PD-0829-15
PD-0829-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/2/2015 1:33:48 PM
Accepted 7/2/2015 4:32:40 PM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS CLERK
FOR THE STATE OF TEXAS
LESTER FANE WEBB
APPELLANT
V. COA NO. 02-14-00368-CR
TRIAL COURT NO. 1304635
THE STATE OF TEXAS,
APPELLEE
APPEALED FROM CAUSE NUMBER 1304635D, IN CRIMINAL
DISTRICT COURT NUMBER ONE OF TARRANT COUNTY, TEXAS;
THE HONORABLE ELIZABETH BEACH, JUDGE PRESIDING.
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
WILLIAM H. "BILL" RAY
TEXAS BAR CARD NO. 16608700
ATTORNEY FOR APPELLANT
July 2, 2015
LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C.
512 MAIN STREET, STE. 308
FORT WORTH, TEXAS 76102
(817) 698-9090
(817) 698-9092, FAX
bill@billraylawyer.com
***Oral Argument is NOT Requested***
PETITION FOR DISCRETIONARY REVIEW, PAGE 1
IDENTITY OF PARTIES AND COUNSEL
LESTER FANE WEBB APPELLANT
c\o Texas Dept. of Criminal
Justice, Institutional
Division, Huntsville, Texas
HONORABLE TERRI B MOORE ATTORNEY FOR APPELLANT
300 Burnett Street, Suite 162 AT TRIAL
Fort Worth, Texas 76102
HONORABLE WILLIAM H. RAY ATTORNEY FOR APPELLANT
512 Main Street, Ste. 308 ON APPEAL
Ft. Worth, Texas 76102
HONORABLE SHAREN WILSON CRIMINAL DISTRICT ATTORNEY
401 West Belknap TARRANT COUNTY, TEXAS
Fort Worth, Texas 76102
HONORABLE STEVEN GEBHARDT ASSISTANT DISTRICT
401 West Belknap ATTORNEY, TARRANT
Fort Worth, Texas 76102 COUNTY, TEXAS
HONORABLE MICHELE HARTMAN ASSISTANT DISTRICT
401 West Belknap ATTORNEY, TARRANT
Fort Worth, Texas 76102 COUNTY, TEXAS
HONORABLE ELIZABETH BEACH JUDGE, CRIMINAL DISTRICT
401 West Belknap COURT NUMBER ONE
Fort Worth, Texas 76102 TARRANT COUNTY, TEXAS
HONORABLE LISA McMINN STATE PROSECUTING
P.O. Box 13046 ATTORNEY
Austin, Texas 78711
PETITION FOR DISCRETIONARY REVIEW, PAGE 2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
INDEX OF AUTHORITIES 4
STATEMENT CONCERNING ORAL ARGUMENT 5
STATEMENT OF THE CASE 5
STATEMENT OF THE PROCEDURAL HISTORY 6
GROUND FOR REVIEW
GROUND FOR REVIEW NUMBER ONE 7
THE TRIAL COURT ABUSED ITS DISCRETION BY
REFUSING TO ALLOW APPELLANT TO PRESENT
EVIDENCE OF GOOD CHARACTER, BASED ON
THE STATE’S OBJECTION PURSUANT TO RULE 405,
TEXAS RULES OF EVIDENCE.
PRAYER 10
CERTIFICATE OF SERVICE 10
CERTIFICATE OF COMPLIANCE 11
The Opinion of the Court of Appeals is included with this Petition.
PETITION FOR DISCRETIONARY REVIEW, PAGE 3
INDEX OF AUTHORITIES
Cases Page
Love v. State 861 S.W.3d 899, 901 (Tex.Crim.App. 1993) 9
Melgar v. State, 236 S.W.3d 302, 306 (Tex.App.-Houston [1st Dist.] 7
2007, pet. ref'd)
Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) 8
Wheeler v. State, 67 S.W.3d 879, 882 n. 2 (Tex.Crim.App.2002) 7
Statutes
Rule 404(a), Texas Rules of Evidence 7
Rule 405, Texas Rules of Evidence 7
PETITION FOR DISCRETIONARY REVIEW, PAGE 4
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not necessary in this case.
STATEMENT OF THE CASE
This is an appeal from a felony conviction and sentence for the offense
of Aggravated Sexual Assault of a Child. Appellant was charged by indictment in
cause number 1304635 with the offense of Continuous Sexual Abuse. CR, Page 7.
The jury found Appellant guilty of the lesser included offense of Aggravated
Sexual Assault of a Child. CR, Page 210; RR-5, Pages 15-17. Appellant elected
for the jury to assess punishment . The jury assessed punishment at 7 years in the
Institutional Division of the Texas Department of Criminal Justice. CR, Page 210;
RR-5, Pages 29-31.
On direct appeal, the Court of Appeals for the Second Appellate District in
Fort Worth affirmed Appellant’s conviction. The opinion was not designated for
publication.
PETITION FOR DISCRETIONARY REVIEW, PAGE 5
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
Appellant was sentenced on August 29, 2014. Notice of Appeal was timely
filed. Appellant timely filed his brief in the Court of Appeals on January 13, 2015.
The State timely filed its brief on March 13, 2015.
The case was submitted to the Court of Appeals, without oral argument, on
May 22, 2015. The Court of Appeals affirmed Appellant’s conviction on June 11,
2015. That opinion is not designated for publication.
This Petition for Discretionary Review is timely filed.
PETITION FOR DISCRETIONARY REVIEW, PAGE 6
GROUND FOR REVIEW NUMBER ONE
THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING
TO ALLOW APPELLANT TO PRESENT EVIDENCE OF GOOD
CHARACTER, BASED ON THE STATE’S OBJECTION
PURSUANT TO RULE 405, TEXAS RULES OF EVIDENCE
Generally, character evidence is not admissible to show that a person acted
in conformity with a character trait on a particular occasion. Tex.R. Evid. 404(a);
Melgar v. State, 236 S.W.3d 302, 306 (Tex.App.-Houston [1st Dist.] 2007, pet.
ref'd). But an accused in a criminal case is permitted to introduce evidence of a
specific good-character trait to show that it is improbable that he committed the
charged offense when that character trait is relevant to the offense. Tex.R. Evid.
404(a)(1)(A); Melgar, 236 S.W.3d at 306-07. A pertinent trait is " one that relates
to a trait involved in the offense charged or a defense raised." Melgar, 236 S.W.3d
at 307. Thus, in a prosecution for a crime of violence, the defendant's character for
being peaceful is pertinent because evidence of peaceful character makes it less
likely that the defendant committed the crime. Id. In a murder case, the accused's
reputation for peacefulness, or nonaggressive behavior, is the appropriate inquiry.
Wheeler v. State, 67 S.W.3d 879, 882 n. 2 (Tex.Crim.App.2002); Melgar, 236
S.W.3d at 307. This type of evidence can be elicited via opinion or reputation
testimony, or both. Tex.R. Evid. 405(a); Melgar, 236 S.W.3d at 308.
PETITION FOR DISCRETIONARY REVIEW, PAGE 7
Rule 405 of the Texas Rules of Evidence states:
Methods of Proving Character
(a) Reputation or Opinion. In all cases in which evidence of a person's
character or character trait is admissible, proof may be made by testimony as
to reputation or by testimony in the form of an opinion. In a criminal case, to
be qualified to testify at the guilt stage of trial concerning the character or
character trait of an accused, a witness must have been familiar with the
reputation, or with the underlying facts or information upon which the
opinion is based, prior to the day of the offense. In all cases where testimony
is admitted under this rule, on cross-examination inquiry is allowable into
relevant specific instances of conduct.
(b) Specific Instances of Conduct. In cases in which a person's character
or character trait is an essential element of a charge, claim or defense, proof
may also be made of specific instances of that person's conduct.
A trial court's decision to admit or exclude evidence is reviewed under an
abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim.
App. 2002). An appellate court may not reverse a trial court's ruling unless that
ruling falls outside the zone of reasonable disagreement. Id.
In the present case, Appellant sought to prove that he had a good character
PETITION FOR DISCRETIONARY REVIEW, PAGE 8
through the testimony of Martha Walker, who had known Appellant in excess of
two decades. RR-4, 193-196. The State’s objection “Rule 405" was erroneously
sustained. RR-4, Page 196. Walker should have been allowed to testify that in her
opinion, Appellant did not have the type character to commit the offense for which
he was charged. It was therefore relevant to the subject of the trial.
Appellant submits that the trial court abused its discretion in not allowing
this testimony. Martha Walker was the only witness that Appellant attempted to
ask about his character. Appellant submits that to not allow this question was
improper and an abuse of discretion.
The Court of Appeals held that Appellant’s trial counsel did not preserve
error, but did “by skillful questioning” manage to present the witnesses opinion.
Opinion, at pages 1-3. As the Court of Appeals noted, error may be made by an
offer of proof. Opinion, at page 2. Love v. State 861 S.W.3d 899, 901
(Tex.Crim.App. 1993). Appellant submits that by asking the questions referred to
above, Appellant did make an offer of proof. For this reason, Appellant submits
that he did preserve error and the Court of Appeals should not have dismissed his
complaint for that reason.
PETITION FOR DISCRETIONARY REVIEW, PAGE 9
PRAYER FOR RELIEF
Appellant Prays that this Honorable Court reverse his conviction and remand
the case for a new trial.
RESPECTFULLY SUBMITTED,
/S/ WILLIAM H. “BILL” RAY
WILLIAM H. "BILL" RAY
TEXAS BAR CARD NO. 16608700
ATTORNEY FOR APPELLANT
LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C.
512 MAIN STREET, STE. 308
FORT WORTH, TEXAS 76102
(817) 698-9090
(817) 698-9092, FAX
CERTIFICATE OF SERVICE
I certify that a true copy of Appellant's Brief was delivered via the electronic
filing system to the office of Joe Shannon, Jr., Criminal District Attorney, Criminal
District Attorney of Tarrant County, Texas, 401 W. Belknap St. Ft. Worth, Tx.
76196-0201 on the date of this document’s filing.
I certify that a true copy of Appellant's Petition for Discretionary Review
was placed in the United States Mail addressed to Appellant, in the Texas
Department of Corrections, on the date of this document’s filing.
I certify that a true copy of Appellant's Petition for Discretionary Review
was delivered via the electronic filing system to the State’s Prosecuting Attorney,
at P.O. Box 13046, on the date of this document’s filing.
/S/ WILLIAM H. “BILL” RAY
WILLIAM H. “BILL” RAY
PETITION FOR DISCRETIONARY REVIEW, PAGE 10
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4 i3, of the Texas Rules of Appellate Procedure, I certify
that the Brief on Direct Appeal filed in this case, has 1527 words contained
therein. This count was obtained via the WordPerfect computer program.
/S/ WILLIAM H. "BILL" RAY
WILLIAM H. “BILL” RAY
PETITION FOR DISCRETIONARY REVIEW, PAGE 11
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00368-CR
Lester Fane Webb § From Criminal District Court No. 1
§ of Tarrant County (1304635D)
v. § June 11, 2015
§ Opinion by Justice Dauphinot
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By _/s/ Lee Ann Dauphinot______________
Justice Lee Ann Dauphinot
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00368-CR
LESTER FANE WEBB APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1304635D
----------
MEMORANDUM OPINION 1
----------
A jury convicted Appellant Lester Fane Webb of aggravated sexual assault
of a child under the age of fourteen years and assessed his punishment at seven
years’ confinement. The trial court sentenced him accordingly. In a single point,
Appellant contends that the trial court reversibly erred by refusing to allow him to
present evidence concerning his good character.
1
See Tex. R. App. P. 47.4.
As the State points out, to preserve error in a trial court’s exclusion of
evidence, the substance of the excluded evidence must be shown by an offer of
proof unless it is apparent from the context of the questions asked. 2 Error may
be preserved by an offer of proof, either in question-and-answer form or in the
form of a concise statement by counsel. 3 Counsel’s concise statement must
include a summary of the proposed testimony. 4 Here, trial counsel made no
offer of proof. We note, however, that by skillful questioning, able trial counsel
nevertheless managed to present to the jury the witness’s opinion:
Q. Are you familiar for—with his reputation in the community for
being a peaceful and law-abiding citizen?
A. Yes, we are.
Q. Okay. And what is that reputation?
A. It’s a very upstanding reputation, caring [and] law abiding.
Q. Uh-huh. And his reputation for honesty?
A. Very good.
Q. Okay. Would you trust him around your grandchildren?
A. I sure would.
Q. No hesitation?
2
Tex. R. Evid. 103(a)(2); Bundy v. State, 280 S.W.3d 425, 428 (Tex.
App.—Fort Worth 2009, pet. ref’d).
3
Tex. R. Evid. 103(a)(2), (c); Love v. State, 861 S.W.2d 899, 901 (Tex.
Crim. App. 1993).
4
Love, 861 S.W.2d at 901.
2
A. No hesitation.
Q. You understand what he is charged with here today?
A. Yes, [I] do.
Q. And you understand it involves R[.]?
A. Right.
Q. And the allegation is sexual abuse?
A. Right.
Q. And I can sit here and go into all the details about what the
allegation involves. Would that change your opinion of Mr.
Webb?
A. No.
Because Appellant did not preserve error, we overrule his sole point and
affirm the trial court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 11, 2015
3
Webb, Lester Fane
Combined Opinion