Armstrong v. State

¶1OPINION ON STATE’S MOTION FOR REHEARING

¶2This is an appeal from a conviction for capital murder. V.T.C.A., Penal Code, Sec. 19.03(a)(2). Punishment was assessed at death. On original submission this Court reversed the conviction because the trial court allowed inadmissible evidence to be brought before the jury over appellant’s objection. We granted the State’s motion for leave to file a motion for rehearing to review this holding.

¶3The evidence in question is the testimony given by the deceased’s widow, Eva Maldonado. Mrs. Maldonado was called by the State in rebuttal during the punishment phase of trial, over appellant’s objection that her testimony would not be proper rebuttal. We will first examine the evidence presented by appellant, to see exactly what the State was attempting to rebut.

¶4Appellant called no witnesses on guilt-innocence. During the punishment phase, however, appellant called ten witnesses. Most testified that they had known appellant all his life. All the witnesses testified that they had never known appellant to be violent or to carry a gun. They were shocked when they heard he had been arrested for capital murder. The final defense witness was appellant’s mother. She testified that appellant had always been quiet and nonviolent, had helped her financially, and that she did not consider him a threat. She concluded her testimony with an emotional plea to the jury to spare appellant’s life.

¶5In rebuttal the State called Larry Duvall, who had been an inmate with appellant in the county jail while both were awaiting trial. Duvall testified that appellant had assaulted him and two others and was both a ringleader and an instigator of violence in the jail.

¶6The State then called Eva Maldonado. Appellant’s objection1 was overruled and Maldonado testified as follows:

“Q. [by the prosecutor] What was your husband’s name?

“A. Charlie Levi Maldonado.

“Q. When were you married to Charlie?

“A. Um, we were going to be married twenty-two years uh, December the 15th.

“Q. Did you and he have children?

“A. Yes.

“Q. Are they still living?

“A. Yes.

“Q. What are their names?

“A. Charlie Junior, and Debbie, Brenda, and Timmy and Tammy.

“Q. Was Charlie a hard-working man, Eva?

“A. Yes.

“Q. What kind of work did he do?

“A. He was a, a store manager.

*697“Q. Did he work all your life that you were married to him?

“A. Yes, he never missed a day’s work even if he was sick. He never missed a day’s work, never.

“Q. Was he a good father to these children?

“A. Yes. I mean, my kids couldn’t ask for a better daddy.

“Q. Was he a good husband to you?

“A. Yes.

“Q. Was he a peaceful—

“A. Yes.

“Q. —person?

“A. He was a real nice person. He was real nice to everybody. I mean, white, Spanish, colored. He was a real nice man to everybody.

“Q. Did he have a lot of friends?

“A. Oh, yes.”

¶7Mrs. Maldonado then identified two photographs. The first showed the deceased with his wife and children, and the second was of the deceased with his wife. These were admitted into evidence over appellant’s objection. She further testified as to the work hours of the deceased and that no gun was kept in the store as far as she knew. Finally, she testified as to the age of the deceased on the date of the offense, the ages of their five children, and which ones were still attending school. Appellant did not cross-examine her, and the State and defense rested.

¶8This Court on original submission held that the admission of this testimony constituted reversible error because the appellant had not first introduced any evidence as to the character of the deceased. We said:

“Appellant is correct in stating the rule:

“It is never competent for the State in the first instance to prove that the person slain was peaceable and inoffensive. Such evidence becomes admissible in rebuttal when the opposite has been testified to in behalf of the defense, or when the defendant seeks to justify the homicide on the ground of threats made by the deceased.

“Arthur v. State, [170 Tex.Cr.R. 161] 339 S.W.2d 538, 539 (Tex.Cr.App.1960). See Lamb v. State, 680 S.W.2d 11 (Tex.Cr.App.1984) wherein the rule is applicable to capital murder.”

¶9The State argues2 that Lamb, supra, did not apply this rule to capital murder prosecutions. We disagree. In Lamb, supra, the defendant being tried for capital murder contended that he had killed the deceased in response to an offensive homosexual advance made by deceased. To support this allegation the defendant introduced into evidence a document in deceased’s travel bag that alluded to a gay rights organization. In rebuttal the State offered into evidence deceased’s job resume and travel receipts, to rebut the defendant’s allegations that deceased was homosexual and that there was any previously existing relationship between the defendant and the deceased. This Court held that such evidence was admissible in rebuttal because the defendant had placed the deceased’s character in issue. The Court distinguished Clark v. State, 158 Tex.Cr.R. 180, 254 S.W.2d 106 (Tex.Cr.App.1953), holding that Clark“did not ... disavow the notion that evidence of whether a deceased in a murder case was a person of violent or dangerous character, or a person of kind and inoffensive disposition, would be admissible where warranted. ” 680 S.W.2d at 16 (emphasis added). The Lambopinion further advised the reader to “see also Hatley v. State, 533 S.W.2d 27 (Tex.Cr.App.1976).” Hatley, supra, quotes the same rule from Arthur, supra, quoted above and in our opinion on original submission, to the effect that the State may not introduce evidence of the deceased’s good character unless that character has somehow been placed in issue by the defendant. We hold, therefore, that this rule is applicable to cases of capital murder.

¶10*698The State next argues that the evidence of the deceased’s peaceful character bears directly on special issue number three, as provided in Art. 37.071(b)(3), supra,3 and therefore, had this special issue been submitted to the jury, then the evidence of the deceased’s character would have been relevant and admissible. Since the State could not have predicted whether the appellant would later request the third special issue, the argument goes, then the State necessarily was required to put forth the disputed evidence to address that special issue. We disagree with this analysis. In a capital murder trial, evidence regarding provocation by the deceased must be raised by the facts of the case and cannot be anticipatorily rebutted by the State by introducing evidence as to the peaceful character of the deceased, on the mere speculation that the defense may request such a special issue. A contrary holding would completely do away with the rule that the State is barred from bringing forth evidence of the peaceful nature of the deceased until the defendant puts the character of the deceased into issue, see Arthur, supra, as the State could always subsequently argue that such evidence was submitted in anticipation of the special issue of provocation. The State may not introduce otherwise inadmissible evidence in order to rebut an issue that has not been raised.

¶11The State further argues that the defense witnesses raised the issue of provocation through their testimony as to appellant’s peaceful and law-abiding nature. The State argues that this evidence “created a strong implication that the deceased’s character at the time of the shooting must have invited or affected the appellant’s conduct.” We hold that this evidence did not raise the issue of provocation. To hold otherwise would require the submission of the issue of provocation to the jury every time the defendant wished to introduce favorable character evidence. As stated above, the issue of provocation must be supported by the facts of each case. The issue was not raised in the instant case. The State’s medical evidence showed that the deceased had been shot in the back of the head while he was sitting on a crate. Furthermore, the State’s witness Laura Pollard testified that a week before the offense appellant told her he was going to commit a robbery at the store and would kill “anybody” who “got in his way.” There was no indication that appellant committed the murder in response to provocation. At the time of the bench conference before Eva Maldonado was allowed to testify, defense counsel asserted that the provocation issue had not been raised and that the defense would not request the third special issue be submitted to the jury. The trial court agreed that the issue had not been raised by the evidence. We also agree. Mrs. Maldonado’s testimony was not admissible on this basis.

¶12There was no evidence of any dispute, violent or otherwise, between appellant and deceased, as there was in, e.g., Lamb, supra. There was therefore no occasion for the type of rebuttal testimony given by Mrs. Maldonado. Furthermore, her testimony went beyond vouching for the peaceful and law-abiding nature of her late husband. She testified that the deceased was hard-working, a good husband and father, and had many friends, and her identification allowed the State to place before the jury pictures of the deceased with his family. As this Court said in a similar case of a widow testifying, “There can be no doubt that this testimony had no bearing whatso*699ever on any material issue in the case and its sole purpose was to inflame the minds of the jury.” Vela v. State, 516 S.W.2d 176, 179 (Tex.Cr.App.1974). See also the many cases cited therein. Id.

¶13The only character appellant put in issue through his witnesses was his own. The testimony of the State’s first rebuttal witness as to appellant’s conduct in jail went properly to that issue. Evidence of appellant’s peaceful and law-abiding character does not, however, automatically implicate the character of the deceased. Mrs. Maldonado had no testimony to offer as to the character of appellant. Her testimony was not rebuttal. Therefore it was error to allow this testimony. If preserved, it was reversible error.

¶14Error of this type may be waived if the objection is insufficiently specific, Vela, supra at 178, or untimely made. Objection to the introduction of the evidence must be made at the earliest opportunity. Montelongo v. State, 681 S.W.2d 47, 57 (Tex.Cr.App.1984). The objection must be made as soon as the ground for the objection becomes apparent. Thompson v. State, 691 S.W.2d 627, 635 (Tex.Cr.App.1984). In the instant case appellant met both these criteria.

¶15As soon as the State called Eva Maldonado as a rebuttal witness appellant objected and the following colloquy ensued among the trial court, the State’s attorney, and the two defense attorneys. The jury was removed during the lengthy exchange.

“MR. MacLEAN [prosecuting attorney]: Your honor, the State proposes to put on Mrs. Maldonado briefly to identify a picture of her husband, the deceased, to let the jury know who her five children are.

“THE COURT: That's not rebuttal. John, that’s no form or fashion of rebuttal.

“MR. MacLEAN: In addition to that, Your Honor, there’s been testimony about his good reputation, that he’s been a peaceful and law-abiding citizen.

“THE COURT: Who? ‘He’ who?

“MR. MacLEAN: The Defendant. Mrs. Maldonado is aware that her husband had been robbed on a prior occasion, and that there was not a gun in the store, and that they had discussed the robbery, and that he had stated words to the effect, or she had stated to him, ‘Just let them have it,’ and don’t contest the assailant.

“MR. PRITCHARD [attorney for appellant]: Judge, I don’t see where that’s rebuttal.

“MR. MacLEAN: I think it’s highly relevant in light of what they have shown, that they have tried to show he’s such a peaceful and law-abiding citizen through their character witnesses. The man here that he shot was a peaceful man and not a violent man.

“MR. PRITCHARD: Not a question about that.

“MR. MacLEAN: I think that has direct bearing in the way of rebuttal to the testimony they have put on that he’s just a very peaceful, quiet, little person that wouldn’t harm anybody. Well, the character of the person who was killed in this case, the fact that he’s not violent and wouldn’t be the type that would combat an assailant who came into the store that robbed him, the fact that he had been robbed before and let them have what they came after is relevant to what they are trying to portray to the jury their client is like.

“THE COURT: Perhaps within some minor limits, but it’s not going to some speech about some previous attempted robbery and discussion about anything the deceased said to her.

“MR. MacLEAN: That’s correct, Judge.

“THE COURT: But not any mention whatsoever of some attempted robbery or something three months before. It has nothing to do with this case. That’s highly improper.

“MR. PRITCHARD: Judge, also, we brought forth no evidence at all as to Mr. Maldonado.

*700“THE COURT: You brought forth evidence about his good character and so forth. That raises some indicia of what they’re talking about.

“MR. PRITCHARD: It raises something about Mr. Maldonado’s character?

“THE COURT: Yes, sir, in a way it does. He got killed in this episode.

“MR. PRITCHARD: I understand that, Judge. She doesn’t know anything about [appellant]. She can’t testify about him. The only thing we brought up is whether or not he was a peaceful and law-abiding citizen. She can’t testify about it.

“MR. TURNER [defense counsel]: This is rebuttal. That’s all it is.

“MR. MacLEAN: We have a right to put her on at this time for those limited purposes.

“THE COURT: Within mind what I said, what do you purpose [sic] to offer? We’re not going to hear anything about any other robbery or anything that bears on it.

“MR. MacLEAN: All right, Judge. We’re going to offer that he was a peaceful man, that she was his wife. He was not a combative man.

“THE COURT: All right.

“MR. MacLEAN: He was a good husband and a good father, and introduce a picture of her and the children, and her introduce the children, and sit down.

“THE COURT: No introducing the children. That’s out.

“MR. PRITCHARD: What about the picture, Judge?

“THE COURT: The picture’s all right. And it will be limited to that, or I’ll inject the Court’s instruction to stop it right there. Limit it strictly to that.

“MR. PRITCHARD: If that’s the case, Judge, let us enter an objection to Mrs. Maldonado’s testimony because we feel it’s not in rebuttal to anything, and it’s improper for her to testify at this time.

“MR. TURNER: Even for this limited purpose. There’s been no evidence.

“MR. PRITCHARD: There’s been none raised about Mr. Maldonado’s character.

“MR. TURNER: There is a proper time the State could have done this, and we don’t feel it’s in rebuttal to anything.

“MR. PRITCHARD: As far as the .third question he talked about, we haven’t asked the third question be done. And we’ll tell the Court right now that we’re not going to. So it has no bearing on the question.

“MR. TURNER: No evidence on it.

“THE COURT: I know you haven’t raised it.

“MR. PRITCHARD: I know it.

“THE COURT: Bring the jury in, sir. Bring the jury back in.

“MR. TURNER: Is that objection overruled, Your Honor?

“THE COURT: Yes, sir. After I explain here, you gentlemen I think understand what the Court is going to allow him to go into. Nothing else.”

¶16The State cites several cases4 in which nothing was presented for review because the defendant did not make his objection to certain testimony until after the testimony had already been adduced. In the instant case, however, appellant objected to the testimony of the widow of the deceased as soon as she was called as a State’s witness, before she had offered a word of testimony. The objection was lengthy, specific, and correct: that the deceased’s character had not been placed in issue by the defense witnesses, and that Mrs. Maldonado could not rebut the defense evidence that had been offered, as to appellant’s character. As defense counsel said of the proffered testimony, “[I]t’s not in rebuttal to anything, and it’s improper for her to testify at this time.” Furthermore, counsel was careful to obtain an adverse ruling to his objection. The objection was both timely and specific enough to preserve the error.

¶17*701Finally, the State argues that no reversible error is presented because the same evidence was admitted elsewhere without objection from appellant. Boles v. State, 598 S.W.2d 274, 279-80 (Tex.Cr.App.1980). The evidence of the deceased’s good character to which the State refers was adduced during direct examination of one State’s witness and during cross-examination of five defense witnesses. On direct examination the State asked its witness Barbara Overton:

“Q. Did you know Charlie Maldonado during his lifetime?

“A. Yes.

“Q. Was he a good man?

“A. He was to me.”

¶18This was the extent of her testimony concerning the deceased. When appellant called his ten character witnesses on punishment, the State cross-examined five of them concerning the deceased. The cross-examination of Lofton Scott is typical:

“Q. Did you know his family, Charlie’s family?

“A. I saw his wife and seems like two boys.

“Q. With reference to Charlie, you saw him there in the store from time to time; did you not?

“A. Yes.

“Q. Was Charlie nice?

“A. Yes, sir.

“Q. Was he always nice to you?

“A. Yes, sir.

“Q. Did he have a reputation of being nice to people over there?

“A. Yes, sir.”

¶19The cross-examination testimony of the other four witnesses was to the same effect. They knew the deceased because they were occasional customers of the store he managed, and in that capacity he always treated them well. The defense made no objection. The State now argues that because appellant failed to object to this testimony, the admission of the testimony from deceased’s widow is harmless.

¶20To determine whether this testimony constitutes the “same evidence,” we shall examine cases in which this waiver rule has been applied. In Boles, supra, the evidence complained of was a ballistics report used by the State to link the defendant to the gun used to kill the deceased. The evidence that had come in without objection was testimony from two witnesses that shortly after the shooting the defendant had told them she had shot the deceased. Further, the defendant herself identified the pistol as the one she had taken into the deceased’s home, and with which deceased was shot. 598 S.W.2d at 279.

¶21Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980), was a capital murder prosecution. The defendant’s former lawyer was improperly allowed to testify that the defendant had been in Lubbock, where the murder took place, at the time of the offense. This testimony was merely cumulative, however, and not reversible error, because “many other witnesses” testified that they had seen the defendant in Lubbock at the time of the offense. 600 S.W.2d at 296.

¶22In East v. State, 702 S.W.2d 606 (Tex.Cr.App.1985), another capital case, the testimony admitted over defense objection was that the defendant had committed an extraneous narcotics offense shortly before the offense for which he was tried. No reversible error was presented because another witness had already testified without objection to the same fact. Id. at 611.

¶23Nethery v. State, 692 S.W.2d 686 (Tex.Cr.App.1985), involved a prosecution for the capital murder of a police officer. The slain officer’s partner was allowed to testify over objection that he heard another witness tell his partner that she had been raped by the defendant. The error, if any, was harmless because the witness herself had already testified without objection that she had told the officer the defendant had raped her.

¶24In each of these cases this Court applied the rule that the admission of inadmissible evidence will not constitute reversible error where the “same facts” have *702come into evidence through other testimony without objection. The State urges that the rule applies to the instant case. We disagree. We cannot agree that the testimony adduced by the State that the deceased was a nice man who treated his customers with respect constitutes the same evidence as the testimony given by Mrs. Maldonado that the deceased was a kind, hard-working man, a good husband, and the best possible father to their five children. On original submission we said that the error was in admitting her testimony at all, when its “obvious purpose ... was to arouse and inflame the jury against appellant.” Certainly in its effect on the jury the testimony of witnesses who were only business acquaintances of the deceased’s that he was nice to them could not have nearly the inflammatory power of his now-widowed wife’s identifying a photo of the deceased with herself and their five now-fatherless children. The very placing of the widow on the stand represented an emotional appeal to the jury that had no relevance to the two special issues that the jury was called upon to answer. The glancing testimony of the other witnesses to deceased’s niceness cannot be considered “the same facts”; nor was it of remotely the same emotional caliber as Mrs. Maldonado’s testimony, in terms of likelihood of inflaming the jury’s emotions. The earlier testimony did not, therefore, render the admission of Mrs. Maldonado’s testimony harmless.

¶25The State called the widow of deceased as a rebuttal witness. She testified, though, only to her husband’s good character, which had not been placed in issue by appellant’s punishment witnesses. Her testimony was irrelevant to any issue before the jury and was not proper rebuttal. Appellant made timely and specific objection to the testimony. Earlier testimony as to the deceased’s respectful treatment of customers did not constitute the same evidence so as to render the error of admitting Mrs. Maldonado’s testimony harmless. Having rejected the State’s arguments, we adhere to our opinion on original submission.

¶26The State’s motion for rehearing is denied.

¶27MILLER, CAMPBELL and WHITE, JJ., dissent.