Ward v. State

VOLLERS, Judge,

dissenting.

The majority reverses this cause on the basis of improper cross-examination of a character witness. I simply cannot agree.

First of all, the majority reaches the conclusion that Mrs. Ward was not a character witness for her husband. They reach this conclusion even though the appellant admits that his wife’s testimony put his reputation in issue. This conclusion is reached according to the majority because Mrs. Ward’s testimony focused upon appellant’s behavior before and after he met and became romantically involved with the deceased, in order to show that he had undergone a change after meeting the deceased. The majority distinguishes the present case from Childs v. State, 491 S.W.2d 907 (Tex.Cr.App.1973) because the testimony was directed at proving the appellant’s conduct before and after his involvement with the deceased. Such a distinction cannot be justified either legally or factually under this record.

The testimony set out in the majority opinion shows that appellant’s wife testified prior to his meeting the deceased he was good to his wife and children, he worked on a daily basis as a truck driver, he worked every day, he was not lazy, had never been a drinker, came home at night and was a good father to his children. Immediately after this testimony was elicited from appellant’s wife the following occurred:

“Q After he met Dorothy Gayden about three or four years ago did he change in any way?

A He started staying out later sometimes.”

After an objection for leading appellant’s counsel then asked Mrs. Ward:

“Q (By Mr. Watts) Mrs. Ward, were there any other changes that you noticed in Louis Ward’s condition after he met Dorothy Gayden?

A Sometimes he would be upset. Sometimes when I get a lot of phone calls and I tell him about it he say he didn’t know who was calling.”

An examination of the record indicates that this is the only testimony pertaining to any change in appellant’s conduct before and after his involvement with the deceased. The appellant testified that the deceased threatened to kill him when he did not divorce his wife and when he went to see her to tell her it was all over she pointed a gun at him and he killed her. At the close of Mrs. Ward’s testimony appellant’s counsel again established that appellant was still supporting his family, was still a good husband, worked regularly when he was dating the deceased, came home regularly, owns his own tractor and trailer truck and has been a good husband to his wife.

In light of this testimony I simply cannot conclude that appellant’s wife was not a character witness for appellant. As was *816 pointed out in Childs v. State, supra, you don't have to use “magic words” about a general reputation as a peaceful and law-abiding citizen in order to become a character witness.

The position of the majority that even if she was a character witness it was at most as to appellant’s reputation for being a good husband and father is no more pertinent than would have been a conclusion in Childs v. State, supra if the Court in that case had found that the appellant’s reputation for being a “good boy” was all that was put in issue. The majority tries to create a distinction without a difference.

Last, but certainly not least, an examination of the objections made by appellant’s counsel simply fails to reveal any objection which is sufficient to show the trial court that he is objecting because this is improper cross-examination of a character witness. The issue simply is not preserved for review.

For all of the reasons stated, I dissent.

DOUGLAS, J., joins.