Sheldon Wayne Oku v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00039-CR

Sheldon Wayne Oku, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT

NO. CR97-055, HONORABLE CHARLES RAMSAY, JUDGE PRESIDING

Appellant Sheldon Wayne Oku appeals from his conviction for the offense of

aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02 (a)(2) (West 1994).

The jury assessed appellant's punishment at imprisonment for fifteen years and a fine of $5,000.

Appellant asserts that the State was improperly allowed to impeach a defense

witness and that a juror who served was disqualified for service as a matter of law. We will

overrule appellant's points of error and affirm the judgment of the trial court.

Appellant was charged with intentionally, knowingly, and recklessly causing bodily

injury to his step-daughter by detonating an explosive device that was alleged to be a deadly

weapon. Appellant served in Vietnam and was a demolitions expert familiar with explosive

devices. He had made and for some time had possessed a grenade. Appellant and his wife were

having marital difficulties, and she intended to get a divorce. Appellant was depressed and

considering suicide. During an argument, appellant threatened his wife with the grenade. She,

her daughter, and their son escaped from the house. While they were running on the driveway,

the grenade exploded. As a result of the explosion, appellant's hand was blown off and his wife

and daughter were injured.

In his second point of error, appellant complains that the trial court erred in

allowing the State to impeach a defense witness by asking "have you heard" questions over

appellant's timely objection. More specifically, appellant argues that the witness's volunteered

remark did not place in issue appellant's reputation for being a peaceable, law abiding citizen.

On the other hand, the State contends on appeal that the witness's statement did place in issue

appellant's reputation for "kindness and peaceableness." At trial, the State argued that the

witness's testimony placed appellant's reputation for being "peaceable and law abiding" in issue.

The controversy is about a defense witness's testimony at the guilt-innocence phase

of the trial. She testified on direct examination:

Q. Did Sheldon tell you what was wrong?

A. Yes, he told me that his wife had left him and that he wanted to commit

suicide. And, of course, I was devastated, but because he'd always been a

very kind, kind person who had always gone out of his way to help people on

the campus -- and so we talked about it and he told me that she had left and

taken the children and belongings and everything and so I said --

The State's cross-examination follows:

(Proceedings at the bench:)

MR. WALDRIP: She answered a question in response to defense counsel that he was a very kind and gentle person to everybody on campus, and there are two

instances that I'm aware of that I would like to ask her about just in regard to

his reputation. Basically, I think that opens the door to questions on

reputation for whether or not he's peaceable and law-abiding.

THE COURT: You may ask those questions.

* * * *

MR. FRIESENHAHN: Judge, we would object to that. (1)

THE COURT: You've opened the door. She said it.

(Proceedings in open court:)

By Mr. Waldrip:

Q. Now, you've mentioned that Mr. Oku is very -- And I don't want to put

words in your mouth, so just correct me --

A. That's okay.

Q. -- if I'm wrong, okay? -- that's he's a very kind and gentle man to every man

that came in the printing shop and on the Trinity campus?

A. Yes.

Q. And that was basically the extent that you knew him or that you saw him; is

that correct?

A. Yes.

* * * *

Q. Okay. But what you knew of Mr. Oku was his reputation on campus and in

that community and your opinion of him to be a kind and gentle person?

A. Yes.

Q. Were you aware or had you heard that in June or July of '96 that Mr. Oku had

taken Ms. Oku to the ground and held a dumbbell over her head and brought

it to the floor to scare her?

A. No, I did not hear that.

Q. Okay. And were you also aware or had you heard that the night before that

she did move out, approximately a week before Thanksgiving, that she did not

feel safe to sleep because of some threats that he had made, including holding

a mag light, a black big mag light flashlight over her head and threatened to

hit her with it? Were you aware of that situation?

A. He did tell me about that. That's not what he said happened.

Q. Okay.

A. He told me about that.

Q. Okay. But you weren't aware that it occurred as I explained it?

A. No, I was not.

Q. Okay. If it were true, as I've explained those two situations, would that

change your opinion of Mr. Oku's reputation?

A. No.

MR. WALDRIP: Okay. Pass the witness.

We must decide whether the witness's non-responsive, volunteered statement that

appellant was kind and helpful to people on the campus placed appellant's reputation for being a

peaceable and law abiding citizen in issue. If appellant's reputation were placed in issue, the State

could test the witness's knowledge of appellant's reputation in the community by asking "have you

heard" questions in good faith. (2) See Hedicke v. State , 779 S.W.2d 837, 842 (Tex. Crim. App.

1989); Rutledge v. State , 749 S.W.2d 50, 53 (Tex. Crim. App. 1988); Self v. State , 513 S.W.2d

832, 838-39 (Tex. Crim. App. 1974); Brown v. State , 477 S.W.2d 617, 620 (Tex. Crim. App.

1972).

In a number of cases, similar testimony was found insufficient to place a

defendant's reputation in issue so as to allow cross-examination with "have you heard" questions.

See, e.g., Rutledge , 749 S.W.2d at 51 (Tex. Crim. App. 1988) (witness testified defendant was

impeccable, never drank, didn't curse, and was just a nice person); Stephens v. State , 660 S.W.2d

85, 86-87 (Tex. Crim. App. 1983) (wife of defendant testified her husband loved her family,

supported family, held a steady job, and participated on a track team, basketball team, and

community cleanup committee); Nixon v. State , 653 S.W.2d 443, 444 (Tex. Crim. App. 1983)

(defendant's supervisor testified he was hard worker, ideal employee, and "a very kind guy" who

got along with everyone and often volunteered to help others); Smith v. State , 763 S.W.2d 836,

840 (Tex. App.--Dallas 1988, pet ref'd) (witness testified "I have never known him [defendant]

to be in any kind of trouble"); Powell v. State , 663 S.W.2d 465, 466-67 (Tex. App.--Houston [1st

dist.] 1983, no pet.) (witness testified defendant was "nice person" who didn't create problems

around apartment complex).

We conclude that the witness's testimony in this case did not place appellant's

reputation for being a peaceable law abiding citizen in issue. Therefore, the State should not have

been allowed to ask the witness "have you heard" questions.

In its brief, the State points out that before asking the "have you heard" questions,

"the prosecutor gave the witness an opportunity to clarify whether she was referring to appellant's

reputation or just her opinion. [The witness] affirmed that she was speaking of both his reputation

on campus and her opinion of him when she referred to appellant as a kind person who helps

others on campus." The State implies that its questions on cross-examination, allowing the

witness to "clarify" her testimony, gave the State the right to ask "have you heard" questions.

The State is wrong because "[t]he State cannot place the accused's character in issue by its own

cross-examination and then justify impeachment by 'have you heard' questions based on the

testimony elicited on cross-examination." Livingston v. State , 589 S.W.2d 395, 400 (Tex. Crim.

App. 1979); see also Els v. State , 525 S.W.2d 11, 13-16 (Tex. Crim. App. 1975); Childers v.

State , 241 S.W. 1029, 1032-33 (Tex. Crim. App. 1922); Smith , 763 S.W.2d at 843 .

Although the State should not have been allowed to ask "have you heard"

questions, we must determine from the review of the record whether the error in asking the

questions requires reversal of the judgment. The State argues that, even if we find error, the error

was harmless. Other than constitutional error, any error, defect, irregularity, or variance that

does not affect the substantial rights of a defendant must be disregarded. See Tex. R. App. P.

44.2(b). Later in the trial, after the "have you heard" questions had been asked, appellant

testified in his own defense. He testified that he loved his wife and did not intend to harm her.

In view of appellant's testimony, to rebut his testimony on lack of intent to injure, he could have

been cross-examined about the subject of both "have you heard" questions. His testimony did

relate to one of the incidents. On direct examination, appellant referred to the dumbbell incident

that was the subject of one of the "have you heard" questions. On cross-examination, appellant

admitted to the occurrence of the "dumbbell incident." We hold that, in the context of the record,

the asking of the "have you heard" questions did not affect the substantial rights of appellant and

therefore the error was harmless. Appellant's second point of error is overruled.

In his first point of error, appellant asserts that the judgment must be reversed

because one of the jurors who participated in determining appellant's guilt and punishment was

not a citizen of Comal County and was therefore disqualified to serve as a juror as a matter of

law.

It is undisputed that one of the jurors was not a citizen of Comal County. This was

not discovered until after the trial, and the jury's verdict had been received. Appellant relies upon

Mayo v. State , 971 S.W.2d 464 (Tex. App.--Fort Worth 1998, pet. granted) and argues that it is

directly in point. However, since this case was submitted, the Second Court of Appeals' judgment

in Mayo has been reversed. See Mayo v. State , Nos. 1010-98 and 1011-98 (Tex. Crim. App.

Sept. 15, 1999). The Court of Criminal Appeals rejected the court of appeals' reasoning and held

that: "[T]he requirement that a juror be a county citizen is not an absolute requirement that

cannot be waived." Id. at p. 8. Just as in Mayo , the record in this case shows that appellant did

not challenge the juror on the ground that he was not a citizen of Comal County at the time of

trial. Thus, appellant waived his right to challenge the juror about his residency on appeal.

Accord Gaona v. State , 733 S.W.2d 611, 617-18 (Tex. App.--Corpus Christi 1987, pet. ref'd);

Matthias v. State , 695 S.W.2d 736, 740 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd).

Appellant, anticipating the possible overruling of the Mayo decision, urges that the

unqualified juror's service on the jury that convicted him was so harmful as to require reversal

of the judgment. A juror's disqualification for not being a citizen of the county where he serves

is not an absolute disqualification. See Tex. Code Crim. Proc. Ann. arts. 35.19, 44.46 (West

1989 & Supp. 1999). When an absolutely disqualified juror serves, if that disqualification is not

brought to the attention of the trial court until after the verdict is entered, a defendant must show

"significant harm" resulted from the juror's service before the judgment will be reversed. See

id. art 44.46(2). In this case, the juror had moved across the street that divided the counties and

did not know that his new residence was not in Comal County. He did not intentionally deceive

the court or the parties. Appellant makes an additional complaint that the juror failed to disclose

that he had previously been charged with a controlled substance offense. The juror testified about

the controlled substance charge at the motion for new trial: "I had an attorney. One day I

showed up at his office and he said that it was dropped or something like that. He told me I could

go home and not worry about it." The record fails to show any other evidence relating to the

alleged controlled-substance offense. In this case where the juror was not absolutely disqualified,

appellant would logically be required to meet or exceed the "significant harm" test applicable

when an absolutely disqualified juror serves. We hold that appellant has failed to show that he

suffered "significant harm" because of the service of the juror who was not a citizen of Comal

County.

A defendant's conviction alone does not constitute "significant harm" within the

meaning of article 44.46. See Read v. State , 965 S.W.2d 74, 77 (Tex. App.--Austin 1998, no

pet.); Hernandez v. State , 952 S.W.2d 59, 71 (Tex. App.--Austin 1997, pet. granted), vacated on

other grounds , 957 S.W.2d 851 (Tex. Crim. App. 1998). We hold that appellant has failed to

show that he suffered "significant harm" because of the service of the juror who was not a citizen

of Comal County. Appellant's first point of error is overruled.

The judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices Jones, B. A. Smith and Dally *

Affirmed

Filed: October 7, 1999

Do Not Publish

* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment.

See Tex. Gov't Code Ann. § 74.003 (b) (West 1998).

1. The State makes no claim that the issue presented was not preserved for appellate

review. In the context of the record, it appears that the grounds for appellant's trial objection

were clear and understood by the trial court and the State. We conclude that the alleged error was

properly preserved for our review.

2. The methods of proving character by reputation or opinion are now specified by the

rules of evidence. See Tex. R. Evid. 405. "Rule 405 controls how the character of a person

other than a witness is to be proven when such evidence is admissible." 1 Steven Goode, Olin

Guy Wellborn & M. Michael Sharlot, Guide to the Rules of Evidence: Civil and Criminal , § 405,

pp. 199-200 (Texas Practice 2d ed. 1993). Also, Rule 405 makes one significant change in past

practice regarding the use of opinion testimony. See id. p. 201. Where formerly reputation

evidence was the only permissible technique for proof of character, a proponent will now be

permitted also to offer opinion evidence. See id. When a witness has testified to a defendant's

reputation in the community, that witness's credibility may be tested on cross-examination by

"have you heard" questions relating to that reputation if the questions asked are based in good

faith.

ssible overruling of the Mayo decision, urges that the

unqualified juror's service on the jury that convicted him was so harmful as to require reversal

of the judgment. A juror's disqualification for not being a citizen of the county where he serves

is not an absolute disqualification. See Tex. Code Crim. Proc. Ann. arts. 35.19, 44.46 (West

1989 & Supp. 1999). When an absolutely disqualified juror serves, if that disqualification is not

brought to the attention of the trial court until after the verdict is entered, a defendant must show

"significant harm" resulted from the juror's service before the judgment will be reversed. See

id. art 44.46(2). In this case, the juror had moved across the street that divided the counties and

did not know that his new residence was not in Comal County. He did not intentionally deceive

the court or the parties. Appellant makes an additional complaint that the juror failed to disclose

that he had previously been charged with a controlled substance offense. The juror testified about

the controlled substance charge at the motion for new trial: "I had an attorney. One day I

showed up at his office and he said that it was dropped or something like that. He told me I could

go home and not worry about it." The record fails to show any other evidence relating to the

alleged controlled-substance offense. In this case where the juror was not absolutely disqualified,

appellant would logically be required to meet or exceed the "significant harm" test applicable

when an absolutely disqualified juror serves. We hold that appellant has failed to show that he

suffered "significant harm" because of the service of the juror who was not a citizen of Comal

County.

A defendant's conviction alone does not constitute "significant harm" within the

meaning of article 44.46. See Read v. State , 965 S.W.2d 74, 77 (Tex. App.--Austin 1998, no

pet.); Hernandez v. State , 952 S.W.2d 59, 71 (Tex. App.--Austin 1997, pet. granted), vacated on

other grounds , 957 S.W.2d 851 (Tex. Crim. App. 1998). We hold that appellant has failed to

show that he suffered "significant harm" because of the service of the juror who was not a citizen

of Comal County. Appellant's first point of error is overruled.

The judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices Jones, B. A. Smith and Dally *

Affirmed

Filed: October 7, 1999

Do Not Publish

* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment.

See Tex. Gov't Code Ann. § 74.003 (b) (West 1998).

1. The State makes no claim that the issue presented was not preserved for appellate

review. In the context of the record, it appears that the grounds for appellant's trial objection

were clear and understood by the trial court and the State. We conclude that the alleged error was

properly preserved for our review.

2. The methods of proving character by reputation or opinion are now specified by the

rules of evidence. See Tex. R. Evid. 405. "Rule 405 controls how the character of a person

other than a witness is to be proven when such evidence is admissible." 1 Steven Goode, Olin

Guy Wellborn & M. Michae