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Superseded by statute, as recognized in Jackson v. State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 ."), superseded by statute as stated in Jackson, 160 S.W.3d at 573
The opinion
TEAGUE, Judge,
dissenting.
Originally, this cause was submitted only to a panel of three members of this Court. 1 A majority of that panel rejected appellant’s eleventh ground of error, that the trial court had erred in permitting Ray Long, a long time Orange police officer, to testify at the punishment stage of his trial as a “bad” reputation witness for the prosecution and against appellant. Appellant asserted that because the State did not establish that Long was a qualified “bad” reputation witness, Long should not have been permitted to testify for the prosecution. The majority disagreed.
I dissented with opinion, stating therein why appellant was correct and why the majority of the panel’s holding that Ray Long, the State’s sole reputation witness, was established to be qualified to testify to appellant’s “bad” reputation was legally erroneous.
Today, the majority of this Court holds that Long should not have been permitted to testify as a “bad” reputation witness for the prosecution, because the State did not establish that he was qualified to so testify. To me, in light of what damage the majority panel opinion might have in the future caused our criminal jurisprudence system, the majority’s holding that Long should not have been permitted to testify, because the State did not establish that he was qualified to testify as a “bad” reputation witness for the prosecution, is indeed a breath of fresh air. In light of the majority’s holding, it is now not necessary for members of the bench and bar to mutilate their leading works on evidence, by tearing out the chapters therein on how a State’s “bad” reputation witness may be qualified, *315 which is what I believe that the majority of the panel’s opinion implicitly commanded.
Notwithstanding my agreement with the majority’s holding, that because the State did not establish that Long was qualified to testify as a “bad” reputation witness for the prosecution, he should not have been permitted to testify for the prosecution, but because I believe that a majority of this Court has implicitly now written a new test for harmless error, or has unintentionally or inadvertently ignored the old test, I am still compelled to dissent in this cause.
The majority opinion incorrectly holds that the error was harmless as to both guilt and punishment. In light of the record, which I have carefully read, and the test that formerly existed to make the determination whether erroneously admitted evidence or testimony is harmless, which test applies to both guilt and punishment, I cannot agree that in this instance the error was harmless beyond a reasonable doubt as to the punishment that was assessed by the jury.
The test for harmless error, which is not set out in the majority opinion, is not whether a conviction could have been had with the improper evidence or testimony, nor is it whether the punishment that was assessed would not have been assessed without the improper evidence or testimony. Instead, the test is whether there is a reasonable possibility that the erroneously admitted evidence or testimony might have contributed either to the conviction or to the punishment that was assessed. Garrett v. State, 632 S.W.2d 350, 354 (Tex.Cr. App.1982).
I agree with the majority that in this instance there is not a reasonable possibility that the error contributed to the jury’s finding appellant guilty. However, I am unable to agree with the majority that there is not a reasonable possibility that such error contributed to the jury’s decision to assess appellant’s punishment at eighty-five (85) years’ confinement in the penitentiary, which number of years comes perilously close to being the absolute maximum that the jury could have assessed appellant as his punishment. Emphasizing the negative, when the jury saw the positive, as the majority does in order to reach its conclusion that the error in this instance was harmless, although such methodology is helpful, I find in this instance that it is an unacceptable way of answering the question whether the error was harmless.
The record reflects that in the presence of the jury the prosecution established that Long was no ordinary “bad” reputation witness for the prosecution. Long testified that he had been employed by the Orange Police Department for over nine years and had been a patrol sergeant for approximately five years. Not only did Long occupy an important position in the City of Orange, he also testified that he lived in the same general community where appellant lived. Given these facts, is there not a reasonable possibility that Long’s erroneously admitted testimony contributed to the jury’s decision to assess appellant’s punishment at eighty-five (85) years’ confinement in the penitentiary? I believe so.
I find it rather interesting that Judge Clinton, the author of the majority opinion, just recently stated the following in Clemons v. State, 605 S.W.2d 567 (Tex.Cr.App.1980), 2 a unanimous panel opinion he authored for the Court: “Under the facts of this case the 25 year sentence assessed by the jury in this cause is not unusual, but that is not the question presented here. *316 The question is whether or not we can say that this evidence was harmless beyond a reasonable doubt given the number of years assessed by the jury.” (572). In that case, Judge Clinton found for a unanimous panel that the error was not harmless as to the punishment assessed.
In this instance, because of the punishment of eighty-five (85) years that was assessed, and in light of Long’s status in the community, as well as the fact that he lived in the same general community as did appellant, I cannot agree that the above question, whether the error was harmless, should be answered in the negative, and therefore must respectfully dissent to the majority’s holding that the error was harmless beyond a reasonable doubt as to the punishment that was assessed by the jury. If the error was not harmless in Clemons v. State, supra, how on earth is it harmless in this case?
. This Court has not had panels since the fall of 1981.
. The facts in Clemons v. State, supra, from the standpoint of the defendant in that cause, are egregious. The facts reflect that the defendant and two others, one of whom was her husband, at both gun and shotgun points, robbed an employee of the Austin Municipal Auditorium of his owner’s money and robbed him of his personal property. Acting upon instructions from her husband hijacker, the defendant shot the concessionaire in the back. Thereafter, thinking the concessionaire was dead, the trior fled. The defendant and her husband were arrested in Kansas City, where they had apparently gone to commit more armed robberies. But for a miracle, one or more of the arresting police officers would have been shot to death by the defendant. Your guess is as good as mine why this "rational” jury chose to mete out a mere twenty-five (25) years.