Eric Paul Michael v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-207-CR
ERIC PAUL MICHAEL APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
------------
DISSENTING MEMORANDUM OPINION 1
FROM REFUSAL TO MODIFY ON
PETITION FOR DISCRETIONARY REVIEW
------------
On original submission of this appeal, this court affirmed Appellant’s
conviction, holding that impeachment of the complainant witness with prior
inconsistent statements was an attack on her character for truthfulness. We
1
… See T EX. R. A PP. P. 47.4.
reasoned that impeachment by prior inconsistent statements is always such an
attack, and that the cross-examination here thus justified rehabilitative opinion
testimony offered by the State from her former second grade teacher as to her
good character for truthfulness under Texas Rule of Evidence 608(a). Michael
v. State, 173 S.W.3d 829, 833 (Tex. App.—Fort Worth 2005). On petition for
discretionary review, the Texas Court of Criminal Appeals vacated and
remanded for consideration of the issue whether the character evidence was
properly admitted, based on the test of whether a reasonable juror would
believe the complainant’s character for truthfulness was attacked by cross-
examination, evidence from other witnesses, or statements of counsel. Michael
v. State, 235 S.W.3d 723, 728 (Tex. Crim. App. 2007).
On remand, this court assumed, without deciding, that the trial court
abused its discretion by admitting the evidence of the complainant’s good
character for truthfulness but again affirmed the conviction, holding that the
assumed error was nevertheless harmless because it did not have a substantial
and injurious effect or influence on the jury’s verdict. Michael v. State, No. 02-
04-00207-CR, 2008 WL 426180 (Tex. App.—Fort Worth, Feb. 14, 2008, pet.
filed) (mem. op., not designated for publication).
2
On March 19, 2008, Appellant filed his petition for discretionary review
by the court of criminal appeals of our decision on remand. On reconsideration,
I am convinced that our opinion on remand is wrong, and I disagree with the
decision of the majority not to withdraw and modify or correct the opinion and
judgment. See T EX. R. A PP. P. 50. I would hold that the trial court abused its
discretion by admitting the testimony of the complainant’s former teacher as
to the complainant’s character for truthfulness because the cross-examination
of the complainant was specific impeachment merely highlighting testimonial
defects in the accuracy of her memory. I would hold that allowing the
teacher’s opinion testimony improperly bolstered the complainant’s testimony.
The teacher’s opinion carried an aura of authority and expertise (together
with references to the school records). The verdict was based solely on the
complainant’s in- and out-of-court statements in a trial that turned on the
complainant’s credibility from beginning to end, versus the testimony of
Appellant. The complainant said it happened; Appellant said it did not. The
teacher’s opinion of the complainant’s good character for truthfulness went to
the heart of the case. Considering everything in the record, including the voir
dire and closing arguments and the theories of the case espoused by the State
and Appellant, I would further hold that the error had a substantial and injurious
3
effect on the jury’s verdict. See T EX. R. A PP. P. 42.2(b); Shutz v. State, 63
S.W.3d 442, 444 (Tex. Crim. App. 2001). Consequently, I would reverse the
conviction and remand for a new trial.
ANNE GARDNER
JUSTICE
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: April 17, 2008
4