Watson v. State , 1980 Tex. Crim. App. LEXIS 1400 ( 1980 )

OPINION

ROBERTS, Judge.

I.

After finding the appellant guilty of aggravated robbery, the jury heard evidence on the issue of punishment.¹ The evidence included the testimony of two witnesses that the appellant’s reputation in the community for being peaceable and law-abiding was bad. The appellant argues that the trial court should have sustained his objections to the testimony of these witnesses. We agree.

“When the character of a party or of a witness is to be evidenced by reputation . .., the reputation must itself be proved by a witness qualified by an opportunity to obtain knowledge of it.

“The first step here consists in an application of the general principle . .. that a witness must expressly appear to have had the means of knowledge, before his testimony can proceed.” J. Wigmore, 3 Evidence, Section 691 (J. Chadbourn rev. 1970) (emphasis in original).

“The witness must be able to demonstrate that he is familiar with the defendant’s reputation, and competent to speak for the community.” J. Weinstein, 2 Evidence, paragraph 405[02] (1979).

This principle, in the form of a requirement that the witness have discussed the defendant’s reputation, has been applied frequently by this Court. “Without the requirement of discussion with other members of an accused’s community, a witness’ testimony concerning the accused’s reputation for being a peaceful and law-abiding citizen would be nothing more than an inadmissible opinion.” Mitchell v. State, 524 S.W.2d 510, 513 (Tex.Cr.App. 1975). The State’s first reputation witness failed to meet this first requirement.

Mary Lynn Taylor testified that she once had lived for a few months in Houston. When the State asked her about the appellant’s reputation, the appellant objected that no predicate had been laid; the objection was sustained. The State’s attempt to lay the predicate was as follows:

“Q (By Mr. Cornelius) Just a minute. Ms. Taylor, you say you know this defendant?

“A Yes, sir.

“Q You have met him?

“A (Witness nods head.)

“Q Have you talked to people who know this defendant?

“A No, sir.

“Q Well, let me rephrase it.

* * * Have you talked to any police officers with respect to this defendant?

“A Yes, sir.

* * * * * *

“Q (By Mr. Cornelius) Have you read any documents with respect to this defendant?

“A Yes, sir.

“Q Do you know this defendant’s reputation for peacefulness and law abiding in the community in which he lives and with those with whom he associates?

“MR. McCULLOUGH: Object to the question, Your Honor. The predicate is not proper; specifically with regard to the matter of documents; does not lay the predicate for the reputation question.

“THE COURT: That’s overruled.

“Q (By Mr. Cornelius) Do you know the reputation?

“A Yes, sir.

“Q Is that reputation good or is it bad?

“A Bad.

“MR. CORNELIUS: We pass the witness.” ²

There was no evidence that the witness had discussed the appellant’s reputation with anyone who knew him or with any member of his community. In fact, she denied talking to anyone who knew him. “Talk[ing] to any police officers with respect to this defendant” does not convey that the officers knew anything about the appellant. “Read[ing] any documents with respect to this defendant” is in no way equivalent to discussing his reputation in his community. The appellant’s objection to the predicate should have been sustained.

A second requirement of reputation testimony is that bad reputation must not be based solely on a discussion of the alleged events for which the defendant is then being tried. Stephens v. State, 128 Tex.Cr.R. 311, 80 S.W.2d 980 (1935). The operation of this rule is illustrated by the opinion on which the State relies: Martin v. State, 449 S.W.2d 257, 260 (Tex.Cr.App. 1970). There we held that it was proper to admit the reputation testimony of a police officer when it was based on general discussions with other officers and not solely on a discussion of the pending case. In this case, the predicate laid for the State’s second reputation witness did not comply with this rule.

F. N. McMillon, “a Houston policeman,” testified that he had worked on the investigation of this case. He was asked about the appellant’s reputation. Again the appellant successfully objected to the lack of predicate, forcing the State to make the following effort:

“Q (By Mr. Cornelius) Have you had information available to you to read and talk to other people who have worked on this case and associated with this defendant, John Michael Watson?

“MR. McCULLOUGH: Objection, Your Honor. The question directly goes to matters related to this case and that is not a proper predicate for the reputation question.

“THE COURT: That’s overruled.

“A Yes, I have.”

As well as we can understand this confusing question, it inquired of two things: First, was there information about the appellant available for the witness to read? Even if we assume that the answer implied that the witness actually had read the available information, this is not equivalent to the required discussion of the appellant’s reputation; see the holding, above, on the “documents” that Taylor had read.

The second inquiry was whether the witness had talked “to other people who have worked on this case and' associated with” the appellant. The appellant’s counsel was correct in characterizing this question as “directly go[ing] to matters related to this case,” which is not a sufficient predicate. The trial court should have sustained the objection or at least required the State to clarify the matter sufficiently to establish whether the proper predicate existed.

The common law rule of evidence that permits proof of character by reputation, but not by the witness’s opinion, has been criticized severely.³ The modern trend is to enact statutes which permit the witness to give his own opinion.⁴ It has been said that courts that adhere to the common law rule, as this Court does,⁵ do so because reputation evidence is largely opinion evidence in disguise.⁶ If this is true, the evidence must wear a better disguise than the ones produced in this case.⁷ For the repeated admission of reputation evidence without a proper predicate, the judgment in this case will be reversed.

II.

The appellant challenges the sufficiency of the evidence. Unlike the grounds that we have sustained above, this ground would bar a retrial if it were sustained. See Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Therefore we must proceed to consider the sufficiency of the evidence. See United States v. Meneses-Davila, 580 F.2d 888, 896 (5th Cir. 1978).

It appears that the appellant was fleeing from the scene of a fire just after midnight. He knocked on the door of a house and told the teenaged boy who answered the door that he was a sheriff’s deputy. When the boy went to get his parents, the appellant entered the house. He was carrying a shotgun, which he pointed at the boy’s father (the complainant), and threatened to “blow [the father] all over that wall.” The appellant gathered the family in a bedroom and told them to stay there while he searched the house for the suspect he claimed to be chasing. During this search he apparently took the keys to the complainant’s automobile. He instructed the family to stay in the house while he went outside to search for the fictitious suspect. The appellant went outside, looked around the house, and was last seen crouching near the complainant’s automobile. The complainant heard the sound of his car being started and driven away. Soon a police officer spotted the appellant driving the complainant’s automobile, and he made an arrest.

The appellant argues that the evidence may prove aggravated assault and theft (not to mention burglary), but that it fails to prove that he threatened the complainant “while in the course of committing theft of one automobile,” as alleged in the indictment. See V.T.C.A., Penal Code, Section 29.01(a).⁸ His argument is that the threat ended before the theft began. Neither the facts nor the law supports the argument.

The theft of the automobile fairly can be said to have begun when the appellant took the keys to the automobile. Cf. Deem v. State, 167 Tex.Cr.R. 110, 318 S.W.2d 649 (1958) (only one design, impulse, and purpose in taking suit, notwithstanding fact that pants and coat were taken on separate days). At that time, the complainant was confined to his bedroom by the appellant’s threats. At the time the theft was completed, the complainant was confined in his house by the appellant’s threats. Cf., e. g., Glasper v. State, 486 S.W.2d 350 (Tex.Cr.App. 1972) (fact that victim fled before property was taken is inconsequential; but for the assault, there would have been no relinquishment).

Under the former penal code, the requirement was that the actual or threatened violence be. antecedent to the theft. Crawford v. State, 509 S.W.2d 582 (Tex.Cr.App. 1974). The threat in this case certainly was antecedent to the theft. The intent of the new Penal Code⁹ was to retain the proscription of such antecedent violence and to add the proscription of violence accompanying an unsuccessful attempted theft and violence accompanying escape immediately after completed or attempted theft. State Bar Committee on Revision on the Penal Code, Texas Penal Code: A Proposed Revision 201 (Final Draft 1970). See Lightner v. State, 535 S.W.2d 176 (Tex.Cr.App. 1976). The antecedent threats made by the appellant are proscribed by the present statute as they would have been under the former statute. Cf. Glasper v. State, supra. The evidence was sufficient to prove all the elements of the offense.

The judgment is reversed and the cause is remanded.

Before the court en banc.

1 . The evidence included proof of prior convictions for burglary and robbery. The jury assessed punishment of confinement for 40 years.

2 . On cross-examination Taylor testified, “I haven’t talked to anybody about him. * * * I never seen [sic] him before.” She also volunteered that she knew “[o]nly that he tried to kill me.” The trial court instructed the jury to disregard the answer; it refused to declare a mistrial.

3 . See, e. g., C. McCormick & R. Ray, 1 Texas Law of Evidence, sec. 652 (2d ed. R. Ray & W. Young 1956); J. Wigmore, 7 Evidence, sec. 1986 (3d ed. 1940); Slough, “Relevancy Unraveled,” 5 Kan.L.Rev. 404, 418 (1957).

4 . See F.R.Evid. 405; Cal.Evid.Code, sec. 1102 (West 1966); Uniform Rule of Evidence 405 (1974); Model Code of Evidence rule 306 (1942).

5 . See, e. g., Gholson v. State, 542 S.W.2d 395, 402 (Tex.Cr.App. 1976).

6 . Advisory Committee Note to F.R.Evid. 405. See J. Weinstein, 2 Evidence, para. 405[03] (1979).

7 . See also Mitchell v. State, 524 S.W.2d 510, 515 (Tex.Cr.App. 1975) (Onion, P. J., concurring) (knowingly calling unqualified reputation witnesses in bad faith).

8 . “A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control or the property, he:

(1) intentionally, knowingly, or recklessly causes bodily injury to another; or

(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”

9 . “ ‘In the course of committing theft’ means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” V.T. C.A., Penal Code, Sec. 29.01(1).