# Ward v. State > Court of Criminal Appeals of Texas · January 9, 1980 · 591 S.W.2d 810 URL: https://www.frixlaw.com/law-library/cases/9684017 ## Case - **Full name:** Louis WARD, Jr., Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** January 9, 1980 - **Citations:** 591 S.W.2d 810; 1980 Tex. Crim. App. LEXIS 1032 - **Precedential status:** Published - **Opinion:** On rehearing by Odom - **Judges:** Roberts, Dally, Vollers, Odom, Davis, Douglas - **Cited by:** 45 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/9684017 ## Opinion text OPINION ON STATE’S MOTION FOR REHEARING ODOM, Judge. This is an appeal from a conviction for murder. On original submission the conviction was reversed because the State asked improper questions during its cross-examination of appellant’s wife. The State contended that the testimony given by appellant’s wife on direct examination made her a character witness subject to cross-examination by questions asking if she had heard of specific acts of misconduct inconsistent with that character. The position urged by appellant, and accepted by the Court, was that such “have you heard” questions must inquire as to acts that are inconsistent with the specific character trait as to which the witness testified. The rule from Brown v. State, 477 S.W.2d 617 (Tex.Cr.App.), was quoted: “The only requirement [for the subject matter of have you heard questions] is that the act be inconsistent with the character trait about which the witness has testified. See Pace v. State, 398 S.W.2d 123 (Tex.Cr.App.).” The Court held on original submission that the witness’ testimony did not make her a reputation witness, and, alternatively, even if she was a reputation witness, the questions asked by the State did not concern acts inconsistent with the character trait put in issue: “The testimony of the appellant’s wife was not geared towards a showing of good, lawful character or reputation, but was directed at proving the appellant’s conduct before and after his involvement with the deceased. See Odum v. State, 533 S.W.2d 1 (Tex.Cr.App.1975); Els v. State, 525 S.W.2d 11 (Tex.Cr.App.1975). This conduct was essential to the appellant’s claim that the deceased had threatened him and pointed a gun at him when he entered the deceased’s house on the day of the homicide. Thus, despite the appellant’s admission in his brief that the testimony of his wife put his reputation in issue, we conclude that the appellant’s wife was not a character witness for the appellant and that the questions propounded by the prosecutor were therefore improper. “However, even if the testimony of the appellant's wife can be construed as making her a character witness for the appellant, her testimony raised, at most, the appellant’s reputation for being a good husband and father. The prosecutor’s questions were directed to the appellant’s - reputation for illegal activity. The prosecutor’s questions therefore did not relate to acts inconsistent with the character traits the appellant’s wife testified about.” In its motion for rehearing the State attacks both holdings. 1 In its challenge to the second part of our holding on original *817 submission, the State argues, “The acts about which the State inquired are inconsistent with the character traits of kindness and sobriety about which Appellant’s wife testified.” Later in its motion, however, the State concedes, “The entire tenor of the wife’s testimony was geared toward persuading the jury that Appellant was a good husband, father and provider for the family.'' (Emphasis added.) The State does not explain how a misdemeanor conviction for unlawfully carrying a pistol is inconsistent with being a good husband, father, or provider for the family. We do not see how the acts related to the character trait raised, even if the wife were a reputation witness. We adhere to the second part of our holding on original submission. The act inquired about in the have you heard question must be inconsistent with the character trait testified to by the reputation witness. Brown v. State, supra; Lockhart v. State, 172 Tex.Cr.R. 209 , 355 S.W.2d 514 ; Villarriel v. State, 163 Tex.Cr.R. 654 , 295 S.W.2d 222 ; Kennedy v. State, 150 Tex.Cr.R. 215 , 200 S.W.2d 400 . This holding alone would require denying the motion for rehearing. In the other part of the State’s motion for rehearing, in which it challenges the first holding on original submission, the State argues, “The entire tenor of the wife’s testimony was geared toward persuading the jury to accept Appellant’s defense by proving his good character and law-abiding habits.” Because of the importance of this other issue in the case, upon which the judgment was reversed, we will also address the application of Childs v. State, 491 S.W.2d 907 (Tex.Cr.App.), and the question of whether appellant’s wife was a reputation witness subject to the pursued mode of cross-examination whatsoever. The core of the Childs rule is this paragraph: “True, appellant’s counsel did not use the ‘magic words,’ does your son have a general reputation of being a peaceable and law abiding citizen in the community in which he resides, in questioning the witness. However, an examination of the record clearly indicates that the entire tenor of the elder Childs’ testimony was geared toward persuading the jury to grant appellant probation by showing them his good character and law abiding habits. 1 Appellant may not have a witness testify about his good character traits but avoid ‘placing his reputation in evidence’ simply by not specifically asking whether appellant enjoyed a good reputation in the community.” The fallacy in the Childs rule is that it ignores the difference between character and reputation. Although it cites the Brown discussion of the rationale for have you heard questions, the Childs’ rule is inconsistent with that rationale. Here is the Brown discussion of that rationale: “The rationale behind the rule is that reputation is an opinion based on hearsay. The reputation witness states his opinion based on that which he has heard from others concerning the defendant. In order to test this opinion, the prosecution is allowed to determine whether the witness has heard (not whether he knows) of acts or reports which would be inconsistent with a good reputation. The theory is that if the witness is truly familiar with the reputation of the defendant, he will have also heard of adverse reports which are circulating in the community. This is consistent with the nature of reputation evidence, that is, an opinion based on hearsay. . “It should be kept in mind that the purpose of the cross-examination is not to discredit the person on whose behalf the witness is testifying, but rather, the purpose is to affect the weight of the witness’ testimony. Kennedy v. State, 150 Tex.Cr.R. 215 , 200 S.W.2d 400 (1947); Taliaferro v. State, 143 Tex.Cr.R. 243 , 158 S.W.2d 493 (1942); Thompson v. State, 138 Tex.Cr.R. 491 , 136 S.W.2d 840 (1940). *818 Thus, since reputation is based on hearsay, an examination as to whether the witness has heard hearsay inconsistent with his opinion is proper.” Since the purpose of a have you heard question is to test the witness who purports to be familiar with hearsay and rumors of the accused’s reputation, a witness who has not professed to be familiar with that reputation in the community could not logically be discredited by questions of whether he has heard other rumors of acts inconsistent with that reputation. Simply stated, there is no reasonable basis for asking have you heard questions of a witness who testifies to his personal opinion of someone’s character, as opposed to the reputation of that person’s character. Since appellant’s wife was not testifying to his reputation, no have you heard questions to test familiarity with that reputation should have been allowed at all. On the other hand, it is not proper to prove character by evidence of personal opinion or specific acts. Houghton v. State, 171 Tex.Cr.R. 191 , 345 S.W.2d 535 ; Lutz v. State, 146 Tex.Cr.R. 503 , 176 S.W.2d 317 ; Brown v. State, 92 Tex.Cr.R. 147 , 242 S.W. 218 ; Brownlee v. State, 13 Tex.App. 255 ; McCormick & Ray, Texas Law of Evidence, Sec. 1432. Yet, when such improper evidence is admitted, the State may not under the guise of rebuttal present additional improper evidence. Johnson v. State, 91 Tex. Cr.R. 582, 241 S.W. 484 (on motion for rehearing). Apart from these limitations on how character may be proven, evidence similar in appearance to improper proof of character may be admissible for other purposes, such as to show the defendant’s conduct, appearance or condition of mind at a particular time, or the relationship between the accused and the deceased, without subjecting the witness to have you heard questions on cross-examination. See, Odum v. State, 533 S.W.2d 1 (Tex.Cr.App.); Els v. State, 525 S.W.2d 11 (Tex.Cr.App.); Clark v. State, 500 S.W.2d 469 (Tex.Cr.App.); Hurt v. State, 480 S.W.2d 747 (Tex.Cr.App.); V.T.C.A., Penal Code Sec. 19.06. In this case, although some of the testimony of appellant’s wife had the appearance of improper opinion testimony of appellant’s character, it was apparently offered to show the effects and changes in his behavior associated with his relationship with the deceased, and in any event was not offered as testimony of his reputation in the community. Therefore, in no event did it authorize have you heard questions on cross-examination. Absent a showing that the witness was familiar with and testifying to the reputation in the community, such questions were without probative value on their only authorized purpose (i. e. to test sincerity and familiarity with that reputation), and could only serve the impermissible purpose of prejudicing the jury by showing rumors of inadmissible acts of misconduct by the accused. To the extent that Childs v. State, supra, authorized use of have you heard questions in the cross-examination of any witness who gave testimony that might be seen as reflecting upon character, even though no reputation testimony was given, that case was unsupported by precedent and by reason, and it is overruled. The State’s motion for rehearing is denied. . The State also argues other evidence of the same facts was admitted without objection. There was such other evidence only as to one of the three acts inquired about in the have you heard questions. “1 See Brown v. State, 477 S.W.2d 617 , for a discussion of the rationale of the rule which permits the State to ask a character witness about specific acts of misconduct of the accused.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684017. Public record. Not legal advice.