Wagner v. State

bor, 841, (Tex.Comm’n taken, person’s property 235 S.W. 842-843 No shall be App.1921, jdgm’t adopted); Reagan v. destroyed See damaged applied or for or Co., 105, Ins. 140 Tex. Guardian public adequate compensa- use without Life ap- (citing S.W.2d 909 with Aransas made, by unless the consent proval). plat A subdivision cannot be re- and, taken, person; except such when approval plan- corded without the compensa- for the use of the ning commission. TEX.REV.CIV.STAT. made, be or tion shall first secured a § 974a, deciding ap- art. 3. In whether to deposit money; and no irrevocable or prove disapprove proposed plat or a grant special privileges uncontrollable planning interpret commission must immunities, made; or shall be but all city plan, applicable construe the ordi- privileges granted by and franchises nances and state statutes to determine Legislature, or created under its authori- proposed plat complies whether the thereof, ty subject shall the control these laws. TEX.REV.CIV.STAT. art. (emphasis added) 974a, Thus, plat disap- 4. approval CONST, §1, TEX. art. 17. proval quasi-judicial ais exercise of the petition alleges Doyle Hicker- police power. son, Inc., developer, owned these tracts generally We have held ministerial plat at the it requested approval. time performed private acts which could aby By filling in the request- watercourses and subcontractor to be proprietary functions. ing planning to approve commission For example, regulation govern traffic ais Hickerson, plat, Inc., owner, Doyle con- function, mental but street maintenance is taking. sented to the are homeowners proprietary a function. City v. Austin compensation they not entitled to Daniels, 628, 160 Tex. 335 S.W.2d 753 Hickerson, through Doyle claim title Inc. (1960). regulation Traffic requires public See, e.g., Hightower City Tyler, However, officials to exercise discretion. (Tex.Civ.App. 1939, S.W.2d 404 Paso —El street maintenance a ministerial function ref’d); DeMary writ County, Jefferson performed which could be by private sub (Tex.Civ.App. 179 S.W.2d 584 —Beaumont purpose contractor. The of this distinction 1944, w.o.m.). writ ref’d piecemeal judicial avoid poli review of cy decisions a governmental made unit. judgment We reverse the of the court of appeals judgment and affirm the city negligently Had the itself main trial court. negligently tained or constructed a storm sewer, city would be liable because the constructing

acts of maintaining

storm sewer would be ministerial acts performed by private could be sub Houston, Dilley contractor. v. City 191, (1949).

Tex. 222 S.W.2d 992 WAGNER, Appellant, case, plat Onnie Mack approval is a dis cretionary only governmen function that perform. tal unit By quasi- can definition Texas, Appellee. STATE judicial police power exercise of the is ex No. 61601. clusively province sovereign. An private corporation individual or cannot ex Texas, Appeals Court of Criminal power. plat ercise the same We hold Panel No. 2. approval governmental is a function. Feb. 1984. The homeowners further contend Rehearing Denied Feb. plat approval that even if governmen is a function, petition tal states a cause of

action for inverse condemnation. The Tex provides:

as Constitution Sexton, Orange, appellant.

Charles County Wright, Atty. and William C. Jr., Jenkins, County Atty., James O. Asst. Huttash, Atty., Orange, Robert State’s Austin, for the State. P.J., ONION,

Before and W.C. DAVIS TEAGUE, JJ. OPINION DAVIS, Judge. W.C. appellant guilty

A of murder jury found eighty-five and assessed years’ Appellant alleges confinement. grounds of error. eleven grounds of those concern his Mo- Several tion for Continuance and Notice Possible Insanity Defense. This motion involved continuance, competency three issues: insanity hearing, and notice defense. con- The overruled the motion for a court tinuance, appellant claimed was psychi- needed order to obtain additional testing appellant to his mental atric “as condition.” the docket record shows that appellant contain a notation that sheets 17, arraigned February 10, April the case set for trial 1978. 19, for on June case was then reset trial 26, Appellant’s 1978. mo 1978 and June 16, tion filed 1978. clerk for June Orange County the 260th District Court copy testified that a criminal docket of the 260th District Court was mailed to 1978, 19, appellant’s May counsel paragraph stating any it contained a for must be filed motions continuance 31, May Appellant’s counsel did dispute testimony. this The motion was filed; untimely its the court did not abuse overruling con discretion the motion for tinuance. Hernandez 643 S.W.2d (Tex.Cr.App.1982); Taylor v. 566, 1981). (Tex.Cr.App. granted ground appel The trial mo- In a related of error claims erred in competency hearing for a and denied lant trial court overruling psychiatric his motion for exam insanity his motion for the defense because day began, filed the the trial ination June untimely it was filed violation Art. hearing 1978. At a on June 19 a 46.03, Appellant claims V.A.C.C.P. competent appellant found trial. stand that the trial court its discretion in abused Appellant’s insanity notice defense had failing present allow evi- filed, rejected untimely for insanity dence about issue good untimely no cause was shown insanity the notice defense was filed ten filing. Then filed on June 26 actually days before the case went trial. psychiatric motion examination de again pertinent Once we note dates termine “whether defendant was sane at originally case set involved: the (Emphasis the time of the offense.” add April 10, trial 1978 and then set for June ed) already The court had ruled out the 26, Appellant 1978 and June filed defense, therefore, insanity as the State 16,1978. insanity his notice June defense notes, “pertaining any motion to the de 46.03, 2, perti- Art. V.A.C.C.P. states insanity fense of was rendered moot.” The part: nent court did not its discretion in overrul abuse (a) A planning defendant to offer evi- ing appellant’s motion. v. See Hammett insanity dence the defense shall file a State, (Tex.Cr.App. 578 707 S.W.2d notice of his intention to offer such evi- 1979); State, 374, 380 Porter v. 623 S.W.2d prosecuting dence and the court (Tex.Cr.App.1981). attorney: granted appellant’s The trial mo- court days prior at least 10 to the date hearing. Appellant competency tion for a trial; set for case is hearing claims violated due now (b) timely pursuant process court failed “to Unless notice is filed trial (a) section, appellant sufficient time obtain the to Subsection of this allow testimony necessary necessary psychiatric insanity is on defense not admissible compe- presentation of his case on good unless the court finds that cause tency.” give [Empha- exists for failure to notice.

sis added] en- motion for continuance Appellant’s competency motion for a compassed his appellant’s the time motion At by stating people doing “the hearing heard, 16, the case was set for was June that further testing are of the trial on June 19. Because the court then complete a testing is needed to reach well- hearing, competency held a the case did not It opinion.” states further that reasoned go until 26. The to trial on the merits June question” competency to the “there is as go to on 19 at the case was set to trial June The then trial. court to stand appellant’s on time motion was filed June hearing. Appellant competency held a filing not 16. Since the June 16 was ten before, objections during or after no made days prior setting, trial we find to June 19 psychiatric hearing suggest correctly held trial competency hearing for the evaluation used insanity untimely notice defense was excep- Appellant’s bill of incomplete. State, See filed. Schaffer hearing simply pro- made after tions (Tex.Cr.App.1979). 490 trial court has testimony defense duced good the discretion to decide whether cause for more treatment there was need timely. file present is for failure to Schaf- No illness. mention appellant’s mental fer, supra. presented No evidence was testing any psychiatric made of need appellant explaining why waited until competency. 16 to No of discre June file notice. abuse appeal objection offered ground error This shown. court. A presented to the trial overruled.

307 magis- objection appeal raised on will not be con and the failure to take him before State, specific objec if it from the Byrd sidered varies trate. S.W.2d 883 Von (Tex.Cr.App.1978). Appellant tion made at trial. Carrillo v. did not show (Tex.Cr.App.1979); any grounds S.W.2d 876 Bouchillon such connection. These (Tex.Cr.App.1976). S.W.2d 319 error are overruled. Nothing presented for review. error last confession related Appellant claims that the court erred concerns the court’s denial admitting testimony competency requested charge jury to the on the issue concerning hearing a statement of the If voluntariness confession. gave police because this evidence was not jury evidence offered did before competency prejudicial relevant and was appel not raise the issue voluntariness appellant. jury charge lant was not entitled to a out, points

As the the matter. Brook v. State details (Tex.Cr.App.1978). Appellant and substance of statement were not does cite regarding made known to the the record evidence heard the statement voluntariness, jury concerning referred to does was never confession. The nor our only appellant’s reveal such evidence. involved under review record standing proceedings ability The State’s evidence that the con showed addition, voluntary. to communicate with others. fession was This evidence was appellant objected jury specifically on the not undermined or rebutted before grounds any way. Appellant’s ground of the issue of the of error is voluntariness of confession and not on relevance overruled. Appellant may

grounds. not now assert Appellant complains of also the denial of this contention for the on appeal. first time charges. his He re- requested another of Carillo, Bouchillon, supra; supra. This quested charge on issue of common ground error is overruled. marriage law between a State’s witness We grounds will address three related appellant. Ann. See Tex.Fam.Code together. Appellant error (Vernon 1975). Again appellant claims that his 1.91 confession should not any have been admitted place does not cite us to the record appellant knowing- at trial because had jury, not issue where the was raised before the ly intelligently right, waived his Art. nor did examination of the re- our record V.A.C.C.P., 38.22, and because he was not ground This error is veal evidence. magistrate giving taken before a Brook, supra. before overruled. confession, 15.17, Ap- Art. Y.A.C.C.P. of evi- Appellant that exclusion contends

pellant argues also court should appel- physical of a condition dence charged jury have on the issue of the lant, merits, during the trial on was voluntariness of confession. testimony error. The evidence consisted of The trial hearing appel- court held a on x-rays shotgun pellets show that suppress lant’s motion to his confession. in appellant’s were situated somewhere showed, testimony and the trial court frontal head and that his sinuses are some- findings made written of fact to effect appears larger Appellant than usual. what that, voluntary, the confession was confused his use of v. somewhat Cowles followed, ap- Art. 38.22 had and that State, (Tex.Cr.App.1974) 608 intelligently pellant knowingly waived specific the claim that where intent assert rights his Art. under 38.22. crime, is as an element involved falling appellant

The fact that of mental weakness short tak magistrate legal insanity guilt- admissible at en before until after he had is given phase his statement not render the innocence trial. While the does correct, showing foregoing confession invalid absent a statement claiming specific causal connection confession mistaken in intent between the 308 case. has Appellant appel-

was an issue that he discussed or heard of charged intentionally knowingly with or people; lant’s with other causing the death. In par- victim’s Womble the discussion cannot be based on the (Tex.Cr.App.1981) S.W.2d offense ticular for which is on inten- charged a defendant was also with trial, although upon it can be based tionally knowingly person’s causing a offense for is on trial defendant stating He requested charge death. and a discussion of matters other than the if he did specifically found that instant offense. Watson acquit- intend to hit the victim he should be (Tex.Cr.App.1979) (opinion quoted Dockery ted. Court 1980). rehearing (Tex.Cr.App.1975) (opinion 542 S.W.2d 644 Ray Long testified on dire as Officer voir Rehearing) on Motion and discussed follows: fact that an unintentional act can still be presume Q. Long, Mr. when—I knowledge, if criminal offense done with testify repu- you are here to about the charge negligence. recklessness or His Wagner, Mack is that tation Onnie specific Appellant’s was denied. sit- intent correct? uation similar. No intent need Yes, sir. A. proved, knowledge will suffice.1 Q. community? In the One of appellant’s witnesses stated that Yes, A. sir. appellant was not insane but that he Q. you base What do might impulse have control problems on? hap- and that aware of he was what received anoth- A. On information from pening but that his emotional contact was a community. er member Cowles, displaced. supra, bit stated: A. We discussed the fact that Mr. Gans expert the de- witness for [w]hen his wife stated that he and had been— fense that the was le- testifies accused by Mr. their lives had been threatened act, gally sane at the commission of Wagner. specific is not one and offense where Q. Anything else? crime, an

intent is an element I can’t A. recall. testimony by as to offer that witness words, Q. In other it’s relation to this aberration the emotional mental act, you problems reject- specific accused is when interviewed should Gans, guilt-innocence stage of the Mr. is that correct? ed at the trial. to A. It was in relation a terroristic to a— threat and it was relation 510 S.W.2d at 610. Q. only, is correct? That and that correctly the testi- The trial court excluded Yes, sir, dis- A. that’s what Charles mony. ground of error is overruled. with cussed me. ground of is that Appellant’s last error Q. anything You didn’t discuss else oth- reputation was shown to be state witness than er that threat? repu- incompetent testify appellant’s he based A. That’s all we discussed. in the tation single specific act of his on a (Tex. State, v. 480 S.W.2d 724 Crawford appellant. qualifications Cr.App.1972) discussed reputation ap and witnesses addressed Mitchell pellant’s contention. The court identical (Tex.Cr.App.1975) the clarified 510 Court said: reputation requisites for witnesses. Although testify requirement the officers could not two-prong qualification acts, specific improper it is not (1) testimony by the witness consists Scott, (1972). Law 28 generally and LaFave Criminal 1. See 1982). instance, them acts other to discuss with In this Long never testi- persons determining aas basis for what fied appellant’s reputa- that Gans him told appellant’s reputation is in the communi- being peaceable law-abiding ty. appellant’s cross-examination of general community citizen in the in which the officers did not show them to be Long qualified he lived was bad. was not a unqualified testify concerning ap- reputation witness and should not have pellant’s reputation. bad See and com- permitted testify. pare Frison and Watts Contrary majority’s authority to the S.W.2d 479 (Tex.Cr.App.1971). (Tex.Cr. 480 S.W.2d724 Crawford 726-27. App.1972),in appellant’s this cause counsel Appellant’s last ground of did Long error establish on voir dire that judgment unqualified testify overruled. The concerning appel is affirmed. reputation. lant’s bad TEAGUE, Judge dissenting. however, Perhaps, the majority has read error, ground In his eleventh which elementary subject law books but overrules, majority panel appel- yet quoted has not read what has from lant asserts that the trial court erred in page opinion, especial- record on of its permitting Ray Long, Orange police of- ly question last answer. ficer, testify stage

the trial opinion appellant his had a McCormick, Ray, Wigmore, and all the reputation in general bad community in greats other expounded who have on the he being resided for a peaceable and subject, present day publishers, or their are law-abiding citizen. implicitly by majority: warned Tear out your chapter books on evidence the Implicitly, majority Long finds that reputation qualified. how a bad qualified give opinion appel- lant had a bad in the Finding majority clearly that the community in which he lived for error, totally respectfully I dissent. peaceable law-abiding I totally citizen. P.J., ONION, McCORMICK, Before disagree finding. CLINTON, CAMPBELL and JJ.

Long testified presence outside of the had formed his OPINION ON APPELLANT’S MOTION solely from investigation a criminal he had FOR REHEARING conducted, Gans, wherein Charles CLINTON, Judge. present daughter husband of the deceased, formerly who granted rehearing be- We in order to reex- trothed, complained had to him he that amine last the two contentions raised wife appellant had been appellant threatened panel opinion and discussed in a approximately submission, two original months before trial. on viz: that evidence appellant’s physical of at condition the time is elementary It hornbook law that be- of the offense should have been admitted give fore witness is entitled intent, on unquali- the issue of and that an general that an reputation accused’s for reputation fied was allowed to tes- having particular character trait the tify punishment hearing. at the community in which he lives or resides is bad, actually the witness exceptions must have dis- appellant his bill of intro- subject cussed the reputa- report electroencephalograph accused’s duced an tion someone in x-rays appellant the skull of dated June person that must prior have told the witness approximately that three months general the having accused’s the commission of the offense. Dr. Wil- particular that gener- radiologist Orange character trait in the liam Bryant, a Memo- al community State, was Hospital x-rays bad. Jackson v. rial testified the show 446, 450, 628 S.W.2d 2 (Tex.Cr.App. shotgun region n. pellets projected over of issue, an en- therefore head. He also noted intent was the largement Bryant of the frontal sinuses. rule exception the announced Cowles sure, could be he did not stated he but State, supra, could not be invoked.3 penetrated into pellets ap- had believe jury This so was authorized because pellant's enlarge- brain.1 He testified appellant if it he knowing- to convict found might signal atrophy of the sinuses ment ly the victim’s death. See caused Womble brain, things of but that a number (Tex.Cr.App.1981). 618 S.W.2d 59 enlargement such an and fur- could cause study ther Nor- was needed. Dr. Wallace However, appellant correctly ton, appellant, phychiatrist who examined rehearing points out in his motion enlargement of sinuses is testified charged conjunctively the trial court rather with deterioration of sometimes associated culpable disjunctively than as to mental lobes, areas, impaired, if the frontal which paragraph applying the state in the law impulse stat- could affect control. Wallace jury the facts. was instructed that appellant, ed on his contact with that based if it found he appellant could convict not insane but concluded “knowingly intentionally” caused the impairment neurological or functional proof victim’s death. Sufficient both possible. specific of the brain was areas required therefore mental states was happen- While he was aware what was. Ortega conviction. him, ing appellant’s emotional con- around Cf. (Tex.Cr.App.1983); Wagner v. S.W.2d 701 “a little appeared tact to Norton to be bit displaced.”2 (Tex.Cr.App.1976). “[pjroof higher of a While it is true that panel original On submission charged degree culpability than that con appellant’s reliance concluded charged [,]” culpability proof of the stitutes (Tex.Cr. State, 510 S.W.2d 608 Cowles v. § V.A.P.C., 6.02(e), “knowledge” so that App.1974) misplaced. Because the tri necessarily have to per did not se charged must jury al that it find proved, are to hold that the we constrained “intentionally knowingly” victim, charge placed fact the burden on specific court’s the death of the caused guilt question and would electroencephalograph report notes that ferial on 1. The evidence." if admitted into penetration fragments confuse or two into the one original.) (Emphasis in possible. brain was Cowles was S.W.2d at 610. At time determining operative in- test for decided on the issue of 2. This evidence was inadmissible M’Naghten sanity in Texas was the as a defense insanity appellant's no- defense of Rule, inquired an accused at the which whether intent to such evidence untime- tice of offer right distinguish from could time of offense 46.03, 2, ly § under V.A.C.C.P. See filed Article wrong conduct with which he as Opinion original submission. prosecution, charged. At the time of the instant 19, 1978, operative commenced June Cowles is that rule announced in V.A.P.C., 8.01(a), which be found in test could establishing insanity falling short read: guilt. on the issue of will not admitted "(a) prosecu- defense It an affirmative exception where to this rule is "An that, charged, time of the conduct for which is an element intent actor, offense disease or as a result mental tried, in the different accused is defect, his conduct either not know that did degrees and ‘with intent' of murder the incapable conforming wrong of or was Annotation, 1253, and 22 A.L.R.3d crimes. requirements the of law the his conduct to cited; People Taylor, Cal. 220 cases there allegedly violated.” 212, reasoning Cal.Rptr. App.2d 33 654. determining insanity different standard This type of of this evidence the exclusion behind change general in- rule once does not distinguish case, between can is that if accused evi- sanity from the has been excluded wrong the nature right and understands capacity will mental not of diminished dence acts, consequences is therefore Appellant argues of his here that the evi- admitted. sane, exceptions a legally suffers from of the fact that he his bill should adduced in dence problems exception does to the rule mind or from emotional in under the weak come act,'and consequently imma- above. excuse his noted not prove to beyond jurisdictions State intent a reason- Other have held evidence of able doubt. capability amounting abnormal not mental negate insanity admissible the ele- accept Nevertheless appel- we decline to aforethought. A.L.R.3d, ment of malice argument lant’s that because intent was an § 8, Though aforethought at malice 1252. case, issue in the possible evidence of im- express is also an not element under pairment of mental functions was admissi- § 19.02, supra, we have held that when guilt ble phase of the trial. adequate “sudden from passion arising Appellant set invokes dicta out in § cause,” V.A.P.C., 19.04, see is raised as 610, supra, Cowles that “where prosecution, an issue in a murder will specific intent is an element of offense function “in the of a nature defense to tried, which the accused is in murder that reduces the offense to volun- degrees different of murder ‘with tary manslaughter.” Braudrick v. [,]” intent’ crimes evidence of mental im- 709, (Tex.Cr.App.1978). pairment which does not rise to level of Were appellant’s proffered we to find that insanity is nevertheless admissible to ne- showing evidence contributed to of “sud- gate specific intent and so reduce the passion den arising adequate from an magnitude of the crime. As in 22 stated cause,” responsi- doctrine of diminished A.L.R.3d which both bility would mandate that evidence be the State our draw attention: However, present- admitted. the evidence adopted states have the so- “[S]everal exceptions ed in bill of did noth- theory called of diminished responsibility. ing to advance this issue. theory crimes, This is that since certain definition, by require the existence of a The import appellant’s proffered of evi- intent, any evidence relevant to dence is injury possibly his head intent, existence of that including control, impulse affects his and that he evidence of an abnormal mental condition seems to lack emotional contact constituting legal insanity, compe- surroundings. All that can be inferred purpose tent for the negativing of from appellant may this evidence is that intent. Although the doctrine is often susceptible person more than the normal referred to as the doctrine of ‘diminished acting under the of influence a suddent responsibility,’ purpose the actual passion. It does further proposi- establish, such evidence is to negating tion that in fact did act under the requisite intent for a higher degree passion night influence such a on the offense, fact degree a lesser the offense. the offense was committed.” Furthermore, introduction of such evi- § 5, Id,., at 1238. dence would confuse the in seek- jurisdictions Many recognize differ- ing apply charge man- voluntary degrees ent upon murder based whether slaughter given by that was court. the trial or not “premeditation” “deliberation” and charged: The court present are will admit abnor- “ ‘Adequate cause’ means cause capability may mal mental where it contrib- commonly produce degree would ute to reduction from first to second resentment, anger, rage, terror § Id., degree murder. at 1246. How- person temper, ordinary sufficient ever, V.A.P.C., recognizes 19.02 no such incapable render the mind reflec- cool “degrees” Hence, of murder. the doctrine tion.” of diminished responsibility justify will not § 19.04(c), appellant’s proffered supra. admission of previously evidence See As ob- “degree” served, establish lesser of murder. thrust of pertain- the evidence emphasis supplied throughout All cated. opinion writer of this unless indi- otherwise ing appellant’s reputation is appellant’s injury to head is he awas discussion person ordinary temper. not a of The stat- with is Charles Gans. voir dire sub- utory voluntary manslaughter definition of stantially original set out in our on contemplate does not what would consti- reproduced not submission and will adequate perspective tute from cause here. impulse of an individual control is whose However, we do think necessary it impaired. See Hobson place Long’s voir testimony dire context. 473, of (Tex.Cr.App.1983). Lack nor- Appellant guilty shooting was found of mal impulse simply control circum- shooting death of Laura D. Smith. The recognized by Legislature stance night September of occurred on the responsibility the criminal diminish appellant way when forced his into his crime to a accused or reduce lesser of the deceased in an home effort to included offense. daughter, see her Willie Etta Smith. that, ap- We find the issue of therefore Though appellant, not married to Willie pellant’s sanity having been taken out of Etta had one and Smith borne child miscar- case, appellant’s proffered evidence ried another him. There was evidence guilt, his not material on issue of offense, days prior that a few to the Willie phase the guilt its introduction at appellant Etta taken a Smith had blood jury— trial have confused the would married, though preparatory getting test very sought evil averted in participation Smith testified that her in this State, supra. The trial court did Cowles was coerced. after the offense Sometime refusing not err in to admit this evidence committed, after Etta Willie Smith panel overruling was correct in Gans, appar- had married Charles regard appellant’s in this on contention ently Long threatened their lives. testified original submission.5 on voir dire it was Gans’ communica- Appellant argues his also con particular tion this threat which consti- viction should be reversed because trial knowledge sole for his tuted the foundation erroneously testimony admitted the appellant’s reputation. Ray Long at the Officer ground original On submission this testified, in phase Long es trial. error was overruled reliance Craw sence, Sergeant that he a Patrol (Tex.Cr.App. S.W.2d 724 Orange Department, Police had ford 1972), “[ajlthough said wherein it is approximately of” for “known testify months, the officers could appellant’s two and that he knew acts, improper it is not for them to discuss for persons as a specific acts with other basis lawabiding peaceable and citizen to be bad. reputa determining appellant’s for what testifying, Long Prior to so was taken on Id., community.” in the at 726-727. by appellant, voir dire wherein it was estab knowledge It is for his clear from the context lished that basis Crawford Assuming arguendo possi- hearing of a At motion new rehearing appellant impulse trial and in his motion a "relevant ble defect of control was ... Code, § alludes to V.T.C.A. Penal 19.06 as au- going to show the condition of ] circumstance! thority admissibility proffered the time of the the mind of the accused at offensef,]” evidence. Section 19.06 reads: under admissible therefore prosecutions all for murder or volun- "In provision, failing have to admit it would been manslaughter, tary the state or the defendant because, may This so while have harmless. permitted offer all shall be nevertheless, relevant, have demon- as we surrounding relevant facts and circumstances rejection of evidence under in our strated killing relationship previous and the exist- responsibility, it was diminished doctrine deceased, ing between the accused and any opera- not material the establishment together with all relevant facts and circum- guilt phase trial. in the tive issue going the condition of the stances to show of the of- mind of the accused the time fense."

313 therein, authority and the cited see case as sis of these observations and discussions State, (Tex.Cr. Frison v. 479 473 S.W.2d in results a conclusion as to App.1971), testimony police that the reputation. reputation individual’s When solely acts, officers in those cases was solely specific syn not based is based this specific lost, on discussions as reliability. acts. It is thesis is as well as its imperative reputation that a has reputation testimony given by witness When is reputation discussed the accused’s police investigated with officers have an who the community members of for by as basis individual’s offenses and an victims of reputation his that such is spoken bad. individual act who have with State, (Tex.Cr. victims, Mitchell v. 524 510 others who are it also is obvious App.1975). We read stand the witnesses’ conclusions as to Crawford proposition of specific appellant’s reputation discussion be will slanted acts which during occurs of against course the individual and will not have conversation as to reputation an accused’s implicit excep trustworthiness in the community will not serve taint tion to hearsay rule. The conclusion understanding invalidate the officer’s of of such reputation witnesses as to the reputation. same, is This not the how may vastly be different from those who ever, holding reputation testimony as day have to day had contact within may grounded solely be on the officer’s community envisioned the tradi knowledge specific of acts. exception hearsay tional rule for reputation testimony. actually isWhat any We cannot state the matter occurring testimony with type of this clearly more than did the Dallas of Court that a takes the specific acts Appeals Moore v. 663 S.W.2d the individual and then infers what the 1983): 500 (Tex.App.—Dallas reputation person would be. “Reputation testimony necessarily respect, this this easily evidence could hearsay, based but is an admitted as and, thus, reliability. fabricated loses its exception to hearsay repu rule. For Consequently, if open ques this were an testimony exception tation tion, likely we would hold that such testi hearsay rule must meet two basic crite mony was inadmissible.”7 (1) ria: that there is necessity some (2) testimony; introduction of the perfect The instant case ex- serves testimony that the ample has some knowledge circumstan the reason that probability tial specific trustworthiness. reputation acts alone as basis for § Wigmore, 1580, 1611, Evidence testimony & 1612 violates the rationale for admit- (Chadbourn 1974); rev. 1A Ray, ting R. Texas place. the first Law at Long Evidence Civil knowledge and Criminal based (Texas 1980).[6] Practice ed reputation single 3d. aon “terroristic threat” reputation trustworthiness of by testi which was him related to Gans. While mony person stems from the fact strictly speaking part this incident day in his day by observed activities of the transaction for which other members his community being prosecuted, incidents were a both these product observations are discussed. be- relationship the tumultuous period Over a synthe time there is a tween Etta Smith. and Willie [sic] guarantee 6. Section fairly trustworthy 1321 states: form furnishes a [hearsay] correctness." exception "The reasons (1) difficulty are two: ing The inherent of obtain- appeals felt constrained any satisfactory Romo evidence of the desired (Tex.Cr.App.1980) proof fact reputa- other than of tradition and necessity knowledge creates a alone for this evidence. allow acts to serve prolonged testimony. fact that a observation and aas basis for To discussion of certain matters of inter- present disposi- extent that it conflicts our possible est a whole sift tion, will supra, Romo is overruled. bring errors and the result to us in down TEAGUE, Judge, dissenting. possibly consti- Long’s testimony could not synthesis of observation tute the kind of Originally, this cause was submitted in the and discussion of this Court.1 panel to a of three members reputation evidence deeming the basis for panel rejected appel- majority A of that testimony not indicative reliable. His was error, ground of that lant’s eleventh community. in of the climate Ray permitting court had erred trial alle- Rather, single unproven it reflected a officer, Orange police to Long, long time obviously biased third gation made stage of his trial testify punishment at alone, knowledge Standing party. pros- for the reputation witness as a “bad” to qualify not a witness act will Appellant against appellant. ecution and reputation of an testify he knows the that the State did not that because asserted bad, and we so hold. accused to be qualified Long was a “bad” establish that Long erroneously testimony of Officer witness, Long not have reputation should admitted. prosecu- testify for the permitted to however, conclude, that admission We disagreed. majority tion. The Though testimony was harmless. stating opinion, therein I with dissented testify on only witness to Long was the why appellant was correct why punishment hear- at the behalf of State holding Ray that panel’s majority of the concise and unem- ing, his witness, reputation Long, the State’s sole learned of the never bellished. testify qualified to to to be was established purport- was the incident which extraneous legally reputation was appellant’s “bad” him- Appellant testimony. ed basis for this erroneous. in his own behalf no evidence self offered argument In final proceeding.8 during this this Court holds majority Today, Long’s testi- did not mention prosecutor permitted Long should not have been that the violent emphasized mony. Instead witness for testify reputation as a “bad” surrounding the offense9 circumstances not the State did prosecution, because jury to plea to the and made testify. so qualified to that he was establish pro- in the law enforcement fulfill its role majori- damage the me, light of what To appellant a life sentence. by giving cess in the future opinion might have ty panel punishment the argument on Prior to the system, jurisprudence our criminal caused the record that stated for prosecutor Long not holding should that majority’s objection have no would State testify, permitted to have been present reopening the case quali- he was establish that did not State invita- probation, but this eligibility for wit- reputation testify as a “bad” fied to by appellant. declined expressly tion was is indeed breath prosecution, ness for conclude of the record we this state On majority’s light of the air. of fresh testimony was harm- that admission mem- necessary for holding, it is now See reasonable doubt. beyond a less their bar to mutilate the bench and bers of State, supra. Mitchell v. evidence, tearing out leading works how a State’s therein on chapters rehearing over- Appellant’s motion may qualified, reputation witness “bad” ruled. made everything that was virtually in the house This, at trial spite concession of the State’s 8. prob- windshields possible glass. smashed the He then the evidence as control, driveway of parked in the impulse not admissible while of two cars lem with windows surely produc- during guilt/innocence, getting car could into his own before residence mitigation punishment at ed as evidence street. driving down the his sister's house phase trial. See Cowles that he brother-in-law to his There he admitted State, supra. the deceased. had shot guilt/innocence showed The evidence 9. panels since the fall of not had has 1. This Court shooting place, appellant obtained took after the proceeded to shatter jack car and from his majority finding appellant guilty. However, I which is what believe I am panel’s opinion agree majority implicitly commanded. unable there possibility a reasonable agreement Notwithstanding my with the jury’s such error contributed to the deci- majority’s holding, that because the State appellant’s punishment sion assess Long qualified did not establish eighty-five years’ confinement in the testify as a “bad” penitentiary, years number comes which prosecution, the he should not have been perilously close to the absolute maxi- permitted testify prosecution, for the but jury mum that the could have assessed majority I believe that of this punishment. Emphasizing as his implicitly Court has written now a new test negative, jury posi- the when the saw the error, unintentionally for harmless or has tive, majority as the does in order to reach inadvertently test, ignored or the old I am its the in conclusion that error this instance compelled still in dissent this cause. harmless, although methodology majority opinion incorrectly holds helpful, is I in this is find instance that it that the error was harmless both unacceptable way an answering the guilt punishment. light In of the question whether the error was harmless. record, read, I carefully which have and the presence The record reflects that in the formerly test that existed make the de- jury prosecution the established that erroneously termination whether admitted Long ordinary no “bad” harmless, testimony evidence or is which prosecution. Long for the testified applies guilt punishment, test both I employed by Orange that he had been the agree cannot that in this the instance error Department years Police for over nine beyond was harmless a reasonable doubt patrol sergeant approxi- had been a punishment as to the by that was assessed mately years. Long five Not did occu- jury. the important py position in the City error, The test for is harmless not Orange, he also he in testified that lived set out in the majority opinion, is not general community appel- the same where whether a conviction could have had facts, lant lived. Given these there not improper the testimony, evidence or possibility Long’s that errone- reasonable nor is punishment it whether the that was ously testimony admitted contributed assessed would not have been assessed jury’s decision to assess improper without the evidence or testimo- punishment (85) years’ eighty-five con- Instead, ny. test whether there is a I penitentiary? finement believe so. reasonable possibility erroneously Judge I interesting find rather might admitted evidence or have Clinton, opinion, of majority author contributed either to the conviction to just recently following stated Clem punishment that was assessed. Gar- (Tex.Cr.App.1 ons v. 605 S.W.2d 567 (Tex.Cr. rett v. 980),2 panel opinion au a unanimous App.1982). thored the facts of Court: “Under

I agree majority by with the in this year this the 25 sentence assessed case possibil- unusual, instance there is not jury a reasonable this cause is not but ity jury’s question presented that the error here. contributed to is not dead, ing supra, facts in Clemons v. from the the concessionaire was trior fled. cause, standpoint of the defendant in that are were The defendant and her husband arrested egregious. The facts reflect that the defendant City, they gone apparently where had Kansas others, husband, and two one of whom was her more robberies. But for a commit armed gun shotgun points, both robbed an em- miracle, arresting police one or more ployee Municipal Austin Auditorium of would been shot death officers have money per- of his owner’s and robbed him why guess good Your is as as mine defendant. upon property. Acting sonal instructions from this "rational” chose to mete out a mere hijacker, her husband shot the the defendant twenty-five years. Thereafter, concessionaire in the back. think- question say not we whether or can beyond that this harmless evidence was given the

reasonable doubt number of

years (572). jury.” assessed In case, Judge found a unani- Clinton panel

mous error was not harmless

as to the assessed. instance, punish- because of the eighty-five (85) years

ment of that was

assessed, Long’s in light status in community, as well as the fact that he in the same

lived as did I

appellant, agree cannot that the above harmless,

question, whether the error negative,

should be in the answered respectfully must

therefore dissent to the

majority’s holding that the error was harm- beyond a

less reasonable doubt as to the jury. that was assessed Clemons

If the error was harmless State, supra, is it how on earth harmless

in this case? HILLIARD,

Ex Parte Jodie A.D. III.

No. 68963. Texas, Appeals

Court Criminal Banc.

En

March 1985.

Rehearing April Denied

Case Details

Case Name: Wagner v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Feb 1, 1984

Citation: 687 S.W.2d 303

Docket Number: 61601

Court Abbreviation: Tex. Crim. App.