TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00170-CR
Eugene Arthur Blaylock, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 44,530, HONORABLE JOE CARROLL, JUDGE PRESIDING
PER CURIAM
Appellant waived trial by jury and pleaded no contest to an indictment accusing him of indecency with a child. Act of May 29, 1987, 70th Leg., R.S., ch. 1028, § 1, 1987 Tex. Gen. Laws 3474 (Tex. Penal Code Ann. § 21.11, since amended). After hearing evidence, the court found appellant guilty and assessed punishment at imprisonment for three years.
Appellant first complains that the district court erred by admitting the reputation testimony of two character witnesses called by the State. The first of these witnesses was Temple police officer James Roper. Roper testified that he had known appellant since 1985 and answered affirmatively when asked if he was "capable of forming an opinion concerning whether or not [appellant] is a peaceful and law-abiding citizen." The prosecutor then asked the witness for appellant's reputation in the community for being peaceful and law-abiding. Appellant objected to this question, which was not answered, on the ground that the witness had not been shown to be familiar with appellant's reputation. The objection was overruled. The prosecutor then asked the witness, without further objection, for his opinion as to appellant's reputation for being peaceful and law-abiding. The witness testified that his opinion was bad.
The second witness was Charles Pierce, a Temple psychologist, who testified that he had known appellant since 1986. Pierce was asked by the prosecutor if, "based upon either conversations you have had with any other person or any discussions that you may have overheard concerning [appellant], are you capable of forming an opinion today concerning [appellant's] reputation in this community?" Appellant objected that the predicate for reputation testimony had not been laid. The objection was overruled and Pierce stated that he had an opinion of appellant's reputation. The prosecutor then asked without further objection if that reputation was good or bad, to which Pierce answered that it was "not a good reputation."
This point of error arises from the prosecutor's failure to appreciate the difference between proving character by reputation and proving character by opinion, and the resulting mishandling of the character witnesses. See Tex. R. Crim. Evid. 405(a) (proving character by reputation or opinion). Having established that the witnesses had a long acquaintance with appellant, the prosecutor properly could have asked each for his opinion of appellant's character. Instead, the prosecutor confusingly asked for the witnesses' opinions regarding appellant's reputation. In response, each witness testified, in effect, that his opinion of appellant's reputation was bad.
Appellant contends that the witnesses were not qualified to give reputation testimony. As we read the testimony, however, neither Roper nor Pierce expressly testified to appellant's reputation. Appellant did not object to the form or substance of the questions asking the witnesses for their opinions of appellant's reputation, and it is impossible to determine with confidence whether the witnesses' answers reflected their opinions of appellant's character or their knowledge of his reputation. Given this confusion, we think it likely that the testimony carried little weight with the trial court. Further, to the extent the court understood the witnesses to be testifying to appellant's reputation, the impact of the testimony was further diminished by effective cross-examination that demonstrated that the witnesses had little or no basis for giving reputation testimony. We are satisfied beyond a reasonable doubt that any error brought forward in this point of error did not contribute to the punishment assessed. Tex. R. App. P. 81(b)(2). Point of error one is overruled.
Appellant next complains that the district court erroneously considered evidence after sustaining an objection to its admission. This matter arose when the State called Michelle May as a witness. Appellant objected that May should not be permitted to testify because she had been present in the courtroom in violation of the witness rule. Tex. R. Crim. Evid. 613. The prosecutor was permitted to question May for the limited purpose of showing that the State had not learned that she possessed relevant information until after trial began. After an off-the-record conference with counsel, the court sustained appellant's objection and ruled that May would not be permitted to testify. The prosecutor then attempted to describe how May came to the attention of the State "[f]or purposes of the record." Appellant's objection to this was sustained. When the prosecutor persisted, the court cut him off by saying, "All right. I think that your point is made, Mr. Garza," and "I don't think we need to go on anymore with this."
Appellant argues that "[b]y acknowledging that the Prosecutor had made his point, the Court also acknowledged that it would consider the evidence that the State was attempting to introduce." The flaw in this argument is that May never testified to any matter relevant to this cause and the prosecutor never attempted to inform the court of the substance of May's proposed testimony. The court's remarks to the prosecutor merely reflected its understanding that the State had not deliberately sought to circumvent the witness rule. Because there is nothing in the record to indicate that the district court heard or considered any testimony from May that was prejudicial to appellant, point of error two is overruled.
In his third point of error, appellant contends the State denied him due process of law by failing to disclose exculpatory evidence. Brady v. Maryland, 373 U.S. 83 (1963). The evidence in question was the complainant's written statement to the police given two days after the offense. In the statement, the complainant indicates that appellant entered his bedroom between 10:00 and 11:00 p.m. on the night in question. Appellant urges that this is an exculpatory fact because all the other record evidence indicates that appellant did not arrive at the complainant's home until after midnight.
The record does not support appellant's claim that the State failed to disclose the complainant's statement. The statement was one of several witness statements attached to the presentence investigation report considered by the court at the punishment hearing and which is now contained in the transcript. Defense counsel did not complain at trial that they had been denied access to the report. To the contrary, their questions to the witnesses and arguments to the court displayed a familiarity with the contents of the presentence report. The alleged nondisclosure of the witness statement also was not raised in appellant's motion for new trial. In the absence of any showing that the alleged exculpatory information was not disclosed, no error is presented. Point of error three is overruled.
In his final point of error, appellant complains of the prosecutor's conduct during final arguments to the court. First, when defense counsel mentioned that appellant did not remember the details of the offense, the prosecutor objected that this argument was outside the record and noted that appellant did not testify. The court responded to the objection by reminding the prosecutor that there was ample evidence in the record to support defense counsel's argument. Second, the prosecutor, during his own argument, referred to defense testimony that appellant had sought psychiatric help as "a bunch of baloney." Appellant asserts that the cumulative effect of these and the errors previously asserted denied him a fair trial.
Appellant did not object to the prosecutor's reference to his failure to testify. Although appellant did object to the prosecutor's "baloney" remark, the objection was general and did not preserve his contention on appeal that the argument was misleading. We again note that this was a bench trial. The record does not indicate that the court's punishment decision was influenced by the prosecutor's behavior during final arguments. We find that the prosecutor's remarks, considered alone or in conjunction with the other matters discussed in the other points of error, do not constitute reversible error in the context of this cause. Point of error four is overruled.
The judgment of conviction is affirmed.
Before Justices Powers, Aboussie and Kidd
Affirmed
Filed: December 20, 1995
Do Not Publish
ex. R. Crim. Evid. 613. The prosecutor was permitted to question May for the limited purpose of showing that the State had not learned that she possessed relevant information until after trial began. After an off-the-record conference with counsel, the court sustained appellant's objection and ruled that May would not be permitted to testify. The prosecutor then attempted to describe how May came to the attention of the State "[f]or purposes of the record." Appellant's objection to this was sustained. When the prosecutor persisted, the court cut him off by saying, "All right. I think that your point is made, Mr. Garza," and "I don't think we need to go on anymore with this."
Appellant argues that "[b]y acknowledging that the Prosecutor had made his point, the Court also acknowledged that it would consider the evidence that the State was attempting to introduce." The flaw in this argument is that May never testified to any matter relevant to this cause and the prosecutor never attempted to inform the court of the substance of May's proposed testimony. The court's remarks to the prosecutor merely reflected its understanding that the State had not deliberately sought to circumvent the witness rule. Because there is nothing in the record to indicate that the district court heard or considered any testimony from May that was prejudicial to appellant, point of error two is overruled.
In his third point of error, appellant contends the State denied him due process of law by failing to disclose exculpatory evidence. Brady v. Maryland, 373 U.S. 83 (1963). The evidence in question was the complainant's written statement to the police given two days after the offense. In the statement, the complainant indicates that appellant entered his bedroom between 10:00 and 11:00 p.m. on the night in question. Appellant urges that this is an exculpatory fact because all the other record evidence indicates that appellant did not arrive at the complainant's home until after midnight.
The record does not support appellant's claim that the State failed to disclose the complainant's statement. The statement was one of several witness statements attached to the presentence investigation report considered by the court at the punishment hearing and which is now contained in the transcript. Defense counsel did not complain at trial that they had been denied access to the report. To the contrary, their questions to the witnesses and arguments to the court displayed a familiarity with the contents of the presentence report. The alleged nondisclosure of the witness statement also was not raised in appellant's motion for new trial. In the absence of any showing that the alleged exculpatory information was not disclosed, no error is presented. Point of error three is overruled.
In his final point of error, appellant complains of the prosecutor's conduct during final arguments to the court. First, when defense counsel mentioned that appellant did not remember the details of the offense, the prosecutor objected that this argument was outside the record and noted that appellant did not testify. The court responded to the objection by reminding the prosecutor that there was ample evidence in the record to support defense counsel's argument. Second, the prosecutor, during his own argument, referred to defense testimony that appellant had sought psychiatric help as "a bunch of baloney." Appellant asserts that the cumulative effect of these and the errors previously asserted denied him a fair trial.
Appellant did not object to the prose