# Pemberton v. State > Court of Criminal Appeals of Texas · July 16, 1980 · 601 S.W.2d 333 URL: https://www.frixlaw.com/law-library/cases/9645211 ## Case - **Full name:** Donald PEMBERTON, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** July 16, 1980 - **Citations:** 601 S.W.2d 333; 1980 Tex. Crim. App. LEXIS 1294 - **Precedential status:** Published - **Opinion:** Dissent by Clinton - **Judges:** Onion, Douglas, Phillips, Clinton, Odom, Roberts, Davis - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9645211 ## Opinion text CLINTON, Judge, dissenting. The issue that now divides the Court was, in the collective judgment of members of the unanimous panel opinion, properly raised and correctly decided. In a stout motion for rehearing the State urges it be set aside. I adhere to the analysis, construction and disposition of the matter, and in doing so am fortified by a subsequent unanimous panel opinion written by Judge W. C. Davis in Maxwell v. State, 595 S.W.2d 126 (Tex.Cr.App.1980) which successfully withstood an equally insistent motion for rehearing by the State that was denied by the Court March 26, 1980. Rather than characterize or give shorthand renditions of the objectionable exchanges in each case, I simply set them out side-by-side, on the left the instant case and Maxwell on the right: *339 Q: Now, I’m going to ask you a question — I guess you and I both know the answer to this — have you heard that Donald Pemberton in fact is absent without leave from the Army? 1 Q: All right. Mr. Loving have you heard that? A: I did not hear that until I heard it from you yesterday, sir. Q: That’s what I’m saying, you have heard it and I am the one who told you? A: From you, uh-huh. Q: So that makes it true, doesn’t it? A: (No answer) Q: If it were shown to you that in fact he was absent without leave from the Army, would that cause you to change your opinion about him? * * »3 A: None whatsoever, sir . . . Q: Have you ever heard of that [making threats to prospective witnesses]? A: I haven’t heard of all of it. Q: Well, you have heard of some of it? You have heard of some of it? A: Some of it, but it doesn’t change my opinion. Q: Even though he had made these threats it still doesn’t change your opinion? A: No, sir, it does not. Q: You think he is entitled to threaten witnesses, do you? A: It does not change my opinion how Q: I am asking you to answer my question ‘yes’ or ‘no.’ Do you think he is entitled to threaten witnesses? A: No, sir. *340 Taken in context, I am satisfied that every reasonably alert juror hearing the exchange in the instant case, just as in Maxwell , would believe that the prosecuting attorney was, indeed, asserting as truth that appellant then and there was absent without leave from the Army. Accordingly, the questioning was improper, just as the panel correctly perceived, and reversal should follow. Yet, the real vice in the opinion for the Court on rehearing is that it approves a new form of testing the reputation witness that avoids the strictures years of jurisprudence have placed on “have you heard” questions. Thus, the majority would have it that an “if it were shown” question is not objectionable and may be asked to prove credibility of the witness as to his opinion of the reputation of the accused. It is specious to claim that such an inquiry put to a witness in order to effect a change in his opinion as to reputation does not suggest the truth of the matter stated. The preliminary phrase “if it were shown” assumes the truth of the matter that follows by telling the witness, in effect, it is true and the questioner can prove it. Certainly almost any witness and every juror would understand it that way and take the text of the assertion as true. To the dangerous doctrine about to be espoused to the bench and the bar, in the minds of many of whom the “have you heard” question is already an archaic abomination, I must protest. The State’s motion for rehearing should be denied. Because it is not, I respectfully dissent. ROBERTS, PHILLIPS and W. C. DAVIS, JJ., join. . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated. 2. Practically identical phrasing was condemned in Sisson v. State, 561 S.W.2d 197, 199 (Tex.Cr. App.1978): “Have you heard that on August the 7th, 1976, this Defendant with Randy Walker, Kay Miller and Donna Rana did in fact, smoke marihuana together, have you heard that?” (Emphasis in original) All agree in the instant case that the content of the “AWOL” question is “highly prejudicial” and tended to deprive appellant of “the fair trial that he was entitled to . . .see note 1 in opinion on original submission and note 1 of opinion on State’s motion for rehearing. As a matter of law, then, the “AWOL” question is erroneous both in form and substance. When put to Downey, appellant had objected, first outside and then in the presence of the jury, that the question is not “a character trait for a peaceful and law-abiding citizen” — a good objection in light of the teachings of Pace and Gaines, see notes 1 in the opinions, supra, that the trial court overruled. When Loving was later asked substantially the same question earlier put to Downey, appellant asked for a “running objection to this question that I made earlier,” the trial court sought clarification “to know what kind of running objection I am granting,” appellant offered to have the court reporter read back “the exact wording,” but the trial court satisfied itself that the running objection went to the “have you heard” question that referred to “absent without leave,” and granted a running objection to that question. 3.An effort to object was thwarted by the witness answering out, as shown. During the fol *340 lowing colloquy, however, appellant asked that the jury be instructed to disregard both the question and “any answer they might have heard.” In response the State differentiated between its first “have you heard” question and its next “if it were shown” question; the trial court remarked, “Well, that’s the way I basically understood your question,” and denied relief. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9645211. Public record. Not legal advice.