Bernardo Licon v. State ( 2005 )

NO. 07-03-0323-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
FEBRUARY 18, 2005
______________________________
BERNARDO LICON JR., APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-400918; HON. CECIL G. PURYEAR, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.1
In this appeal, appellant Bernardo Licon, Jr. presents one issue, contending the trial
court reversibly erred in excluding the testimony of Daphnie Craft and that his conviction of
aggravated assault with a deadly weapon and the resulting jury-assessed punishment,
enhanced by a prior conviction, of 30 years confinement in the Institutional Division of the
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John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004).
Department of Criminal Justice must be set aside. Disagreeing that reversible error is
shown, we affirm the judgment of the trial court.
The State’s evidence showed that on September 5, 2002, Amor Wharton was at her
home in Lubbock when appellant, who was her ex-husband, entered her home. Once
inside, she averred, appellant started “screaming and hollering” and hitting her, and she
headed to the telephone. As she did so, appellant grabbed the telephone and, using the
“curly part” of the line, started choking her. As he did so, he told her that if she was going
to call anyone, she “better call and tell them [she] was fixing to die.” As the assault
progressed, she said, appellant “started wrapping it, so I just let go of the receiver and I just
tried to grab the cord off my neck, and then he grabbed the receiver and just started hitting
me over the head with it.” Then, she said, she let go of the cord and was able to retrieve
some coasters off a table, hit appellant on the head with them, which partially stunned him
and allowed her to free herself. She also pretended to be talking on the phone, and
appellant fled the scene. Shortly after the incident, appellant’s boyfriend returned home.
Finding Amor in hysterics and appearing to have been assaulted, he took Amor to the
sheriff’s office to report the matter. As a result of the accident, Amor suffered a black eye,
bumps on her head, some cuts, and some marks on her neck.
In the matter giving rise to appellant’s issue, he called Daphnie Craft, Amor’s
daughter, to testify about Amor’s “tendency to exaggerate what’s actually happened” and
her not being truthful when it involved appellant. The trial court conducted a voir dire
examination of the tendered witness. Because of that voir dire examination and the ensuing
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exclusion of the witness’ testimony, we set out in full the pertinent parts of that examination.
The record shows the following:
Q: [By appellant’s trial counsel] Daphnie, how old are you?
A: Sixteen.
Q: Okay. And is Amor Wharton--is she your mother?
A: Yes.
THE COURT: Ma’am, pull that microphone towards you and keep your
voice up. I’m having trouble hearing you and I know the Court Reporter
probably is, too.
Ms. Craft: Okay.
Q: . . . In September of 2002, were you living in her home, or in your mother’s
home, with John?
A: No, I was staying with my dad.
Q: Okay. I have talked with you about the possibility of your testifying in this
case.
You understand you’re not going to be asked about any kind of specific events
of anything that your parents have done to each other?
A: Yes, sir.
Q: I was intending to call you as a reputation-type witness.
Do you understand what that means?
A: Yeah.
Q: Okay. You’ve known your mother, I guess, for 16 years?
A: Yes, sir.
Q: Okay. And you’ve known your father also for the same period of time?
A: Yes, sir.
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Q: And during that period of time you’ve developed an opinion about--in the
case of your mother, her propensity towards, I guess, being aggressive or
violent in a situation where, well, the general population is involved?
A: Yes.
Q: Is she violent towards other people in general?
A: No, she is not violent towards people in general. She is just violent towards
my dad.
Q: Okay. My next question was going to be if your opinion about her
propensity towards being aggressive or being violent where your father is
concerned is different from the general population.
The next question I have is about your mother’s--your opinion as to your
mother’s truthfulness in testifying or stating things as being fact.
Do you have one opinion for your mother’s truthfulness generally as to all
persons?
A: Well, my mom, she is not really a violent person. It’s just that sometimes
she gets real mad at my dad and, I don’t know, she gets kind of crazy.
Q: That’s probably more detail than what the other questions were asking for.
A: Well,--
Q: I was asking about her truthfulness.
Does she--do you have an opinion about her reputation for being truthful, as
to just generally?
A: Yes. She can be truthful. But sometimes she can be a bit--she’ll
exaggerate more than what he really is.
Q: You said “he really is,” are you referring to she is not always as truthful
when it involves your father?
A: Yeah. Yeah.
The witness was passed to the State, who questioned her as follows:
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Q: Ma’am, I guess really the question is, do you have an opinion in the form
of --either your opinion or your mom’s reputation in the community in which
she resides as to her truthfulness or untruthfulness?
That’s what I need to know from you.
Do you have an opinion yourself or are you familiar with her reputation in the
community where she lives, as to where she lives, as to her truthfulness or
untruthfulness?
A: Like around her work or around her neighborhood?
Q: Yeah, around the community.
A: Yeah, she is usually truthful to people.
Q: Okay. So her reputation is that she is truthful?
A: Uh-huh.
Q: And you’ve got to answer “Yes” or “No.”
A: Yes.
Q: Okay. So that’s what--so, her reputation is that she is truthful?
A: Yes.
Q: Okay. And she doesn’t have a reputation for being untruthful?
A: Unless, like, it’s to us or, you know,--
Q: She’s got a reputation of being untruthful to you?
A: Well, yeah, but not to where it’s real bad, It’s just like, “Are you going to
come pick me up,” and she’ll say, “Yeah,” and then sometimes she won’t
come.
Q: Okay. But I mean--
A: It’s just--it’s not to people out in the community, like, people she sees. Like
for once, it’s just to, like, people she’s known for a while, she sometimes lies
to.
Q: So, is your opinion then that she is truthful?
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A: Yes, to people she’s met barely.
Q: Okay. To people that she’s barely met?
A: Yes.
Q: Okay. So, she is not going to exaggerate to people she’s barely met?
A: Well, if we’re like under the--like, right now, if we’re in court, yeah, she
exaggerates a lot. Or, like, when we’re in front of our family and she’ll start
telling a story, she’ll get a little bit too--she’ll say more of the story than what
it really is.
Q: Okay. Well, here it is, Daphnie, because you’re telling us two different
things. Okay? You’re saying she is truthful and then you’re saying she is
truthful to people that she meets. And now, all of a sudden, you’re coming
back and saying she is untruthful.
So, either she is truthful or she is not truthful, and I need to know which one
it is.
A: She is truthful only to people that she’s barely met. But like, if she is under
a state of law or if she’s in front of her family or people she’s known for years,
she tends to lie sometimes.
Q: Okay. So your opinion is that she is truthful?
A: Uh-huh.
Q: And you’ve got to answer “Yes” or “No.”
A: Yes.
Q: And you said that she is violent towards your dad?
A: I mean, since we’ve grown up, yeah.
Q: How has she been violent towards your dad?
A: Arguing. The last time that they got into a fight, or an argument, actually,
she hit him on the head with a coffee mug and hit him on the head with a
phone, and she got arrested. And my little brother was sitting in his lap
whenever it happened. And--
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Q: She got arrested here in town?
A: Yes.
Q: Here in Lubbock?
A: Yes, sir.
Q: Okay. And I guess your dad pressed charges on her?
A: No, sir.
Q: He didn’t press charges on her?
A: No, sir.
Q: Have you ever seen your dad be violent towards her?
A: Yes, I have seen--I have seen both of them.
Q: Okay. Did--have you talked with your dad about what happened on
September 5th, 2002?
A: A little bit. He really hasn’t told me that--well, he told me--my mom told me
that she just--
Q: Okay. I don’t want to know what your mom told you yet. I want to know
what your dad told you.
A: Yeah, he told me about it.
Q: And what did he tell you?
A: That he had went over there to get my little brother’s Social Security card
and she didn’t want to give it to him and that she tried to hit him with the
phone.
Q: So, he went over there to get in the house to get your little brother’s Social
Security card?
A: Uh-huh.
Q: You’ve got to answer “Yes” or “No” because she is taking down what you
say.
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A: Yes.
Q: Okay. Did he say that he was invited over there?
A: Yeah, he had called before he went over there.
Q: And she invited him over there?
A: Yes, sir.
Q: Okay. That’s what he says?
A: Uh-huh.
Q: You’ve got to answer “Yes” or “No” because she is taking down what you
say.
A: Yes, sir.
Q: Okay. And what else did he tell you?
A. That she didn’t want to give it to him. That’s it.
Q. Okay. And so, what did he do because she didn’t want to give it to him?
A: I don’t know. He didn’t tell me the rest of the story because I was leaving
with my boyfriend --well, my husband, and then, I--my--I see my mom the next
day and she told me that he had hit her with the phone, or something.
Q: Okay. And who told you that? I’m sorry. That he had--
A: My mom told me.
Q: Okay. And what happened then?
Did she have bruises on her?
A: No.
Q: She didn’t have any bruises on her?
A: Well, I don’t know because I was talking on the phone to her because she
was with John at his house and I was at my boyfriend’s mom’s.
Q: Okay. How old is your boyfriend?
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A: He is 19.
Q: Okay. And so, what happened then?
Did you see her later on that day, a couple of days later?
A: No, I didn’t see her for, like, maybe two months.
Q: Okay. So you don’t know if she had bruises on her or not?
A: No, sir.
Q: Okay. And you don’t know what happened that day; right?
A: Huh-uh.
Q: You’ve got to answer “Yes” or “No” because she is taking down what you
say.
A: No, sir.
Q: And have you talked with your dad about anything else that’s happened
in relationship to that day?
A: No, sir.
Q: Have you talked to him about coming to court to testify?
A: No, sir.
Appellant tendered Daphnie’s testimony for the expressed purpose of showing the
State’s witness Amor Wharton’s “tendency to exaggerate what’s actually happened” and her
not being truthful. The court commented: “The test for truthfulness is whether she has a
reputation of being truthful in the community in which she lives. And her answer to that
question was ‘Yes.’ I don’t think she can qualify it, Counsel.” The trial court then sustained
the State’s objection to Daphnie’s testimony.
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The admissibility of evidence generally and the qualifications of a witness to testify
is within the discretion of the trial court and its decision to permit or not to permit the
testimony will not be disturbed absent a showing of an abuse of discretion. Burden v. State,
55 S.W.3d 608, 615 (Tex. Crim. App. 2001); Harnett v. State, 38 S.W.3d 650, 657 (Tex.
App.--Austin 2000, pet. ref’d). An appellate court will not reverse a trial court’s ruling unless
that decision falls outside the zone of reasonable disagreement. Burden v. State, 55
S.W.3d at 615.
Under the Rules of Evidence, a party may attack a witness’ or other declarant’s
general capacity or disposition to tell the truth. Schutz v. State, 957 S.W.2d 52, 69 (Tex.
Crim. App. 1997); Tex. R. Evid. 608(a). Specifically, that general lack of credibility may be
shown by demonstrating the witness has a poor reputation in the community for truth or if
a specific character witness testifies that, in his opinion, the fact witness is not a truthteller,
and, in the witness’ opinion, is not worthy of belief. Dixon v. State, 2 S.W.2d 263, 272 (Tex.
Crim. App. 1999).
We have set out Daphnie’s voir dire examination in detail above. We cannot say the
trial judge abused his discretion in concluding that it was not sufficient to meet the
requirement that the witness aver that Amor’s general reputation for truthfulness was bad.
Accordingly, appellant’s sole issue is overruled and the judgment of the trial court is
affirmed.
John T. Boyd
Senior Justice
Do not publish.
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