# 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/9684018 ## 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 Douglas - **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/9684018 ## Opinion text ON MOTION FOR REHEARING DOUGLAS, Judge, dissenting. The majority denies the State’s motion for leave to file a motion for rehearing. The objections made at the trial are not the same as the contentions on appeal. See the majority opinion on original submission. The matter is not properly before us for review. On original submission it held that the testimony by appellant’s wife that he was good to her and his children, worked daily, had never been a drinker, came home at night, did not make her a reputation or character witness. The majority states that the testimony by appellant’s wife on direct examination was concerned merely with the "behavior of appellant before and after the appellant became romantically involved with the deceased” and did not make her a character or reputation witness. What new *819 rule of law is this that permits one to prove character for a limited period of time yet the witness does not become a character witness? This case is contrary to Childs v. State, 491 S.W.2d 907 (Tex.Cr.App.1973), as noted by the dissenting opinions on original submission. In Childs , the proof that the accused had been a good boy since he had been home was for a limited period. The majority noted that Childs asked for probation and would leave the impression that appellant did not. The appellant in the present case made an application for probation. He wanted to show that he was a good man so that he could get probation regardless of what else he wanted to show. In the Childs case, the father of the defendant was asked by defense counsel: “. . . And has his conduct been good since he has been there while he has been there at home?” He answered: “Really has.” The Court wrote: “. . . 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 Court did not err in permitting the cross-examination.” The Court held that it was proper for the prosecutor to determine whether or not the witness had heard of acts inconsistent with Childs’ good reputation. The Childs opinion was well reasoned and it was unanimous. There was much more detail in proving character in the present case than in the Childs case. It makes no difference at what time the witness testifies that a defendant has been .a good man, the issue of character or reputation is raised. When a witness testifies that a defendant is a good man, this is testimony of character. It makes no difference that the wife’s testimony was that there was a slight change in the appellant after he met the deceased. She testified that he was a good husband and a good father and had never been a drinker. This was the kind of testimony that is offered in most cases where probation is sought to make a good impression before the jury. Character is distinct from reputation, which is merely evidence of character. See McCormick and Ray, Texas Law of Evidence, Section 1324. When one testifies that another is a good man, this is testimony of good character. This is proved ordinarily by proof of good reputation. When one so testifies, he has, before the opinion by the majority in this case, been subject to cross-examination by questions if the witness had heard of acts on the part of a defendant inconsistent with good reputation. Now, according to the opinion of the majority, one may have witnesses testify that accused is a saint, and the State cannot test the knowledge of the witnesses and find out upon what he has based his testimony. This has not been the rule before and should not be the rule now. In short, if counsel does not ask about the word “reputation” in proving that an accused is a good man, then a false impression will be left with the jury. The new rule, as of today, is that one may prove character by a witness but that witness is not a character witness if such testimony covers a limited period. There has never been such a rule and it should not be the rule now. Trial judges should be able to rely upon past decisions of this Court and not be reversed on some sort of tenuous reasoning. The majority has to overrule the Childs case, supra, to reach its erroneous result. The holding today prevents the asking of have you heard questions where specific acts are admitted to show traits of good character of a defendant. Will the majority hold that the State may prove specific acts of misconduct of a defendant to rebut a false impression left before the jury? Following the rule to its logical conclusion, the State should be allowed to ask a,witness who has testified to specific examples of good character traits of a defendant if he or she knows of certain specific acts of bad conduct to rebut that testimony. *820 Trial judges will no doubt tend to limit a defendant to proof of general reputation and deny proof of specific acts because of the majority opinion. The motion should be granted and the judgment should be affirmed. OPINION ON MOTION TO WITHDRAW THE PRIOR OPINIONS AND ABATE THE APPEAL TOM G. DAVIS, Judge. It has now been made known to this Court by proper motion by the State, accompanied by a duly certified death certificate, that appellant died on April 7, 1979, while the State’s Motion for Rehearing was pending in this Court, but before the mandate of this Court issued. Accordingly, the mandate will not be issued in this case and the appeal is abated. The State’s motion to withdraw the prior opinions is denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684018. Public record. Not legal advice.