case the as could be used tained in indictment people regarding very which of the the case for showing reputation as man’s basis for that a party be a was on trial ... would ... [and] bad, law-abiding no man citizen was then means prove would be able community gener- State successfully show a was on could people that the law-abiding good reputation citizen.” as a disapproval,” ally viewed the offense with judgment, though, given my ex-

change quoted majority opinion, none testing

of the rules for error in overruling a

good objection improper have-you- to an

heard question play, is called into for as I

have already emphasized here “know”

was did the bare facts If, objection stated,

of the case. as the “using particular of-

fense” on trial “the basis have you witness, questions” to the character majority opinion fails to reveal con- question.

tent of such

When I squarely presented prepared am

to overrule as it failed to —insofar find Exception error Bill of 3No. because

“the witness did not advise whether what

he had heard had been or bad” —and

to disapprove of the few of King. followers

For now am content to concur in the

judgment of the Court.5 VILLARREAL, Jr., Appellant,

Jose A. *6 Texas, Appellee.

The STATE of

No. 66231. Appeals Texas,

Court of Criminal

Panel No. 1. 24,

June Pena, Edinburg, appellant.

L. Aron typifies again experience 5. This case once a certitude that Because has demonstrated have-you-heard question nowadays is an anachronism the witness comes give reputation testimony rarely “truly that creates more trouble than it worth. is famil theory allowing community reports if is “that iar” with truly accused, learning just familiar with the sometime before defendant, enough express “opinion” he will have also heard of ad on the reports circulating subject persons closely verse which are the com from one or more asso munity,” case, Brown v. ciated with the (Tex.Cr.App. 1972); expected reports Ward v. have adverse to his (Tex.Cr.App.1979). fallacy. opinion In an earlier stated whole an utter charade; 266 S.W. exercise has become a whatever val (1924) Therefore, my gone. opin the Court noted that ue it once had is “[m]uch matter; ion, confusion arisen” about this confusion continued efforts to abate the yet instant case indicates has not abated. are not worth the candle.