Moncrief v. State

death is- caused Barnette’s case, jury

sue in the on which the found

appellant’s favor. For the trial court after finding appellant pay to order

expenses by that death would occasioned process, denial of due

be a tantamount appellant for an offense of

penalizing acquitted.

which was hold that the court was without

We 42.12, 6(a)

authority under Article to or- § to make restitution for

der losses an offense for which the

caused criminally respon-

had found he was judgment ap-

sible. The court of

peals to the extent it or- is reversed hearing. remanded for a

dered the cause judgment of the trial court is reformed payment

to delete the of restitution from Basaldua v. probation.

the conditions of judgment

As reformed the of the trial

court is affirmed.

ONION, P.J., McCORMICK, CAMP- WHITE, JJ.,

BELL and concur in the re-

sult. Lufkin, Register, appellant.

Joe Lee Goodwin, Atty., Joe Gerald A. Dist. Herrington, Clyde M. Asst. Crawford Huttash, Lufkin, Attys., and Robert Dist. Austin, Atty., for the State. State’s MONCRIEF, Anthony Appellant, Mark Texas, Appellee. The STATE PETITION APPELLANT’S OPINION ON No. 1144-84. REVIEW FOR DISCRETIONARY Texas, Appeals of Criminal

Court CLINTON, Judge. En Banc. guilty of murder found April 1986. by shooting him with a killing another punish- shotgun; court assessed thirty for a term of ment at confinement years. is not chal-

Sufficiency of the evidence indicate the factual basis lenged. To say enough it is his contentions Joey Deaton testimony of one through the made several proved appellant the State 631 incriminating concerning why Wright testify appellant’s statements had that he knew deceased, appel- reputation he shot and killed the for and law many citizen, abiding got lant countered from then his estimation it, witnesses that Deaton’s for of viz: veracity bad, truth and and from sev- abiding [sic], as proba- “As far him eral knew that was not who Peaceful, bly not. I’ve never seen the person;” “a violent the State then adduced boy no cause trouble.” on crossexamination of another defense That after we was received what reputation for appellant’s witness that be- perceive to protest be sufficient to inform abiding ing law is bad. citizen prosecutor the trial court and the of appeal complained On his direct it;2 grounds the matter was therefore that trial on the merits State for review. Zillender v. erroneously permitted to introduce 557 517 objection testimony over his to going his Accordingly, we turn address bad and law contention. abiding placed citizen before he had authority is proposition There for the in Finding ap- character trait issue. an while introduce evi pellant preserve failed to his claim and that dence of a relevant trait of character “opened door” the State to suggest improbable it is committed proffer reputation testimony, Beau- charged, only the offense reputation testi Appeals judg- mont Court of affirmed the mony opinion tes permissible personal is — of ment conviction. Moncrief timony as admissible. Cases (Tex.App. S.W.2d 10 —Beaumont Ward v. granted petition

We his the rea- review Cr.App.1980)(Opinion on State’s motion given and, having sons for that decision State, 414 rehearing), and Smith so, done will affirm. (Tex.Cr.App.1967),perpetuate that During crossexamination of Deaton proposition. for appellant counsel drew an- negative of in examination the decisions cited questions swers toas whether Dea- fail- past will Ward Smith reveal ton “had ever known [appellant] to be a distinguish ures to character from person” or any prob- violent “to ever start tion, accused from deceased nature anyone.” lems with witness for permissible im- questions on direct from lant, Boutcher, Bill also testified he did not peachment probably on crossexamination [appellant] person” “know as a violent rejection proof led to a character aggressive another, an person;” “to be Ve- example, trait For by opinion Renfro, chel said “character [is] support of- of its limitation of good.” object. The did State ac- fered to show an Appellant cused, Floyd Wright also called cites ancient case Smith (Ct. impeach credibility Tex.App. Deaton Brownlee testifying App.1882), “gener- that his as holding inquiry for truth and veracity is bad and al such that he character of the deceased” entitled to be under article predecessor believed oath. On under to former crossexamination, objection, over the State P.C. “must limited to the be questions exception. 1. The are our COUNSEL]: answers set out full Note [DEFENSE id., appeals, of the court of at 12. Your [THE COURT]: is overruled." 2. At this time we will ‘‘[DEFENSE COUNSEL]: Moncrief, supra, exchange see at 11. For the full (All grant ask the Court reputation mistrial because supplied throughout by emphasis being peaceful otherwise indi- writer of this unless citizen has not been [sic] issue. cated.) Your for mistrial will [THE COURT]: denied. person.” holding analysis, The there was no error Given overruling appellant’s objection to the primarily was based on a learned treatise question put Wright, and thus the court the Court was wont to follow which “ right reached the result. said, regard- is to be ‘Character’ ... ” ‘reputation.’ Ac- ed as convertible with judgment of the Beaumont Court Watson cord: Tex.Cr.R. Appeals is affirmed. (1951). TEAGUE, Judge, concurring. Roy Ray mightily strived Professor R. granted petition discretionary We straight. set matters of Mark review that was filed on behalf everywhere agreed that a “It Moncrief, Anthony hereinafter referred to probative son’s character has val- moral appellant, in as the order to determine determining probable in his conduct. ue Appeals whether the Beaumont Court of therefore, may, ev- accused introduce correctly appellant’s ground overruled the to show that idence of his error, Judge “The Trial erred in of to-wit: improbable that he did the act overruling Appellant’s objection charged.” by introduction State’s (Third Edition) Ray, Texas Law of Evidence guilt portion of the trial of evidence Also, placed Appellant’s 2 Texas Practice 169. charac- in issue the § community Appel- tion in the in which the (or reputation) may ter be a fact issue being lant resided for Id., given p. case. at 187ff. placed citizen before said issue was kept in mind “It should be ... jury by Appel- into evidence before the possible prov- there modes of are three opinion, lant.” For reasons stated in its (1) opinion character: Personal the court of held that (2) person. witnesses who know the err. judge did not Moncrief Reputation person the communi- (Tex.App. —Beaumont (3) ty. person from Conduct of disagree. may drawn as to which an inference be appellant The record reflects that disposition.” his actual “in- tried and convicted was

Ray, op cit., at 168.3 § knowingly causpng] tentionally and appellant testimony individual, Carter, adduced Christopher When death of an firearm, Joey and Bill Boutcher had by shooting Deaton him with a to-wit: person” shotgun.” Punishment was assessed never known him to be “a violent confinement judge thirty years’ at introduc aggressive person” or “an he was Department of Corrections. ing opinion particular evidence as to a trait character, and it was before the reflects that after consum- evidence ing approximately n According objection.4 without to current gallon of one-half reasoning appellant acceptable. did is what Carter, Vodka, de- appellant shot context, then, prosecution ceased, range in point the back blank testimony entitled to rebut shotgun, caused Car- body his with a Floyd appear Deaton and Renfro with to have death. There does ter’s be- Wright any previous as to serious difficulties been might law-abiding appellant and Carter being peaceful and citizen.” tween “a defense,” claim, charge, instances of Criminal Evidence are 3. New Texas Rules 404(a)(1) permits Rule similar effect. of conduct. prosecution to offer and the to rebut pertinent 4. That trait of character "for agreed his “char- Harold Vechel Renfro purpose proving that he acted in con- specific is good” more acter without [is] particular formity on a occasion.” therewith particu- ambiguous; the more event too of character provides that a trait Rule 405 had been shown. lar trait proved by and, of a element is "an essential where it justified appellant firing ty.” have shot testify, the fatal Had been to so The appellant Carter’s back. testified that given killing the circumstances of the community in which he his a lot left to be desired to lived and resided for those charac- justify killing Carter. The State’s good. ter traits Deaton, “star” Joe “Joey” witness was state, For reasons I will the testimony killing who soon testified that after the Deaton, gave Boucher Renfro con- incriminatory made several state- cerning personal knowledge their why ments that related to he killed Carter. character traits for non- Many witnesses who testified violent, non-aggressive, having “good general reputa- lant testified that Deaton’s subject character” to sever- tion in truthful noted, however, objections. except al As was bad. objecting testifying to Renfro’s cross-examination, objection On without appellant’s general reputation in the com- prosecuting attorney, Deaton was “for munity veracity,” his truth and ques- asked and the following answered prosecuting attorney not to chose level tions that were elicited objection to the above attorney: Wright, witness, Floyd another defense Q: You’ve Mark appellant] known [the general reputa- also testified that Deaton’s your life, you not, all Joey? veracity tion for truth and was bad and A: I have. that he was not entitled be believed Q: during period And of time have Although under oath. you ever Mark known Moncrief be a time the following person? violent prosecuting attorney’s occurred No, A: sir. Wright. goes cross-examination of This Q: you Have ever known Mark Mon- appellant’s complaint that we chose to crief any problems to ever start review. anyone? THE PROSECUTING ATTORNEY: Do No, A: sir. you know Mark Moncrief? The record reflects also that Bill Boucher Yes, A: THE sir. WITNESS WRIGHT: Renfro, and Harold Vechel defense wit- Q: you Do know his nesses, prior testified to when the appellant community in which resides for testified. law-abiding peaceful citizen? objection by Without at- Objection, DEFENSE COUNSEL: Your torney, Boucher testified never that he Jury At this time I to be Honor. ask knew the aggressive be an removed. person. purpose? THE COURT: For what Q: Okay. you Did ever know Mark to aggressive person? be an To voice an DEFENSE COUNSEL: A: No. jection. THE ATTORNEY: It’s PROSECUTING

Renfro also as testified follows: objectionable. Q: youDo Mark person- know Moncrief ally? request THE COURT: Your is denied. Yes, A: I do. At DEFENSE this time COUNSEL: Q: good? Is his character grant a mistrial we’d ask the Court be- of the for a A: Yes. cause not been has objected, Because issue. testify Renfro was not jury’s presence for mistrial that he knew the THE Your COURT: lant’s “for his truth veraci- denied. will be excep- good reputation DEFENSE COUNSEL: Note our in which tion. he lived for and law-abid- ing citizen. Baker further testified that THE COURT: Your appellant could be believed under oath. (Emphasis is overruled. add- ed.) “There is no better known rule law in [of THE you WITNESS WRIGHT: Would than that the State] repeat it? inquired defendant cannot be THE PROSECUTING ATTORNEY: Do opens up State unless the accused himself you reputation? know his way.” Brown v. Yes, This has been

THE WITNESS sir. WRIGHT: the law of this State "at least since 1892. THE Is it PROSECUTING ATTORNEY: Tex.App. See Felsenthal v. good or bad? (1892). fact, 18 S.W. such rule THE WITNESS WRIGHT: As as far of law is so well known that “There is abiding, probably not. probably Peaceful, boy I’ve never seen the cause ques state who does not know that such a added.) (Emphasis any trouble. improper, tion is and that it is bound to be The court of held that the error improperly brought hurtful when thus preserved had not been re- plain.” the attention seems Fa If view. I understand the court’s reason- rar v. 112 Tex.Cr.R. ing why the error was not 1050, 1051 But cf. review, appellate I find that it was based State, Small v. 634 S.W.2d 698 upon following: (1) appellant’s the the Thus, App.1982). “It is reversible error for Honor,” jection, “Objection, Your was too State ac general preserve of an cused in issue where the defendant has not error, (2) appellant’s and because counsel (Citations omitted.)” done so. Smith ruling objection, had not obtained a on his 427, (Tex.Cr.App. 659 S.W.2d 429 premature, his for a mistrial was 1983). course, Of it is error for the defend i.e., because counsel had not done it attorney inject ant’s the case the into numbers, preserve he failed error for general reputation defendant’s for one or appellate purposes. review For reasons more and until the character traits unless give, agree that I will later I cannot or unless counsel defendant has testified appeals the court of that the error was not the court to permission has obtained review. prematurely offer such Person appel- record reflects that after going or more opinion testimony al to one Muckelroy, a former lant John of the defendant’s character traits never his, his schoolteacher of testified on behalf. stage guilt admissible at the of the trial. Muckelroy testified that the 810, State, 591 Ward v. good reputation in the in Cr.App.1980)(Opinion motion for on State’s being he lived Nevertheless, rehearing). untimely citizen, law-abiding having as well as asking prosecut question by of such a being good truthful. ing attorney, objection, can be reversi over Baker, 92 Tex.Cr.R. Bobby another former school- ble error. Childress v. (1922).1 teacher, 215, appellant had a 241 S.W. 1029 also testified that hearsay opinion” testimony going not be based on the witness’ 1. "Personal to one or and need acts, personal specific or on his more of the defendant’s character traits is to be awareness knowledge arrest distinguished "general reputation” of the fact of the defendant’s from testimo- trial, alleged ny going on if the witness defendant’s for the offense to one more testimony reputation-character trait is character traits. "General testifies that the omitted.) (Citations goes good. testifies particular If a witness to a character trait that a general reputation for a general community in the that a defendant has a particular trait, opinion testimony testifies that on character in which he lives is based course, Of if puts the accused on testimo this Court’s construction of that stat- timely ny orderly course, and in an fashion prosecuting ute. Of goes general reputation to his in the com timely properly objected should have munity one or more relevant obviously improper questions, what were germane traits, then did not do so. being subject im rejecting ground the appellant’s peached by prosecuting attorney either error, the court of held that be- through you proper questions “have heard” appellant’s cause counsel had asked the by proper rebuttal on sub Boucher witnesses and Deaton their Ray, ject. Texas Practice-Texas Law of appellant’s sonal opinions about the Criminal, Evidence: Civil and Sec. character traits for non-violent and (3rd pp. 169-171 ed. Also see Mi non-aggressive, he “opened the door” to States, chelson United 335 U.S. attorney’s asking Wright (1948); S.Ct. L.Ed. Johnson complained question. majority (Tex.Cr.App. 891-92 agrees. disagree this Court for the rea- 1982); State, supra; Ward v. Brown v. sons about be stated. (Tex.Cr.App. 619-20 First, when the 1972); McClung, Lawyer’s Handbook for Wright objected question asked Practice, Texas p. Criminal appellant’s reputation concerned (Rev.ed. 1985). community in which he resides for instance, In this prosecut- was not the law-abiding person, ing attorney injected who first into evi- testified, put any lant had neither gener- the subject dence “char- witnesses, al converted traits non-aggressive, acter” non- general State’s witnesses into violent, and having “good charac- witnesses, permis- tion nor had he secured ter”; to the contrary, it was the prematurely sion of the court to offer this counsel who erroneously injected first kind of before testified. The subject through matter asked attor- questioning of the defense witnesses asked, ney, the time it clearly at Boucher and and Renfro his cross-examina- improper and should not have been asked. tion of the State’s witness These Deaton. Second, it is questions now axiomatic that when a improper were because mere objectionable sonal of witness asks goes to a questions, but the does particular of not time- character trait the is accused ly properly object questions, and to such guilt stage never admissible evidence at the State, the complains appeal of trial. See v. and the defendant supra. Ward Cf. 37.07, V.A.C.C.P., asking questions, Art. of governs nothing the about the such usually punishment stage non-capital felony presented appeal is for review on of case, State, error, and Allaben 418 517 because the defendant the if v. S.W.2d waived See, (Tex.Cr.App.1967), failing its progeny, govem- any, by object. example, to general reputation having particular defendant’s trait was 446, 450, character bad.” State, good, necessary is trait it is v. that the witness Jackson 628 S.W.2d fn. 2 personally acquainted (Tex.Cr.App.1982). "personal opinion with the defendant charac witness, hand, speak reputa- to order of the defendant’s ter” on the other one who knows, only professes personally tion which the witness know to one or more specific tion of the defendant need not dis- have been of the defendant’s traits. However, anyone prove prior proper to cussed witness it is not the character to (Citation omitted.) alleged of the date However, offense. witness of the defendant or other evi testify personal opinion before a witness can acts. dence State, general reputation par- supra, page defendant’s 818. Also see Ward v. bad, 572, State, ticular character must v. trait witness Brown 605 S.W.2d 574 369, 372, State, actually App.1980); have one, some- discussed matter with Wrenn v. 597 S.W.2d person (Tex.Cr.App.1980); and that must have told the witness 1 v. 590 fn. White general reputation defendant’s hav- 937 Lejeune Third, v. (Tex. “opening the rule of the door” Cr.App.1976). years ago, Judge inapplicable Several cause. Such rule Douglas, Leon law, accused, a former applicable only member as to an Court, in authoring this Court’s through play comes into when Robinson v. proper witness, in- direct examination of a Cr.App.1977), therein following: stated himself, brings cluding only out parts such “A good rule of evidence works both may as be favorable himself. When this ways.” wholeheartedly subscribe to such occurs, right opposing it is then the statement. Just a defense as facts, party put before trier of either should not be to lie behind the through proper prop- cross-examination or log timely by failing properly object, testimony, er rebuttal the full details re- attempt advantage and later take of a specting within the scope the matters helpless attorney, I believe the proper if example, direct examination. For same rule apply should at through the accused or his witness testimo- torneys. Therefore, prosecuting attorney impression ny leaves a false with the trier log by is not entitled to lie behind fact, party opposing may clear this objecting obviously objection to what is up through proper cross-examination or able and then later claim under proper testimony. However, rebuttal guise proper of rebuttal or cross-exami rule of meant law was not to be subverted asking unobjected nation that the permit into a rule of that would question “opened asking door” to the prosecuting attorney log, to lie behind the improper questions obtaining or the speak, by failing so to a timely make Cf. Nixon v. proper objection, inadmissible through such non-ac- 443, 444 (Tex.Cr.App. helpless tion later ensare defendant. 1983) (“The object State did to this See, e.g., Lum, States United testimony? improper ‘When evi- (U.S.D.C., F.Supp. D.Delaware admitted, dence is the State not under Winston, 1979); United States 145 U.S. guise present of rebuttal additional im 67, 71, (D.C.1971). App. 447 F.2d proper ”) Having evidence’ objec made no record, prosecut- Without more in the improper tions to the counsel’s ing attorney, by asking Wright objec- Boucher, questioning of Deaton and Renf- question, run tionable afoul ro, prosecuting attorney is foreclosed the rule that “It is reversible error claiming such non-action from that such State of the accused “opened improper questioning the door” to in issue where defendant has not done improper questions and the additional ob State, supra. so.” Smith taining testimony. E.g., of inadmissible however, record, The reflects that after State, v. Crocker appellant present- his counsel State, Lejeune v. Cr.App.1978); supra; ed testimony from defense witnesses Muck- State, Thomas 530 S.W.2d 834 elroy appellant a and Baker had that instance, prose App.1975). In this had the good reputation community in in which cuting properly object and attorney timely appellant having or resided for lived appellant’s attorney’s improper to the ed law-abiding reputation, as and clearly law is so questions, because the good well as written, I that the learned am confident truthful, such would and that promptly sustained judge would have appellant entitle the to be believed under objections instructed the and testimony permissi- oath. This kind of occurred, disregard this them. Had is entitled to ad- ble because an accused prevented improper testi have Boucher, Deaton, vance one or his character traits as and Renfro more of mony-from go E.g., might evidence that to his innocence of Rich v. getting jury. before the State, charged with commit- (Tex.Cr.App. 596-7 crime he stands ting. course, present does 1974). Of if accused an testimony, proof testify put on or confined to sion or such evidence of his reputation testimony, why. evidence but “If he did the communi so order ty for those presentation, impact illegally traits. His to overcome [the traits, terms of number improperly of such in- may be as obtained evidence that was or as troduced], testimony by narrow broad as he long chooses so is tainted germane as it remains illegality to issues on trial. same that rendered the [evidence Good character inadmissible.” Sweeten gen testimony] evidence of itself State, guilt, erate a reasonable doubt as to supra, at 459. Texas the not entitled to have cause, Wright’s testimony In this so instructed. Gilderbloom v. appellant had a bad in the (Tex.Cr.App. community in which he lived for Also see Heard Tex.App. “law-abiding” illegally obtained (1890). but, instead, testimony, was inadmissible question

The However, thus becomes whether un- when the der the doctrine of admissibility curative later on he testimony good had a appellant, through counsel, community cured the which error that the being “peaceful commit- law-abiding”, lived he, ted when the prosecuting attorney, subject in- such became to rebuttal case, jected into the before the appellant Cf. Thomas v. prosecution. put into evidence his reputation traits in 512 (Tex.Cr.App.1978). community in which he resided for be- would hold that cured the law-abiding citizen, prosecuting attorney’s put- error later those character traits. ting that he repu- being peaceful tation for “Generally speaking, evidentiary doc- person lived, in which he trine of admissibility curative is a rule of subject which then became to rebuttal testi- ordinarily by appellate used mony. courts when it first finds that by admitting court erred over appeals’ holding evidence court proper timely objection appellant “opened certain evi- the door” to such testi- dence or actually that should not mony have dictum it origi- because evidence, been admitted into nally but because it found the appellant had failed to also finds that preserve objection thereafter the error because his presented the same kind evidence or was insufficient and further held that testimony had previously upon appellant, ob- was incumbent notwith- jected, the error standing is deemed to been that he had received adverse (Cita- waived cured ruling, again object defendant.” or request the court omitted) tions Sweeten v. disregard Wright’s 693 S.W.2d to the jury instruct (On 456 (Tex.Cr.App.1985) mo- State’s answer. rehearing.) tion for is generally It true error that before exception prosecuting attorney asking broad rule is an improper unlawfully has been be said to can if tained, review, and admitted into evidence over the defendant must make timely proper objection, ac- a timely objec- and the puts cused thereafter on question. Manifestly, evidence or testi- is tionable this be- rebut, mony only destroy, to explain judge fairly the cause the must trial be advised illegally effect of the legal grounds obtained evidence or of the support ob- testimony, jection intelligently upon then that instance he not can does before he rule by putting press waive the error on his spe- it. The defendant must then introducing testimony. v. obtaining Sweeten objection point cific the to supra. question ruling. If objection instance is not adverse the is over- that ruled, knowing ruling immediately whether the accused made a deci- an adverse is sustained, pra, general objection the objection appellant’s If the tained. the pursue following should then the sufficient. defendant obtain method an adverse rul order judge during the collo- Because the trial (1) request jury that the instructed ing: be but then quy denied the motion mistrial disregard question; (2) the obtain rul the expressly on overrule went (4) request; on the then general have been objection, it would lant’s mistrial. Koller to have rather futile for counsel course, (Tex.Cr.App.1975). fn. Of judge trial to instruct the then asked the general exceptions there are these broad question disregard improper the rules. attorney had prosecuting the asked that question if the exception One such that objection Wright. the nature of the Given obviously that an in itself is so harmful ensued, I colloquy the that would hold not cure its struction to the appellate the that effects, i.e., asking harmful mere prosecuting his contention that the review error, then question can be reversible itself asking Wright the attorney objec- erred per necessary in that instance it is I hold question. would also that tionable going through the above fect the error counsel, appellant, through later when procedures. See general Mounts good repu- that he put on 148 Tex.Cr.R. in which lived tation exception inapplicable App.1945). That peaceful and law does case because son, prosecuting attorney’s this caused question upon rely the doctrine Wright’s question in- improper earlier incurable erroneous as to be itself so retrospec- to become admissible by an instruction. laundered, curing er- tively thus whatever might previously ror existed.2 exception general rule must made be reasons, only I concur in For the above exists when it is obvious majority opinion reaches. the result party why judge opposing instance, objecting. In that defendant is objection may pre- be

general sufficient purposes. error for review

serve State, 557

Zillender v. colloquy place that took after EVERETT, Given Jr., Appellant, Milton E. Wright asked envisage a trio question, objectionable Texas, Appellee. The STATE once, speaking interlocutors all No. 67987. to the above none subscribed Nevertheless, colloquy procedures. Texas, Appeals of Criminal Court of and, in judge makes clear that En Banc. attorney under- particular, the April 1986. why stood complaining about Wright. In attorney asked instance, su- Zillender v.

this under Ray raise a toast suspect will not Professor acknowledge majority I2. views, Ray, adopting his Roy majority R. adopts the of Professor to the but, instead, views evidence, only authority who is he is Texas will toast fact eminent very campus of Southern yet active on the 100 young still reached years has light University School Law. which, mark, Methodist Court’s recent year some of this propensity to overrule Court’s recent decisions, devastating. can years, than 100 existed for more has

Case Details

Case Name: Moncrief v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 16, 1986

Citation: 707 S.W.2d 630

Docket Number: 1144-84

Court Abbreviation: Tex. Crim. App.