Thomas v. State , 1982 Tex. App. LEXIS 3846 ( 1982 )

ROBERTSON, Justice.

Appellant was convicted of murder and sentenced to a confinement of 48 years. At trial, appellant admitted that he had killed the deceased, but contended that he acted in self-defense or in defense of third persons. The State cross-examined appellant regarding his post-arrest, pretrial silence and suggested by its questions that appellant’s testimony regarding his defense was recently fabricated. Appellant did not object to the State’s questions regarding his silence. Instead, appellant offered testimony that his reputation for truth and veracity was good. The State objected to appellant’s evidence and the trial court excluded it. We hold that the trial court erred by excluding the defensive evidence of appellant’s reputation for truth and veracity. Furthermore, we hold the trial court’s error was harmful to appellant and, therefore, the case must be reversed and remanded.

The briefs of both the State and appellant assume that the State’s cross-examination of appellant regarding his post-arrest, pretrial silence constituted an impeachment of appellant. “To impeach a witness means adducing proof that such witness is unworthy of belief or credit.” Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971). We agree with the assumption of the parties that the State’s questioning of appellant regarding his silence was for the purpose of showing that appellant was unworthy of belief or credit. By its questions, the State effectively charged that appellant had fabricated his testimony regarding his theory of defense. We hold that the State’s questions regarding appellant’s post-arrest, pretrial silence constituted impeachment. See Franklin v. State, 606 S.W.2d 818 (Tex.Cr.App.1978).

Appellant contends that since he had been impeached, he was entitled to present evidence of his good reputation for truth and veracity. We agree. In Rodriguez v. State, 165 Tex.Cr.R. 179, 305 S.W.2d 350 (1957), the court stated:

[WJhere an attack is made upon the veracity of a witness, such as by evidence that the witness has conspired with another to falsely accuse the defendant, or where it is attempted to be shown that the witness is testifying under corrupt motives, or is fabricating testimony, it is proper to permit testimony that the witness has a good reputation for truth and veracity. [Emphasis added.]

Accord, O’Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979).

In Niles v. State, 104 Tex.Cr.R. 447, 284 S.W. 568 (1926), the appellant was charged with murder. He defended on alleged insults offered by the deceased to his wife and upon self-defense. The appellant’s wife testified that a short time before the homicide she told the appellant of the deceased having attempted to make love to her, and having kissed her, and having choked and threatened her, and having had carnal knowledge of her against her consent. The record disclosed a rigid cross-examination of appellant’s wife concerning “matters of an impeaching nature.” Id. 284 S.W. at 571. The court held that under these circumstances it was reversible error for the trial court to exclude evidence that appellant’s wife’s general reputation for truth and veracity was good.

In the present case, since the State was attempting to show that appellant was fabricating testimony, appellant’s evidence of his good reputation for truth and veracity was admissible and the trial court erred in excluding it. Furthermore, we hold that since the trial court’s error effectively precluded appellant from presenting a credible defense, the error prejudiced appellant and the case must be reversed. Niles v. State, supra; Cf. Horne v. State, 607 S.W.2d 556 (Tex.Cr.App.1980). (The trial court committed reversible error in refusing the submission of the issue of self-defense to the jury because the defendant has a right to have his legal defense determined by jury rather than the trial court.)

Reversed and remanded.