Opinion

Wagner v. State

  • 687 S.W.2d 303
  • 1984 Tex. Crim. App. LEXIS 586
Court
Court of Criminal Appeals of Texas
Filed
Feb 1, 1984
Status
Published
Author
Teague
On the bench
Campbell, Clinton, Davis, McCORMICK, Onion, Teague
Cited by
91 cases
Authority
More cited than 7.4%

Superseded by statute, as recognized in Jackson v. State

holding that because the jury was charged in the disjunctive, the appellant could be convicted simply because he knowingly committed the act

How later courts described this case

  • holding that because the jury was charged in the disjunctive, the appellant could be convicted simply because he knowingly committed the act
  • holding trial court did not err by refusing to admit evidence of insanity at trial when defendant failed to comply with statute requiring notice of intent to present insanity defense
  • holding that because the jury was charged in the conjunctive, the jury had to find that the appellant acted intentionally
  • error to allow reputation testimony based on allegation of one specific act

Written by the judges who cited it.

Later courts went against this

  • Superseded by statute, as recognized in Jackson v. State

    687 S.W.2d 303, 312 (Tex. Crim. App. 1984) (op. on reh'g) ("Lack of normal impulse control is simply not a circumstancerecognized by the Legislatureto diminish the criminal responsibility of an accused . .. ."), superseded by statute as stated in Jackson, 160 S.W.3d at 573
    Court of Criminal Appeals of TexasApr 13, 2005by statutemedium confidenceRead it

The opinion

TEAGUE, Judge

dissenting.

In his eleventh ground of error, which the majority of the panel overrules, appellant asserts that the trial court erred in permitting Ray Long, an Orange police officer, to testify at the punishment stage of the trial that in his opinion appellant had a bad reputation in the general community in which he resided for being a peaceable and law-abiding citizen.

Implicitly, the majority finds that Long was qualified to give his opinion that appellant had a bad reputation in the general community in which he lived for being a peaceable and law-abiding citizen. I totally disagree with this finding.

Long testified outside of the presence of the jury that he had formed his opinion solely from a criminal investigation he had conducted, wherein Charles Gans, the present husband of the daughter of the deceased, who was formerly appellant’s betrothed, had complained to him that he and his wife had been threatened by appellant approximately two months before trial.

It is elementary hornbook law that before a witness is entitled to give an opinion that an accused’s general reputation for having a particular character trait in the community in which he lives or resides is bad, the witness must have actually discussed the subject of the accused’s reputation with someone in the community and that person must have told the witness that the accused’s general reputation for having that particular character trait in the general community was bad. Jackson v. State, 628 S.W.2d 446, 450, n. 2 (Tex.Cr.App. 1982). In this instance, Long never testified that Gans told him appellant’s reputation for being a peaceable and law-abiding citizen in the general community in which he lived was bad. Long was not a qualified reputation witness and should not have been permitted to testify.

Contrary to the majority’s authority of Crawford v. State, 480 S.W.2d 724 (Tex.Cr.App.1972), in this cause appellant’s counsel did establish on voir dire that Long was unqualified to testify concerning appellant’s bad reputation.

Perhaps, however, the majority has read elementary law books on the subject but has not yet read what it has quoted from the record on page 8 of its opinion, especially the last question and answer.

McCormick, Ray, Wigmore, and all the other greats who have expounded on the subject, or their present day publishers, are implicitly warned by the majority: Tear out of your books on evidence the chapter on how a bad reputation witness is qualified.

Finding that the majority is clearly and totally in error, I respectfully dissent.

Before ONION, P.J., and McCORMICK, CAMPBELL and CLINTON, JJ.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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