Dixon v. State

OPINION ON STATE’S MOTION FOR REHEARING

McCORMICK, P.J.,

delivered the opinion of the Court, in which MANSFIELD, KELLER, HOLLAND, WOMACK and KEASLER, JJ., joined.

The State has asserted five grounds in a motion for rehearing requesting the Court to reconsider its December 16, 1998, opinion on original submission.1 We granted rehearing on grounds one through three. We will sustain grounds one and two in the State’s motion for rehearing, dismiss ground three in the State’s motion for rehearing, overrule ground for review one in appellant’s discretionary review petition, dismiss as improvidently granted ground for review two in appellant’s discretionary review petition, and affirm the judgment of the Court of Appeals.

The procedural history and facts of this case are set out in the opinion of the Court of Appeals. Dixon v. State, 955 S.W.2d 898, 899 (Tex.App.—Fort Worth 1997).2 The prosecution sought to impeach defense witness Pelfrey with two pending felony indictments. Id. Appellant objected under Tex.R.Crim.Evid. 608(b)3 claiming that only “final felony convictions may be used to impeach testimony.”4 The trial court permitted the impeachment under Tex. R.Crim.Evid. 612(b) to show “bias and motive.” Dixon, 955 S.W.2d at 899.

On direct appeal, appellant claimed the impeachment was improper under Rule 612(b). The Court of Appeals decided appellant’s Rule 608(b) trial objection failed to preserve his Rule 612(b) claim for appeal. Dixon, 955 S.W.2d at 900. We exercised our discretionary authority to review this decision (ground for review one). The Court of Appeals also decided the impeachment was proper under Rule 612(b). Dixon, 955 S.W.2d at 900. We exercised our discretionary authority to review this decision (ground for review two). The Court’s December 16, 1998, opinion on original submission sustained both grounds for review, reversed the judgment of the Court of Appeals, and remanded the case there for a harm analysis.

The Court’s opinion on original submission decided appellant’s trial objection under Rule 608(b) preserved a Rule 608(b) claim for appeal.5 The Court’s opinion on original submission then decided the impeachment was improper under Rule 612(b) because the prosecution “never questioned Pelfrey regarding his possible bias or motive.” The Court’s opinion on *271original submission then decided the impeachment was also improper under Rule 608(b) — a proposition with which everyone including the trial court did not dispute. In this way the Court’s opinion on original submission managed to avoid addressing the preservation issue presented in ground for review one of appellant’s discretionary review petition.

Of greater concern is some language in the Court’s opinion on original submission which suggests an inconsistency exists between Rule 608(b) and Rule 612(b) when it comes to impeaching a witness with specific instances of conduct. This language might lead some within the bench and bar to conclude erroneously that when specific instances of conduct are used for impeachment purposes, the “specific” provisions of Rule 608(b) control over the more “general” provisions of Rule 612(b) even if the specific instances of conduct are otherwise admissible under Rule 612(b) to show bias and motive.6 The opinion of the Court of Appeals also contains some language saying Rule 612(b) is an “exception” to Rule 608(b). Dixon, 955 S.W.2d at 900.

While Tex.R.Crim.Evid. 608 and Rule 612(b) deal with the same general subject matter of impeaching witnesses, they nevertheless are distinct rules which serve different purposes. Tex.R.Crim.Evid. 608(a) says how to impeach a witness’s general character for truthfulness. Rule 608(b) expressly bars impeaching a witness’s general character for truthfulness with specific acts of conduct “other than conviction of crime as provided in” Tex. R.Crim.Evid. 609.

Rule 612(b) permits impeaching a witness by proof of “circumstances or statements” showing the witness s bias or interest in a particular case. Unlike Rule 608(b), Rule 612(b) does not expressly bar the use of specific instances of conduct to show bias or interest.

“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 a 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.”7

So Rule 612(b) is different from Rule 608. Rule 608 addresses a witness’s general character for truthfulness. Rule 612(b) addresses a witness’s trustworthiness in the particular case because of some bias or interest.

“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 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.”8

Therefore, our opinion on original submission incorrectly suggested Rule 608(b) controls over Rule 612(b) when a party seeks to impeach a witness with specific instances of conduct to show bias or interest and the Court of Appeals also incorrectly suggested Rule 612(b) is an “excep*272tion” to Rule 608(b). These are distinct rules which serve different purposes.9

It also is noteworthy the Court’s opinion on original submission relied on a Texas Evidence treatise which the opinion on original submission apparently considered to be persuasive, learned and authoritative. Cathleen C. Herasimchuck, Texas Rules of Evidence Handbook, Section 613(b), at 611-12 (3d ed.1998). After our opinion on original submission was handed down, the author of this treatise filed an amicus curiae letter brief stating this treatise was “never intended to convey that Rule 612 is somehow a ‘general’ rule of impeachment while [Rule 608 was] more ‘specific.’” This letter brief also says the treatise states precisely the opposite of what our opinion on original submission decided.

Consistent with the foregoing discussion, the letter brief states:

“What I intended to say was that we have various means of impeachment for credibility. One of those means is by demonstrating that the witness, as a general proposition [10] (on Monday to the cleaners, on Tuesday to the bank, on Wednesday to the police, on Thursday in Court) is not a truth teller. He should not be believed whenever he opens his mouth. One way of demonstrating that general lack of credibility is by showing that he has a poor reputation in the community for truthtelling; another is that a specific character witness testifies that, in his opinion, the fact witness is not a truthteller, is not worthy of belief. These two types of general credibility impeachment are explicitly permitted under Rule 608(a). A third way of attacking the general [11] credibility of a witness and demonstrating that he is simply never to be believed on any day on any topic is to prove that he did not tell the truth on certain specific occasions, e.g. he lied to the IRS in 1985, he lied to his wife in 1997 about an extramarital affair, he lied to his boss about making personal phone calls on the company phone in 1995. Under Federal [12] Rule 608(b), -the trial judge has discretion to allow this third type of impeachment — all those little lies out on the street that paint a picture of a generally untruthful person. The drafters of the original Texas Rules of Evidence, both Civil and Criminal, considered this ‘greasy kid stuff that was all too likely to distract the jury from its proper function and take up more time than the proposition was worth. It was basically character assassination. Under [Rule 608(b) ], it is prohibited. A fourth, entirely distinct, way of showing that a person is generally [13] unworthy of belief is to prove that he has previously been convicted of a felony or certain misdemeanor offenses which presumably reflect upon his character for truthfulness. That general mode of impeachment is covered by Rule 609 with all its caveats. Each of the four major modes of impeachment for general lack of credibility is governed by the specific eviden-tiary rules and/or precedent relating to those specific modes.
“IRule 612(b) ] deals with any (sic) entirely different type of impeachment.[14] Under this mode of impeachment, the fact witness might be the Pope or George Washington, or some other witness known far and wide for his probity, general honesty and truthtelling. But, for some unique, special reason, he might have a particular reason to slant his testimony, unconsciously or con*273sciously, for or against one party. Surely, if the defendant in a criminal case were the Pope’s mother, bodyguard, banker, or favorite Archbishop, the jury is entitled to know that fact since it is a possible reason for the Pope to be a slightly less neutral observer in this case than in some other trial. For this reason, the right to impeach for bias and motive is especially significant in American jurisprudence.
“Under [Rule 612(b) ], we still follow ‘Queen Caroline’s Rule.’ That is, in Texas we are still gentlemen and require the cross-examiner to ask the witness about the facts which might give rise to the motive or bias. We must ask the Pope, ‘Isn’t it true that the defendant is your mother, bodyguard, banker or favorite Archbishop?’ But that is all. It gives him an opportunity to deny, admit, or explain the factual basis for his possible bias. If the potential bias concerns a specific event or prior statements the witness has made, then we must also tell him where and when, and, if a statement, to whom the statement was made. “Thus, [Rule 612(b) ] deals with a specific reason why a witness might slant or shade the truth in this one instance while [Rule 608(b) deals] with the witness who, it is asserted, does not tell the truth as a general proposition. The rules do not deal with the same type of impeachment and should be considered as distinct and independent.” 15

In this case appellant objected to the prosecution’s cross-examination of Pel-frey under Rule 608(b) immediately before Pelfrey was called to the stand. Dixon, 955 S.W.2d at 899. The basis of appellant’s Rule 608(b) objection was that only “final felony convictions may be used to impeach testimony.” The trial court permitted the cross-examination under Rule 612(b) to show “bias and motive” which effectively was a ruling sustaining appellant’s Rule 608(b) objection. Dixon, 955 S.W.2d at 899. Appellant made no further objection except for another general objection during the prosecution’s cross-examination of Pelfrey which the trial court overruled “for the reasons stated previously.” Dixon, 955 S.W.2d at 899. On appeal appellant claimed the trial court erred to permit the cross-examination under Rule 612(b). Dixon, 955 S.W.2d at 899.

On this record appellant failed to preserve the Rule 612(b) issue for appeal because his appellate complaint does not comport with his trial objection. See Broxton v. State, 909 S.W.2d 912, 918 (Tex.Cr.App.1995) (to preserve error for appellate review, complaint on appeal must comport with objection at trial, and an objection stating one legal theory may not be used to support a different legal theory on appeal); Tex.R.App.Proc. 52(a) (to preserve complaint for appellate review, party must, among other things, present an objection stating the specific grounds for the ruling he desires). Based on the foregoing discussion about the distinct and different purposes served by Rule 608(b) and Rule 612(b), appellant’s Rule 608(b) objection that “only final felony convictions may be used to impeach testimony” failed to articulate any kind of an objection under Rule 612(b). See Lankston v. State, 827 S.W.2d 907, 909 (Tex.Cr.App.1992) (when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost).

In addition, the trial court effectively sustained appellant’s Rule 608(b) objection when it initially permitted the prosecution’s cross-examination under Rule 612(b) to show “bias and motive” and then later overruled appellant’s general objection again “for the reasons stated previously.” Dixon, 955 S.W.2d at 899. In other words, the trial court, recognizing the distinct and different purposes served by Rule 608(b) and Rule 612(b), agreed with appellant that the prosecution’s cross-examination of *274Pelfrey was impermissible under Rule 608(b). After this, appellant pursued no other objection or complaint to an adverse ruling. See Rule 52(a) (to preserve complaint for appellate review, party must, among other things, obtain a ruling on his objection); cf. Cockrell v. State, 933 S.W.2d 73, 88-89 (Tex.Cr.App.1996), cert. denied, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed.2d 548 (1997) (to preserve appellate complaint about jury argument, party must pursue objection to an adverse ruling). On this record, appellant received all the relief he specifically requested when the trial court effectively sustained his Rule 608(b) objection. Cf. Cockrell, 933 S.W.2d at 88-89.

The judgments of the Court of Appeals are affirmed.

PRICE, J., filed a concurring opinion in which MEYERS and JOHNSON, JJ., joined.

. Dixon v. State, 2 S.W.3d 263 (Tex.Cr.App.1998).

. See also Dixon v. State, 928 S.W.2d 564 (Tex.Cr.App.1996), reversing Dixon v. State, 923 S.W.2d 161 (Tex.App.—Fort Worth 1996).

. The Texas Rules of Criminal Evidence were in effect at the time of trial in 1995. This opinion refers to the Texas Rules of Criminal Evidence and not to the current Texas Rules of Evidence.

. See Dixon, 928 S.W.2d at 564; Tex.R.Crim.Evid. 609.

. Therefore, the Court’s opinion on original submission on ground for review one decided a different issue than that presented and argued in the Court of Appeals and upon which the Court granted discretionary review. This is another problem with the Court's opinion on original submission. See State v. Consaul, 982 S.W.2d 899 (Tex.Cr.App.1998) and at 900-03 (Price, J., concurring) (court exercised discretion to dismiss discretionary review petition because issue presented in ground for review not argued below). No one has ever claimed appellant's Rule 608(b) objection failed to preserve a Rule 608(b) claim for appeal.

. In its second ground for rehearing, the State argues the "unprecedented notion that evidence, which is admissible under one impeachment rule, also has to pass muster under another theory of impeachment simply cannot withstand scrutiny.” (Emphasis in Original). We agree.

. 1 Steven Goode et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal, Section 608.1, at 574 (2d ed.1993) (footnotes omitted).

. 1 Steven Goode et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal, Section 613.6, at 651 (footnotes omitted).

. The record also indicates the trial court apparently understood that Rule 608(b) and Rule 612(b) serve different purposes when it overruled appellant's Rule 608(b) objection and admitted the evidence under Rule 612(b) to show "bias and motive.”

. Emphasis in Original.

. Emphasis in Original.

. Emphasis in Original.

. Emphasis in Original.

. Emphasis Supplied.

. Emphasis Supplied.