Pemberton v. State , 1980 Tex. Crim. App. LEXIS 1294 ( 1980 )

OPINION

CLINTON, Judge.

This is an appeal from a plea of guilty to the offense of aggravated robbery where the jury assessed punishment at confinement in the Texas Department of Corrections for five years notwithstanding appellant’s sworn motion for probation.

At the outset, appellant advances the contention that the trial court erred in permitting the State to ask an improper “have you heard” question while cross-examining one of appellant’s reputation witnesses at the punishment stage of the proceedings. Specifically, appellant contends that the question constituted an improper assertion of fact. We agree and accordingly reverse the judgment below.

The improper questions of which appellant makes complaint were asked of one Burl Loving after he had testified, inter alia, that appellant had a good reputation in his community as a peaceable and law abiding citizen. On cross-examination, the following colloquies ensued:

Q [By the prosecutor]: Now, I’m going to ask you a question — I guess you and I both know the answer to this — have you heard that Donald Pemberton in fact is absent without leave from the Army?¹ [Appellant’s counsel]: Your Honor, can I have a running objection to this question that I made earlier?

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THE COURT: I will grant you a running objection to that question.

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Q: All right. Mr. Loving, have you heard that?

A: I did not hear that until I heard it from you yesterday, sir.

Q: That’s what I’m saying, you have heard it and I am the one who told you?

A: From you, uh-huh.

Q: So that makes it true, doesn’t it?

A: (No answer)

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Q: If it were shown to you that in fact he was absent without leave from the Army, would that cause you to change your opinion about him? [Appellant’s counsel]: Your Honor—

A: None whatsoever, sir—

[Appellant’s counsel]: —I object.

A: —because he was a good worker. Okay?

Appellant’s objection was overruled as was his request for a curative instruction to disregard and his motion for a mistrial.

Moffett v. State, 555 S.W.2d 437 (Tex.Cr. App.1977) reiterated the holding that:

“. . . [a]s part of its cross-examination, the State is permitted to ask the character witness if he has heard of a specific act of misconduct. However, the State may not ask whether the witness had personal knowledge of the act, nor may the question be framed so as to imply that the act has actually been committed.”

555 S.W.2d at 439, quoting Brown v. State, 477 S.W.2d 617, 619 (Tex.Cr.App.1972).

It is clear that the complained of questions fall squarely within the prohibition explained in Moffett, supra, as they were undeniably calculated to assert the matter in issue as fact. They are practically identical to the single question found offensive in Sisson v. State, 561 S.W.2d 197,199 (Tex.Cr. App.1978), wherein this Court held that it was error to allow the State to ask a reputation witness:

“Have you heard that on August the 7th, 1976, this Defendant with Randy Walter, Kay Miller and Donna Rana did in fact, smoke marihuana together, have your heard that?”

There, as here, the question posed by the prosecutor had the effect of negating the unassertive “have you heard,” and replacing it with words asserting the matter as fact. It was, therefore, error to allow the prosecutor to ask the questions referred to above. Moffett and Sisson, supra; see and compare Carey v. State, 537 S.W.2d 757 (Tex.Cr.App. 1976) (objection sustained and lengthy instruction to the jury to disregard given). The State, however, vigorously contends that appellant waived any error herein under the doctrine of curative admissibility. Succinctly stated, this doctrine holds that admission of improper evidence cannot be urged as grounds for reversal where the accused gives testimony on direct examination that establishes the same facts to which he objected. See, e. g., Ehrman v. State, 580 S.W.2d 581 (Tex.Cr.App.1979). It is often added that a corollary to this doctrine is that the harmful effect of improperly admitted evidence is not cured by the fact that the accused sought to meet, destroy, or explain it by the introduction of rebutting evidence. Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973).

The State is correct in its contention that appellant testified that he had in fact been absent without leave from the Army and had fully intended to “straighten out this Army problem.” Though it might be said that his “explanation” for having been AWOL was an attempt to “meet, destroy, or explain” the erroneously admitted “have you heard” evidence and that he testified only to overcome the impact of the prosecutor’s improper questions, cf. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), this issue can be decided on other independent and adequate grounds.

One exception to the principles previously discussed is that no waiver will be found where a defendant objects to evidence or testimony not tied directly or indirectly to the elements of the case and then in testifying himself admits those facts to be true. Thomas v. State, 572 S.W.2d 507, 513 (Tex. Cr.App.1978) (on rehearing). This exception is illustrated by the fact situation in Alvarez v. State, 511 S.W.2d 493 (Tex.Cr. App.1973) in which a portion of a confession stating that “I [appellant] always carry a pistol with me because I shot and killed a man in Lubbock not too long ago and I am afraid of his people,” was properly objected to as evidence of an extraneous offense. Because this statement involved an extraneous offense which was not evidence tied to the elements of the case but relevant only to show bad character on the part of the defendant, the Court held that the objection proffered was not waived when the defendant took the stand and, attempting to explain the incident, admitted on direct examination that the statement was true.

It is apparent that the reasoning of Alvarez, supra, is applicable to the instant case. The testimony which appellant offered on direct examination regarding his status as AWOL was not tied directly or indirectly to the elements of the case — indeed he had pled guilty before the jury and the State had rested its case — but was instead in the nature of reputation or character evidence, a purely collateral matter. We therefore hold that the error pointed out was not rendered harmless by appellant’s subsequent testimony on direct examination. Thomas v. State, supra; Alvarez v. State, supra.

The judgment is reversed and the cause remanded.

Before the Court en banc.

1 . We also note the doubtful propriety of the subject matter of the questions, pertaining as they do to an alleged offense “peculiar to military law,” Gaines v. State, 481 S.W.2d 835, 837 (Tex.Cr.App.1972), and that otherwise unobjectionable “have you heard” questions, including one concerning being AWOL, were found in Pace v. State, 398 S.W.2d 123, 124 (Tex.Cr. App., on motion for rehearing, 1965) to be “highly prejudicial and tended to deprive appellant of the fair trial that he was entitled to under the Constitution and laws of this State and of the United States.” (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)