*1 hold the fraud here We shown
will toll of Articles 5532 and the limitations Therefore, Stonecipher’s
3773. action en judgment against
force the the Estate Butts, deceased,
Thomas and Irene Butts
Babington upon finding will not be barred diligence
of fact that reasonable was exer attempting
cised in to discover assets of the
judgment debtors.
The judgments of the courts below are
reversed and the cause is remanded proceedings.
trial court for further
GARWOOD,J., sitting. WARD, Jr., Appellant,
Louis Texas, Appellee. STATE
No. 53678. Texas, Appeals
Court of Criminal
En Banc. 15,
Nov. 1978.
Rehearing Denied Nov. 1979. Opinion
Motion to Withdraw Prior
Appeal Abated Jan. *2 money.
some The deceased let Johnson in They and proceeded locked the door. then into the bedroom. deceased’s Approximately ten to fifteen minutes la- up ter a car drove front deceased’s Dolly Aught, home. the deceased’s next neighbor, appellant get door the out of saw car, around, trunk, open get his look something pocket. it into out and appellant The then walked to the deceased’s appellant front door. The knocked twice. knock, After the first the deceased looked ap- out of her bedroom window saw pellant. pick up The deceased started to her purse appellant as the entered the house appellant and came into the bedroom. The pistol had a in one hand. As Johnson watched, fired two shots at the deceased. The appellant then left. Johnson went outside where he encountered of neighbors crowd who had heard the shots. At that time he stated that “[h]e shot her and I think Aught she’s dead.” Tarrant, Houston, Bob appellant. police then called the and an ambulance. Vance, Cаrol Atty., S. Clyde Dist. F. police investigation The revealed DeWitt, Sparks, III and Kenneth W. Asst. entry, there been had a forced that one .22 Houston, Dist. Attys., Vollers, Jim D. floor, “hull” on caliber and that Austin, Atty., State’s for the State. pistol .22 caliber was found close to the pistol all
deceased. The .22 caliber had six bullets in it. The defensive revealed that OPINION days two alleged ap- after the murder the
ROBERTS, Judge.
pellant
police.
turned himself in
This
appeal
is an
from a
conviction for
took
essentially
the stand and
tes-
murder.
jury
the appellant’s
assessed
tified that he fired the shots which killed
punishment at
years’
twelve
deceased,
confinement in
but stated that he had been
Department
Texas
by
According
Corrections.
threatened
the deceased.
appellant,
the threat was made because
contends,
alia,
The appellant
inter
up
breaking
with the deceased and
judge
the trial
overruling
ap-
erred
going
his wife
He
family.
back to
also
pellant’s objections to
three “have
testified that when he entered the de-
heard”
prosecutor
asked
day
shooting
ceased’s home on the
during
guilt-innocence stage
of the tri-
a pistol
deceased aimed
at him.
al. We reverse.
grounds
first three
of er-
evening
record
reveals
on
following
ror focus on the
three “have
11, 1974,
December
Arthur
Johnson re-
propounded
which were
ceived
phone
call from the deceased.
prosecutor
on
phone conversation,
Pursuant
to that
John-
during
guilt-inno-
cross-examination
stopped by
son
the deceased’s house at 3213
stage
cence
of the trial:
Sumpter 8:45
m.
approximately
a.
12, 1974,
the deceased
December
to lend
[BY PROSECUTOR]
Ward,
days
Dorothy
“Q
before
death
heard that on
Mrs.
27, 1972,
husband,
your
Gayden [deceased], that
hus-
your
December
Ward,
defendant,
band,
convicted of unlaw-
Louis
used
vehicle
weapon,
fully carrying
prohibited
Dorothy
Gay-
to ram
vehicle
to-wit,
given a
hun-
pistol,
one
and dented
her
den [deceased]
*3
dred dollar fine?
side door?
driver’s
“May it
[DEFENSE COUNSEL]:
all
anything
“A I don’t know
about
Court,
please
object
the
we
to coun-
that.
one,
question;
testi-
sel’s
counsel is
“We ob-
COUNSEL]:
[DEFENSE
two,
fying;
improper predi-
it’s an
hypoth-
it’s
ject
suggest
to this. We
three,
impeachment;
cate for
esis,
grounds we’ve
on each of the
irrele-
matter is immaterial and it’s
form of
offered.
It’s the rankest
vant;
assuming
yet
facts not
it’s
gimmickery.
object to it.
We
and, five,
improper at-
proven
it’s
It’s overruled.
“THE COURT:
upon
tack
this man’s character.
you
Have
“Q
PROSECUTOR]:
[BY
Objection
over-
“THE
COURT:
that, ma’am?
heard about
ruled.
all
anything about
“A I don’t know
“Q
you
Have
[BY PROSECUTOR]
that violent.”
that. He wasn’t
that,
heard
ma’am?
although the
appellant
The
contends that
“A No.
wife
pistol
“Q
that he had a
You didn’t know
appellant’s reputation
issue
conviction?
were inconsist-
to
did not relate
acts
again, please?
you say
“A Would
that
introduced
trait
any
ent with
“Q
pistol
had
Did
know that he
a
testimony.
her
conviction?
State,
upon Brown v.
appellant
relies
“A What date?
617,
(Tex.Cr.App.1972),
477
619-20
S.W.2d
27,
“Q
It was December
stated:
in which this Court
Yes,
pistol.
“A
that
I know about
that,
part
of its
general
“The
rule
ma’am,
“Q
heard,
De-
Have
that on
cross-examination,
permitted
the State
8th,
approximate-
Sunday,
cember
if
has
witness
to ask the character
the shoot-
ly
days
four to five
before
of misconduct.
act
heard
Ward,
husband,
en-
ing, your
Louis
whether
However,
may not ask
the State
Dorothy Gayden
countered
[de-
knowledge of
personal
had
witness
work, Avalon
place
her
ceased]
framed
act,
question be
may
nor
Store,
Drug
beat her with his
actually
has
the act
imply
so as
kill
fists
her?
and threatened
State,
prereq-
as a
been committed.
“Object to
must have
asking
question,
COUNSEL]:
[DEFENSE
uisite
testimony.
assuming
He’s
counsel’s
actually
act
faith belief
yet proven into evidence.
facts not
944
Hart v.
occurred.
and,
It’s immaterial and irrelevant
v.
148
Stewart
(Tex.Cr.App.1970);
three,
improper predicate
an
it’s
(1945).
480,
167
Tex.Cr.R.
“Q
[BY
ruled.
heard,
impeachment of
man's character. We
“THE COURT:
he has.
object
something that
PROSECUTOR]:
ma’am,
to counsel
that on
I
this witness or this
don’t
Objection
testifying from
Tuesday, two
know what
strenuously
Have
over-
about which the
be inconsistent with
[Footnote omitted].
Cr.App.1965).
See
“The
[******]
[******]
Pace v.
only requirement
witness
398
S.W.2d
is that
has testified.
123
the act
(Tex.
trait
He
has been
drinker.
kept
“It should
in mind that
“A
never
purpose of the cross-examination is not to
“Q
night?
come home at
Did he
person
discredit
whose behalf the
“A Yes.
rather,
testifying,
pur
witness is
“Q
the chil-
Was he
father to
pose
weight
affect
of the wit
dren?
testimony.
ness’
Kennedy v.
“A Yes.”
(1947);
Tex.Cr.R.
“Q Prior to the time that met Doro- family “Q supported Has he as a your thy Gayden about three [deceased] provided pa- breadwinner and also years or four ago, type what of hus- support rental as the father of his band was Louis Ward? eight children? Here in last “A He my to me and children. good daddy? has he been a months “Q Did he a daily work on basis? “A Yes. Yes,
“A then he was. “Q Has he been home regularly? “Q type What of work did do? Yes, “A he been home as much as he can. “A was a truck driver. He.
“Q “Q Does Does he work? he drive a truck now? Yes,
“A Yes. “A when he can. “Q e.very day? “Q Does he work his Does he own own truck? “A Yes. “A Yes.
“Q good money? Did he make “Q A tractor a trailer? “A driving When he was for Port Hous- “A Yes. ton, making he wasn’t as much as “Q you, Has he been husband when driving he started for himself. ma’am? “Q lazy Is Louis man? “A Yes.” “A always No. He’s worked. Ever contends that the case The State (cid:127) since I knowed him. Childs v. controlled “Q given Was he drink? excessive (Tex.Cr.App.1973). In Childs the de- “A Pardon? pun- sought probation. During fendant ' “Q stage Did he a lot? of the trial defendant’s drink ishment geared showing if was wife was not towards father testified that the defendant granted keep the de- probation reputation, he would good, lawful character or home, him, employ supervise at his fendant appellant’s con proving directed conduct, exemplary con- and assist him in his involvement with duct before and after duct. The father also testified defendant’s the deceased. See Odum that the defendant’s conduct had been Els v. (Tex.Cr.App.1975); S.W.2d while the had been at home. On defendant This (Tex.Cr.App.1975).1 cross-examination, the defendant’s father conduct was essential was asked if “he had heard” that his son had threatened him claim that the deceased pos- robbery hаd been and for indicted he entered pointed gun at him when living with session of marihuana and day house on the the deceased’s prostitute who was a heroin addict. also appellant’s ad despite the homicide. defendant contended that his father’s that the mission in brief issue,2 was not that of a we his wife character witness and that wife was not a conclude that improper. This and answers therefore were appellant and that character witness for the Court stated that the father’s prosecutor propounded by geared jury to persuading towards improper. werе therefore grant probation to the defendant and held that: However, testimony of even if the
“Appellant may not construed as appellant’s wife can be [defendant] good testify witness about his character for the making witness her in ‘placing his raised, most, traits but avoid testimony at appellant, her simply by specifically not ask- evidence’ being good hus reputation for appellant’s ing en- whether [defendant] prosecutor’s ques and father. The band good reputation in the communi- joyed a repu appellant’s tions were directed State, supra .” at ty. . Childs v. prosecutor’s The illegal activity. for tation 909. to acts did not relate questions therefore character traits case, however, with the inconsistent present The unlike testified about.3 appellant’s appellant’s wife testimony Childs. The. Salazar, drugs. the defendant’s sister testi majority’s In Although 1. I dis- dissented from the stage Els, during punishment position trial am decision of fied in I bound of been a member this Court. had that defendant not had no reason that she her household and 2. cannot It well established that this Court not finish could believe that the defendant accept allegations appellants’ briefs as facts in probation up if of live to the terms school and supported Wash not the record. which are probation granted. that the was We there held State, (Tex.Cr.App. ington 485 500 S.W.2d v. and sister was a defendant’s 1973); State, 473 525 S.W.2d Devereaux v. your “have were several that (Tex.Cr.App.1971). appellant’s admission proper. testimony put reputa his that the wife Aldrighetti Salazar and in both The witnesses supported by in not the record. tion We therefore issue is those testified similar to testified to matters by disregard it. in case. wife However, Aldrighetti dealt both and Salazar State, (Tex. Aldrighetti v. Cf. punishment sole where was the situatiоns with State, Cr.App.1974), v. and Salazar ques- Aldrighetti, we noted that In issue. Aldrighetti, 1973). (Tex.Cr.App. In de prior were convictions related to tions during punishment wife testified fendant’s 37.07, 3(a), Section under Article admissible stage husband, supported was a of the trial that the defendant n (as in In Salazar Ann. C.C.P. children, Vernon’s and that she their properly ), implied we Childs prior convictions. was aware of the defendant’s impeach the witness’ presented went no error was We there held that probation. reputation justified objection, the defendant’s prosecutor, without an where the asked the defendant’s that contrоlling. neither case if had heard wife she Also, may pos fact that a man have commit- defendant had been convicted necessarily in- marihuana, offenses his extraneous ted “a violation session and ordinance,” as a husband selling dangerous with behavior weapon’s consistent and for prejudicial legally We conclude that factually reversible tified either under this error during was committed record. cross-ex-
amination of
wife.
in
set out
shows that
wife testified
judgment
is reversed and the cause
prior
meeting
to his
the deceased he
remanded.
children,
good to his
he worked оn
driver,
DALLY,
daily
basis
a truck
he worked
dissenting.
Judge,
every day,
been
lazy,
he
had never
(Tex.Cr.
Childs v.
For all of the reasons I dissent. on the deceased’s house he entered the DOUGLAS, J., joins. Thus, despite the day of the homicide. brief that the admission OPINION STATE’S MOTION ON testimony of his wife FOR REHEARING issue, we that the conclude for the a character witness wife was not ODOM,Judge. questions pro appellant and This is from a conviction appeal an pounded by prosecutor were therefore original submission the convic- murder. On improper. asked tion was reversed because State “However, even if the during improper questions its cross-exami- mak- appellant's wife can construed wife. nation appel- for the ing character witness her a *7 testimony The State contended that the raised, most, the lant, her given by wife direct exami appellant’s on being good a reputation for appellant’s subject nation made her a character witness prosecutor’s father. The and husband questions asking if to cross-examination - were directed of misconduct specific she had heard of acts activity. prose- illegal reputation for posi inconsistent with that character. did relate questions therefore cutor’s accepted by urged by appellant, tion and the character inconsistent with to acts Court, you the was “have that such wife testified the traits are inquire as to acts that questions must about.” character trait specific inconsistent with the rehearing the State In its motion rule the testified. The to which witness to challenge holdings.1 In its State, (Tex. attacks both from Brown S.W.2d holding original on part of the second our Cr.App.), quoted: was inquired in about the hаve argues of the three acts evidence of The State also other questions. objection. heard same facts was admitted without only one as to was such other evidence There clearly record indicates that the en- submission, argues, “The acts State elder Childs’ tire tenor of the inquired are about which State incon jury geared persuading toward sistent with the character traits kindness of by showing appellant probation grant sobriety Appellant’s wife and about which abiding law good motion, however, them his character Later testified.” in its a wit- Appellant may not havе concedes, habits.1 the State “The entire tenor good character testify about ness geared per wife’s toward reputation ‘placing his in but avoid traits suading jury Appellant good was a specifically ask- simply husband, evidence’ provider father and for the fami enjoyed good ing whether ly.'' (Emphasis added.) The State does not community.” reputation explain how a misdemeanor conviction for “1 pistol 617, unlawfully carrying is inconsistent See Brown v. 477 S.W.2d of the rationale of the rule which discussion husband, father, being pro with or permits witness the State ask vider family. for the We do not see how of about acts of misconduct the acts related to the trait accused.” raised, reputation even if the wife were a The fallacy in the Childs rule is that it part witness. We adhere to the of second ignores the difference between character holding original our on submission. The act reputation. Although it cites the inquired ques about in the have heard Brown discussion the rationale for have tion must be inconsistent with the character questions, heard the Childs’ rule is trait testified to the reputation witness. inconsistent with that rationale. Here is Brown v. supra; Lockhart v. the Brown discussion of that rationale: 514; 209, 172 Tex.Cr.R. Villar riel v. 163 Tex.Cr.R. “The rationale behind the rule is that 222; Kennedy v. 150 Tex.Cr.R. reputation opinion is an hearsay. based on holding S.W.2d 400. This alone would reputation witness opinion states his require denying rehearing. the motion for based on that which he has heard from concerning others the defendant. In or- part In the other of the State’s motion opinion, der to test this prosecution rehearing, challenges in which it allowed to determine whether the witness original submission, first holding (not has knows) heard whether he of acts argues, “The State entire tenor of reports which would be inconsistent geared per- wife’s toward with a reputation. theory suading jury accept Appellant’s de- that if truly the witness is familiar with by proving fense character and defendant, reputation he will law-abiding impor- habits.” Because of the reports have also adverse case, upon tance this other issue in the circulating community. are in the This is reversed, judgment which the will we consistent with nature application also address the of Childs v. is, evidence, an based on (Tex.Cr.App.), hearsay. question of whether subject was a
pursued
kept
mode of
whatso-
“It
cross-examination
should be
mind that
purpose
ever.
cross-examination is not to
*8
para-
this
The core of
Childs rule is
person
discredit the
on whose behalf the
graph:
rather,
pur-
testifying,
is
“True, appellant’s
not use
pose
weight
counsel did
is
of
to affect
the wit-
words,’
your
State,
‘magic
does
son have a
testimony. Kennedy
ness’
v.
150
peaceable
general
being
215,
of
reputation
(1947);
Tex.Cr.R.
say, an examination to opinion of improper testimony of pearance hearsay witness has heard inconsistent character, of apparently it was opinion proper.” with his changes effects and in fered to show the you purpose a have Since the of relationship with behavior associated question to witness who heard test deceased, not any in event was with the and hearsay to be familiar with and purports reputation of his as offered reputation, a wit rumors of the accused’s Therefore, in event did community. no professed be whо has not familiar ness questions on you heard it authorize have reputation community in the with that showing that Absent cross-examination. by ques logically could not be discredited testify familiar with and the witness was tions of whether he has heard other rumors community, in the ing reputation reputation. of acts inconsistent with that probative val questions were without such stated, no basis Simply there is reasonable (i. purpose e. to only on authorized ue their questions for of a asking you have heard rep sincerity familiarity with that test opinion personal to his witness who testifies impermis only serve utation), and could character, opposed of someone’s by jury purpose prejudicing of sible reputation person’s of that character. acts of mis rumors of inadmissible showing testifying to appellant’s wife was not Since that To the extent by conduct the accused. his reputation, no have heard State, supra, authorized use v. Childs familiarity reputation to test with that the cross-exam have heard all. should have been allowed at gave testimony any witness who ination upon reflecting char might seen as that be hand, proper it is not the other On acter, though no even by personаl evidence of prove character unsupported given, that case State, opinion Houghton v. or acts. reason, it is over precedent 535; 191, Lutz v. 171 345 S.W.2d Tex.Cr.R. ruled. 317; 503, State, 146 176 S.W.2d Tex.Cr.R. rehearing de- State’s motion State, 242 Brown v. 92 Tex.Cr.R. S.W. nied. 255; 218; Tex.App. v. 13 Brownlee Evidence, Ray,& Texas Law McCormick ON MOTION FOR REHEARING Yet, improper evi Sec. 1432. when such DOUGLAS, dissenting. Judge, admitted, may under dence is State State’s motion majority im denies the guise additional rebuttal rehearing. 91 Tex. to file a motion proper evidence. Johnson v. for leave are not the at the trial (on objections motion for The made 241 S.W. Cr.R. appеal. See the on the contentions Apart from these limitations same as rehearing). submission. original evidence on may proven, on be how character us for before proof properly appearance improper The matter similar in it held original submission pur review. On may admissible other wife by appellant’s con poses, as to show defendant’s such children, worked to her and his duct, of mind at or condition appearance drinker, came home daily, been time, relationship between had never particular or the her a deceased, night, did not mаke without sub the accused and the majority states ques character witness. jecting the witness to direct See, v. Odum on cross-examination. tions merely with v. examination concerned (Tex.Cr.App.); Els 533 S.W.2d and after appellant before "behavior of (Tex.Cr.App.); Clark romantically involved (Tex.Cr.App.); appellant became v. make her (Tex.Cr. and did not with the deceased” Hurt *9 new What reputation witness. V.T.C.A., 19.06. or Code Sec. character App.); Penal mony permits rule of law this that is offered in most cases where prove is that one to good a period yet probation sought imрres- character for limited of time to make a jury. the witness does a before not become character sion witness? This case is contrary Childs v. reputation, is distinct from Character State, 491 (Tex.Cr.App.1973), S.W.2d 907 as merely of character. See evidence dissenting by opinions noted on original Ray, Texas Law of Evi- McCormick Childs, proof submission. In that dence, Section been good boy accused had a since he had good that When one testifies another a been home period. a limited The man, good of character. this is majority noted that for proba- Childs asked ordinarily proved by proof good This is of tion and would leave the impression that testifies, has, reputation. When one so he appellant did not. The in the opinion in this by before the application case made an proba- case, subject been to cross-examination tion. He wanted to show he a that questions if the witness had heard of acts good man so that he get probation could part a inconsistent with of defendant regardless what of else he wanted to show. good reputation. case, In the Childs the father of defend- Now, according opinion of ma- ant was asked defense counsel: jority, may testify one have witnesses “. . . good And has his conduct been saint, accused is a and the State cannot test since he been has there while he has been knowledge of the witnesses and find out there at “Really home?” He answered: testimony. upon what he has based his has.” This has not been rule before and The Court wrote: short, if should not be the rule now. In “. . Appellant not may have a “repu- counsel not ask about the word does testify witness good about his character proving good tation” in that an accused a traits ‘placing but avoid in man, impression then false will be left a simply evidence’ by not specifically ask- jury. with the ing whether appellant enjoyed a good rule, one today, The new is that reputation in the community. Court prove may character a but that witness did not in permitting err the cross-exami- a if such witness is not character witness nation.” period. a limited There covers proper Court held that it was has never such a rule and it should been prosecutor to determine whether or the rule now. be witness had heard of acts inconsistent with rely judges upon Trial should be able good reputation. Childs’ The Childs past decisions of this Court and not well reasoned and it was unanimous. reasoning. of tenuous reversed on some sort There proving was much more detail majority has to overrule the Childs the present case than in the case, supra, to reach its erroneous result. Childs case. holding today prevents asking It makes no at what time the difference specific where a testifies that defendant has been good show traits of acts are admitted to man, good .a repu- issue character or majori- character of defendant. Will tation is raised. may prove specific ty hold that State When a witness testifies that defendant of a defendant to rebut acts misconduct man, good is a this is of charac- jury? impression a false left before the It conclusion, ter. makes no difference wife’s logical its Following the rule to a,witness slight there was a be allowed to ask the State should change in the he specific examples after met who has testified deceased. She testified that he was a if traits of defendant husband father and had never certain acts of bad she knows of testimony. been drinker. This was the kind of testi- conduct to rebut that *10 judges Trial will no doubt tend to limit general reputation proof
defendant deny proof acts because of opinion. granted
The motion should be and the
judgment be should affirmed. ON TO WITHDRAW
OPINION MOTION
THE PRIOR AND ABATE OPINIONS
THE APPEAL DAVIS, Judge.
TOM G. this
It has now been made known to State, ac- by proper
Court motion
companied by duly certified death certifi- 7, 1979,
cate, April died on Rehearing was
while the State’s Motion for Court,
pending before the man- in this
date of this Court issued. is-
Accordingly, the mandate will appeal is abated.
sued this case and prior to withdraw the State’s motion
opinions is denied. JACKSON, Appellant,
Michael W. Texas, Appellee.
The STATE
No. 57474. Texas, Appeals
Court of Criminal
Panel No. 2.
May 1979. Denied
Rehearing Jan.