majority">

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

DUNCAN, Judge.

Rejecting his not guilty plea, a jury found the appellant guilty of aggravated kidnapping. Thereafter, with the consent of the State, as authorized by Art. 37.07, Sec. 2(b), V.A.C.C.P., the appellant withdrew his election to have the jury assess punishment. Then, in a rather unusual procedure identified by appellant’s counsel as a “plea bargain,” the State and the appellant agreed upon a punishment of ten years in the penitentiary. This was assessed by the trial court.

On direct appeal the Fourteenth Court of Appeals (Houston) reversed the appellant’s conviction in a published opinion. Green v. State, 700 S.W.2d 760 (Tex.App.1985). The Court of Appeals held that the trial court *273erred in not permitting appellant to call two additional witnesses to testify to his reputation for being a peaceful and law-abiding citizen. We granted the State’s petition for discretionary review to examine this holding.

The appellant does not question that there was sufficient evidence of his guilt. And, since the facts of the case are not decisive to the issue to be reviewed repeating them is unnecessary. See: Green v. State, supra.

Relevant to the issue to be reviewed, as stated by the Court of Appeals, was the following:

“Two witnesses testified as to appellant’s reputation for being a peaceful and law-abiding citizen. He tried to present the testimony of two additional character witnesses (one being his pastor), but this was denied by the trial court.” Id., 760.

The State argued on appeal, and now in its sole ground for review, that the record does not reflect that the trial court specifically denied a request to call the witnesses, and that appellant therefore preserved no error for review.

The record reflects that the appellant’s employer and a coworker testified that the appellant’s reputation for being a peaceful and law-abiding citizen in the community was good. These two witnesses testified on June 27, 1984, the second day of trial. Several bench conferences were held off the record during their testimony, one of which occurred at the conclusion of testimony on June 27. The trial presumably resumed the next day1 still at guilt-innocence, with the following:

“[DEFENSE COUNSEL]: Cause No. 397,101, State of Texas versus Gary William Green.

“Comes now defense attorney, Julian Moore, on behalf of Gary William Green and files this his informal bills [sic] of exceptions in proffer of evidence and would show that if he were allowed to call John Morgan and Rebecca Berry, they would testify as follows.

“John Morgan would testify that he is a preacher of a Baptist church attended by the defendant, Gary William Green for the past four years; that he familiar [sic] with the reputation in the community in which he lives as being a peaceful and law abiding citizen. That that reputation is good.

“Rebecca will testify that she has been in the home and that John Morgan would also testify that he has been in the home shortly before the date of [the offense] and the defendant and his wife were both residing there as a family. Further, that Rebecca Berry would testify that she is familiar with the reputation of the defendant, Gary William Green, in the community for [sic] which he resides as being a peaceful and law abiding citizen; that that reputation is good. She lives in the Woodlands and sees the defendant on a daily basis.

“Wherefore, premises considered, defendant prays he be allowed to call Rebecca and John Morgan. In the alternative I offer that this informal bill of exceptions be approved by the Court and the State’s attorney as being what they would testify to.

“[PROSECUTOR]: I, being David Knight, Assistant District Attorney, so stipulate.

“THE COURT: Thank you.”

Art. 36.20, V.A.C.C.P., provides in pertinent part as follows:

“The defendant, ... may tender his bills of exceptions to any decision, opinion, order or charge of the court or other proceedings in the case;

[[Image here]]

“Where the matter about which complaint is made and the trial court’s ruling thereon reasonably appear from any for*274mal or informal bill of exception, same shall be considered upon appeal, ...”

Art. 40.09(6)(d)(l), V.A.C.C.P. provides the means one can utilize an informal bill of exception to preserve error under Art. 36.20, V.A.C.C.P. According to Art. 40.-09(6)(d)(l), V.A.C.C.P., if the court refuses to admit into evidence offered testimony one is authorized to “adduce the excluded testimony ... before the reporter, and a transcription of his notes showing such testimony ... and any objections and exceptions of the party offering same, shall, when certified to by the reporter, and included in the record, establish the nature of such testimony ... and no bills of exception shall be essential to authorize appellate review of the question whether the court erred in excluding such testimo-ny_” Id.The appellant properly perfected his informal bill of exception relative to the testimony he proposed to present.

But, that is not all. After the appellant’s attorney concluded his “bill of exception” the State gratuitously and without any reservation stipulated to it. As such, the State not only stipulated to the content of the proffered witness’ testimony, it also concurred with the introductory prohibitive phrase: “... if he were allowed ...”

As previously quoted, prior to elaborating upon what his proposed witnesses would testify, appellant’s counsel commented: “... that if he [the appellant] were allowed to call witnesses....” The words that comprise that phrase are logically consistent with a prior denial by someone in authority. Reason and logic inexorably demand that the person in authority was the trial judge. Although counsel’s continuous proclivity for conferring with the court off the record is not to be condoned, it is difficult to conceive of any other reasonable explanation for that introductory remark than a refusal by the trial court to allow him to call the reputation witnesses.

Thus, we conclude that under Art. 40.-09(6)(d)(l), V.A.C.C.P. the appellant sufficiently identified the nature of the proposed witnesses’ testimony. We further find that under Art. 36.20, V.A.C.C.P., because of appellant’s counsel’s remarks pri- or to detailing the specifics of the proposed testimony the “trial court’s ruling thereon reasonably appear[s] from ... [the] informal bill of exception.”2 Adding to those conclusions the State’s stipulation, we find that the alleged error was preserved for appeal.

In its brief before this Court the State cites Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978) and Garza v. State, 622 S.W.2d 85 (Tex.Cr.App.1980). However, reliance upon those cases is misplaced. Crocker v. State, supra, is distinguishable in that the Court simply stated that as a prerequisite for appellate review “the ground of error on appeal must comport with the objection raised at trial....” Id. @ 205. Specifically in that case, the defendant did not object to the questions directed to a witness for the State, thus, nothing was preserved for review.

Garza v. State, supra is also distinguishable. The defendant filed a formal bill of exception and tried to incorporate within it all of the motions filed by his co-defendant and all of the objections made by his co-defendant during the trial. On the State’s Motion for Rehearing the Court decided that since the bill of exception did not specifically refer to a motion to quash filed by his co-defendant then the alleged error in the indictment was not properly preserved for review. Obviously, Garzais concerned with the completeness of the bill, not the ruling of the trial court.

The Court of Appeals opinion cited Thompson v. State, 379 S.W.2d 664 (Tex.Crim.App.1964) for the proposition that the appellant was, absent a stipulation by the State that the appellant did have a good *275reputation, entitled to call the two additional witnesses during the guilt-innocence stage of the trial. It should be noted Thompson v. State, Id,., was concerned with the action of the trial court in refusing to permit the defendant to call several (9) additional reputation witnesses during the punishment stage of the trial. Thompson v. State, Id.,is therefore not directly in point. However, a resolution of this distinction by this Court must come in another case because the State’s Petition for Discretionary Review did not assert that as a basis for review. Therefore, since the question of harm is not before this Court we will defer to the Court of Appeals decision on this issue.

The judgment of the Court of Appeals is affirmed.

. The page in the statement of facts is headed "June 29, 1984". From a comparison of the trial court’s notes in the docket sheet with the statement of facts, it appears this date is incorrect, that the date of the proceedings recorded on that and subsequent pages is actually June 28, and that a day has "dropped out" of the record at IV-63. At that point the statement of facts fails to reflect that the jury separated for the night and reconvened the next morning to resume their deliberations.

. This is no longer the law. Rule 52(b), Rules of Appellate Procedure, effective September 1, 1986, to some extent changed Art. 36.20, V.A.C. C.P. Evidence that is rejected by the trial court is still preserved for appellate purposes “if the substance of the evidence is apparent from the context within which questions were asked,” Rule 52(b), Rules of Appellate Procedure (1986). Now, however, the court’s ruling on the offer must be shown on "a transcription of the reporter's notes_” Rule 52(b). See also: Rule 103, Tex.Rules of Cr.Evidence.

Citation profile

Relationships

How this case has been treated — in progress