Dixon v. State

*264 OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

BAIRD, J.

delivered the opinion of the Court, joined by

OVERSTREET, MEYERS, MANSFIELD, PRICE, and HOLLAND, JJ.

Appellant was convicted of incest, indecency with a child, and aggravated sexual assault and sentenced to 25 years on each of the first two offenses and 45 years on the latter. Tex. Penal Code Ann. §§ 25.02, 21.11, 22.021. The Court of Appeals affirmed. Dixon v. State, 923 S.W.2d 161 (Tex.App.—Fort Worth 1996){Dixon I). This Court vacated that judgment and remanded the case to the Court of Appeals. Dixon v. State, 928 S.W.2d 564 (Tex.Cr.App.1996)(Dixon II). On remand, the Court of Appeals again affirmed. Dixon v. State, 955 S.W.2d 898 (Tex.App.—Fort Worth 1997)(Dixon III). We granted review of that decision to determine if the Court of Appeals erred in holding that a defense witness could be properly impeached by evidence of a pending felony, and whether that error, if any, was preserved for review.1

I.

A.

During his case-in chief, appellant called Elmer Pelfrey as a witness. At the time of his testimony, Pelfrey was under indictment for two felonies pending in the same court as the instant case. Before Pelfrey testified, his attorney, Bradford Shaw, presented the following motion:

My name is Bradford Shaw. I’m an attorney for Elmer Pelfrey. He has been charged with two felony indictments in this particular court, and I would motion the Court, at this time, to enter an order prohibiting the State’s attorneys from asking him any questions concerning his guilt in these two offenses that are currently pending, based on his Fifth Amendment rights and under Article I, Section 10 of the Texas Constitution.
That would also include asking whether or not he is charged with these offenses. As you are well aware, he is presumed to be innocent, and that the rules of evidence provide that a person may be — testimony may be impeached by the admission or the asking of a felony conviction. And in this instance, he has not been convicted. These cases are pending. We would ask the Court enter an order in accordance with my request.

The trial judge denied Pelfrey’s request based upon “bias and motive.” When the State attempted to question Pelfrey regarding his two pending charges, appellant objected and the trial judge stated, “[f]or the reasons stated previously, I will overrule the objection.”

B.

The Court of Appeals originally held appellant had failed to properly preserve error by his general objection.

Based on these facts, we find that Dixon waived his complaint about the admission of Pelfrey’s pending charges. First, to the extent Dixon is relying on the objections of another attorney to preserve his present complaint, his reliance is misplaced. See Martinez v. State, 833 S.W.2d 188, 191 (Tex.App.—Dallas 1992, pet. ref d) (a defendant who has not voiced his own personal objection or adopted that of his codefendant is foreclosed from relying on the objection of his codefendant to preserve error). There is no indication in the record that Dixon adopted or intended to *265adopt the objections urged by Pelfrey’s attorney in the hearing held immediately before Pelfrey’s testimony. Therefore, Dixon cannot use an objection that he did not advance at trial to preserve his complaint for appellate review.

Dixon I, 923 S.W.2d at 164-165.

On discretionary review, we considered the preservation issue. Dixon II, 928 S.W.2d at 564. In a unanimous decision, we held:

In his petition for discretionary review, Appellant submits that the Court of Appeals failed to recognize that under this Court’s opinions in Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977) and Lankston v. State, 827 S.W.2d 907 (Tex.Cr.App.1992), a general objection will preserve error if its grounds are apparent to the trial judge. He argues that because the trial court overruled the objection and ruled the impeachment proper “for the reasons stated previously,” it understood the grounds for Appellant’s objection to be the same as those previously voiced by Pelfrey’s counsel.
We agree. Since the trial court explicitly overruled Appellant’s objection for the reasons stated previously, i.e., the reason given for overruling Pelfrey’s objection, the judge was treating Appellant’s objection as an adoption of Pel-frey’s. Therefore, the Court of Appeals erred by holding that error was not preserved because counsel’s objection was too general to apprise the trial court of its grounds.

Id., 928 S.W.2d at 564-565. The judgment of the Court of Appeals was vacated and the cause remanded to that court for disposition consistent with our opinion. Id., 928 S.W.2d at 565.

On remand, (Dixon III), the Court of Appeals again determined appellant had failed to preserve error. The remand decision was based on the ruling of the trial court when appellant’s objection was made. The Court held:

Although Dixon argues on appeal that the evidence is inadmissible under Rule 612(b), neither Dixon’s nor Pelfrey’s counsel objected on that ground either during the hearing or during the State’s cross-examination of Pelfrey. Even after the trial court informed defense counsel that it would admit the evidence to show bias or motive, no objection was made to the court’s ruling on the basis of Rule 612(b). When the evidence was admitted, Dixon’s counsel made only a general objection based on Rule 608(b) grounds.

Id., 955 S.W.2d at 900.

We begin our review by determining whether appellant preserved error, if any.

II.

To preserve error for appellate review, the complaining party must make a timely, specific objection. Armstrong v. State, 718 S.W.2d 686, 699 (Tex.Cr.App.1985). The objection must be made at the earliest possible opportunity. Marini v. State, 593 S.W.2d 709 (Tex.Cr.App.1980). The complaining party must obtain an adverse ruling from the trial court. DeRusse v. State, 579 S.W.2d 224 (Tex.Cr.App.1979). Finally, the point of error on appeal must correspond to the objection made at trial. Thomas v. State, 723 S.W.2d 696 (Tex.Cr.App.1986).

In Dixon II, we determined appellant’s objection to the State’s cross-examination of Pelfrey regarding his pending charges adopted the objection lodged by Pelfrey’s attorney. Dixon II, 928 S.W.2d at 564-65. Appellant specifically objected to:

1. Asking Pelfrey any questions concerning his guilt in these two offenses that are currently pending,
2. based on Pelfrey’s Fifth Amendment rights and
3. under Article I, Section 10 of the Texas Constitution.
4. That would also include asking whether or not Pelfrey was charged with these offenses.
*2665. Pelfrey is presumed to be innocent, and
6. the rules of evidence provide that a person may be — testimony may be impeached by the admission or the asking of a felony conviction.
7. And in this instance, Pelfrey has not been convicted. These cases are pending.

Appellant’s objections were based on two distinct rules of evidence. First, by requesting the court not to go into the fact Pelfrey had been charged with two felonies, Tex.R.Crim. Evid. 608(b), wherein specific instances of conduct may not be inquired into on cross-examination, was implicated.2 The rule provides:

Specific instance of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor provided by extrinsic evidence.

Tex.R.Crim. Evid. 608(b).

Second, because Pelfrey had not been convicted, Tex.R.Grim. Evid. 609, which provides only for impeachment by evidence of conviction of a crime, was implicated.

From the record, it is clear the trial judge was sufficiently apprised that these were appellant’s objections. See, Dixon II, 928 S.W.2d at 564 (quoting Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977), and Lankston v. State, 827 S.W.2d 907 (Tex.Cr.App.1992)(a general objection will preserve error if its grounds are apparent to the trial judge Xemphasis supplied)). Appellant’s objections were timely and the trial judge overruled the objections, thus under Tex.R.App. P. 52, those objections were sufficient to preserve this issue for appellate review.3

III.

Having determined the error was preserved for appellate review, we now address the merits of the issue. The State argues the Tex.R.Crim. Evid. 612 trumps Tex.R.Crim. Evid. 608 or 609.4 The Court of Appeals, relying on two of their own decisions, held “the plain language of Rule 612(b) creates an exception to Rule 608(b) where the evidence shows bias or a motive for the witness to testify untruthfully.” Dixon III, 955 S.W.2d at 900. However, neither case is on point. The first case, Sparks v. State, 943 S.W.2d 513 (Tex.App.—Fort Worth 1997), dealt with the propriety of the State’s cross-examination of an expert witness with prior testimony from another trial. And, Thomas v. State, 897 S.W.2d 539 (Tex.App.—Fort Worth 1995), was a case of sexual assault where the defendant claimed the sex was consensual. The Court of Appeals reversed the conviction because the trial judge erred in prohibiting cross examination of the complainant regarding the jealous nature of her boyfriend. While the Court of Appeals correctly determined this was an appropriate area of cross-examination, Thomas has absolutely nothing to do with the instant case.

*267The Rules of Evidence provide specific and general directives and are meant to work in conformity. Should an inconsistency arise, it should be removed by reasonable construction.5 Simply stated, general rules are not meant to supercede specific rules. Under Tex.R.Crim. Evid. 612, the parties are allowed to question a witness regarding a bias or interest. This is a general rule because

The possible reasons that might cause a witness to be biased or interested in the outcome of a particular lawsuit are as numerous and varied as the infinite range of human emotions and motives. Some common forms of impeachment to show bias include racial prejudice, family relationship, employment, personal friendship or enmity, prior business dealings, prior “bad blood,” threats, and many others. A witness’s bias may be directed toward a particular person or it may be that he harbors a general bias against a group or class of which the opposing party is a member, (footnotes omitted) ...

Cathleen C. Herasimchuk, Texas Rules of Evidence Handbook § 618(b), p. 611-612 (3d ed.1998).6 In contrast, Rules 608(b) is a specific rule relating to “specific” instances of conduct. Similarly, Rule 609 is a specific rule which provides an exception to Rule 608(b) and provides for impeachment by evidence of a criminal conviction.

In the instant case, the trial judge overruled appellant’s objection under Tex. R.Crim. Evid. 608(b) and 609 under the guise of allowing impeachment under Tex. R.Crim. Evid. 612, to show motive or bias. However, the State’s cross-examination was merely to bring out evidence of the pending charges; the State never questioned Pelfrey regarding his possible bias or motive.7 Consequently the cross-examination was specifically prohibited by Rules 608(b) and 609.

Accordingly, we hold the Court of Appeals erred in holding the trial judge did not err in permitting the State to cross-examine Pelfry as to his pending charges. To hold otherwise would eviscerate Rules 608(b) and 609. The judgment of the Court of Appeals is reversed and the case remanded to that Court for a harm analysis. Tex.R.App. P. 44.2.

WOMACK, J. delivered a dissenting opinion, joined by McCORMICK, P.J. and KELLER, J.

. The granted grounds for review are specifically:

1. Did the Court of Appeals reversibly err in holding that the error raised on appeal was waived by trial counsel.
2. Did the Court of Appeals reversibly err in holding that a defense witness could be properly impeached by evidence of a pending felony.

. The Texas Rules of Civil Evidence and the Texas Rules of Criminal Evidence have now been combined into the Texas Rules of Evidence. This opinion, however, will refer to the Texas Rules of Criminal Evidence, as they were in effect at the time of the trial.

. Tex.R.App. P. 52 (West 1993) provided:

Preservation of Appellate Complaints
(a) General Rule. In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling on the party’s request, objection, or motion. If the trial judge refuses to rule, an objection to the court’s refusal to rule is sufficient to preserve the complaint. It is not necessary to formally except to rulings or orders of the trial court.

Tex.R.App. P. 52 is now Tex.R.App. P. 33 and substantially similar.

. Tex.R.Crim. Evid. 612 is now Tex.R. Evid. 613 under the unified Texas Rules of Evidence promulgated by the Texas Supreme Court and this Court, effective March 1, 1998. The rules are identical.

. Tex.R.Crim. Evid. 101(c) provides: Hierarchical governance shall be in the following order: the Constitution of the United States, those federal statutes which control states under the Supremacy Clause, the Constitution of Texas, the Code of Criminal Procedure and the Penal Code, civil statutes, these rules, the common law of England. Where possible, inconsistency is to be removed by reasonable construction, (emphasis supplied).

. Additionally, a good faith basis for the attempt to impeach regarding bias or interest is required. John William Strong et al., McCormick on Evidence, § 39 (4th ed.1992).

. The relevant cross examination regarding the pending charges is as follows:

Q: Mr. Pelfrey, you presently have two cases pending, don't you?
Mr. Dickson [appellant’s trial counsel]: I’m going to object to that, Your Honor.
The Court: For the reasons stated previously, I will overrule the objection.
Q: You can answer the question Mr. Pelfrey.
A: Yes.
Q: And one of those cases you are charged with aggravated sexual assault of a child; is that correct?
A: Yes.
Q: Indecency-fondling of a child, indecent exposure with a child and incest with a child; is that correct?
A: Yes.
Q: In the other case, you are charged with indecency-fondling of a child and indecent exposure with a child?
A: Yes.
Q: And that is in this Court; is that correct?
A: Yes.
Ms. Jack: Pass the witness, your Honor.