Dixon v. State

WOMACK, J.,

filed a dissenting opinion, in which McCORMICK, P.J., and KELLER, J., joined.

We granted the appellant’s petition for discretionary review to determine: (1) *268whether the Court of Appeals reversibly erred in holding that error raised on appeal was waived by trial counsel and (2) whether the Court of Appeals reversibly erred in holding that a defense witness could be properly impeached by evidence of a pending felony. Because I disagree with the majority that the appellant preserved error on his Texas Rule of Criminal Evidence 6121 complaint, I dissent.

On the appellant’s ground of error one, I would hold that although the appellant preserved error as to his Rule 608 and 609 claim, see Dixon v. State, 928 S.W.2d 564, 565 (Tex.Cr.App.1996), the appellant did not preserve error on the Rule 612 complaint.

The Court of Appeals held that the appellant had not preserved error because the appellant did not object to the questions about defense witness pending charges on the basis that the testimony was inadmissible under Rule 612(b). Dixon v. State, 955 S.W.2d 898, 900 (Tex.App.—Fort Worth 1997, pet. granted). The appellant’s objection, we held previously, Dixon, 928 S.W.2d at 565, adopted the grounds within Mr. Pelfre/s motion to prohibit the State from asking questions about the his pending charges.2 The relevant part of the motion before the trial court, and thus, the appellant’s objection, were based on Texas Rule of Criminal Evidence 608(b).3

The objection adopting the witness’s motion complained of the use of the pending charges as impeachment of the witness’s character generally, as prohibited in Rule 609(a).4 The trial court overruled the appellant’s objection “[fjor the reasons stated previously.” In response to the witness’s motion, the trial court had ruled that the testimony was admissible to show bias or motive.5

In his brief to this Court, the appellant complains that the Court of Appeals is *269placing the burden on the appellant to “except” to the trial court’s overruling his objection and also complains that the State did not establish relevance to admit evidence under Rule 612. See Chambers v. State, 866 S.W.2d 9, 26-27 (Tex.Cr.App.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994) (stating that the burden of showing relevance is on the proponent). I disagree that the Court of Appeals’s opinion required that the appellant “except” to the trial court’s overruling his objection, and I believe that the appellant did not preserve error on his complaint that the State did not establish relevance. The appellant was free to object to the State’s inquiry into Mr. Pelfrey’s pending charges on more than one ground; he did not. Instead he adopted the grounds of the motion of the witness’s attorney. The appellant failed to preserve any Rule 612 complaint.

Rules 608, 609, and 612 deal with the same general subject matter: impeachment of witnesses. They serve different purposes, however. Rule 608(b) deals with the witness’s character for truthfulness, and bars the use of specific acts of conduct, for that purpose, except as provided in Rule 609.

Rule 608 does not bar evidence of specific acts not resulting in conviction as an impeachment device in all instances. It proscribes such proof only when offered for a particular purpose: to establish the witness’s character for veracity so the jury may infer that he is more or less likely to be testifying truthfully. Specific acts may, however, be proved for other purposes. For example, a witness’s acts may reveal a bias toward or against one of the litigants.

1 Steven Goode et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal, § 608.1, at 574 (2d ed.1993) (footnotes omitted). In other words, specific acts may be admissible if offered for a purpose other than showing the witness’s veracity, pursuant to another rule of evidence.

Rule 612 has multiple provisions dealing with impeachment by prior inconsistent statements, rehabilitation with a prior consistent statement, and impeachment by showing bias or interest. Rule 612(b), dealing with bias or interest, is different from Rule 608 in that it does not address the witness’s general character for telling the truth.

Unlike attacks on a witness’s character, which reflect on the witness’s truthtell-ing tendencies generally, attacks concerning bias or interest relate only to the specific litigation or parties. The impeaching party must attempt to show that the witness’s attitude is such that he is likely to favor or disfavor a particular litigant’s position for reasons unrelated to the merits of the suit.

Id. § 613.6, at 651 (footnotes omitted). In this way, the Court of Appeals is incorrect in its construction of the Rules. Rule 612(b) is not an exception to Rule 608(b); the two rules deal with different instances of the use of specific conduct to impeach. Therefore, a Rule 608 or 609 objection cannot preserve a complaint about the State’s failure to establish relevance between pending charges and a witness’s bias or motive under Rule 612.

The linchpin of the Court’s opinion is that “the State never questioned Pelfrey regarding his possible bias or motive.” Ante at 267 (footnote omitted). This is certainly the key point of a Rule 612 objection. But the appellant did not object on the basis of Rule 612. The objection appellant made, adopting the grounds of the witness’s motion, was on the basis of Rules 608 and 609. To preserve error for appellate review, the complaining party must make a timely, specific objection and obtain a ruling on the objection. Tex.R.App. P. 52(a);6 Broxton v. State, 909 S.W.2d 912, 918 (Tex.Cr.App.1995). Also, the complaint on appeal must comport with the objection at trial. Broxton, 909 *270S.W.2d at 918. “An objection stating one legal theory may not be used to support a different legal theory on appeal.” Id. (citing Johnson v. State, 803 S.W.2d 272, 292 (Tex.Cr.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991)). The appellant’s first ground of error should be overruled.

Because the appellant did not preserve the complaint for appeal, the matter was not properly before the Court of Appeals. As I result I would not discuss the merits of the appellant’s complaint. Because I would affirm the appellant’s conviction, I dissent.

. The Texas Rules of Criminal Evidence were in effect at the time of trial in 1995. All references to Rules are to the Texas Rules of Criminal Evidence and not to the current Texas Rules of Evidence.

. Mr. Pelfry’s attorney said:

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.

. Rule 608(b) states:

Specific instances 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 proved by extrinsic evidence.

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

. Rule 609(a) states that:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.

. The trial court was referring to Rule 612(b), which states in relevant part:

In impeaching a witness by proof of circumstances or statements showing bias or interest, on the part of such witness, and before further cross-examination concerning, or extrinsic evidence of, such bias or interest may be allowed, the circumstances supporting such claim or the details of such statement, including the contents and where, when and to whom made, must be made known to the witness, and the witness must be given an opportunity to explain or deny such circumstances or statement.

. Now Texas Rule of Appellate Procedure 33.1(a)(1).