# Roberts v. State

> Texas Court of Appeals, 1st District (Houston) · December 2, 1993 · 866 S.W.2d 773

URL: https://www.frixlaw.com/law-library/cases/9762088

## Case

- **Full name:** Charles Reginald ROBERTS, Appellant, v. the STATE of Texas, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** December 2, 1993
- **Citations:** 866 S.W.2d 773; 1993 Tex. App. LEXIS 3206; 1993 WL 493603
- **Precedential status:** Published
- **Opinion:** Dissent by Cohen
- **Judges:** Hedges, Cohen, Mirabal
- **Cited by:** 27 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/9762088

## Opinion text

COHEN, Justice,
Dissenting.
I would reverse this case because “declaring the error harmless would encourage the State to repeat it with impunity.” Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989). In almost the first words he spoke in this case, the prosecutor violated the law by asking whether appellant had a reputation as a drug dealer. This occurred on the second page of the statements of facts. It was the prosecutor’s twelfth question to his first witness. The other questions asked the witness to state his name, age, employment, prior felony convictions, and whether he could identify appellant. Neither appellant or his counsel had yet spoken a word to any witness nor done anything to invite this question. Obviously, the prosecutor was determined to get this fact before the jury at the earliest possible moment. Appellant immediately stated three objections, and the judge overruled all three, thus putting the judicial seal of approval on the prosecutor’s question three times in front of the jury.
Could the prosecutor have believed this was a proper question? The Court of Criminal Appeals says no:
There is no better known rule than that the reputation of the defendant cannot be inquired into by the State unless the accused himself opens up the way.
Brown v. State, 605 S.W.2d 572, 574 (Tex.Crim.App. [Panel Op.] 1980); Smith v. State, 659 S.W.2d 427, 429 (Tex.Crim.App.1983). I would characterize this, in the words of the Court of Criminal Appeals, as “hornbook law” that “no reasonably competent prosecutor would violate.” Thompson v. State, 651 S.W.2d 785, 786, n. 3 (Tex.Crim.App.1983) (emphasis in original). This has been the law in Texas for more than a hundred years, and since 1986 has been codified as part of our statutory law. Tex.R.CRIM.Evid. 404. If the prosecutor does not know this rule, we should help him learn it before he jeopardizes other cases with the same error. Affirming this case is unlikely to do so.
If, on the other hand, the prosecutor knew this rule of law, of which none is “better known,” then we should be even faster to reverse this case. Bad faith is a more serious threat to the judicial process that mere incompetence because it is harder to cure. Affirming this case is even less likely to cure bad faith than it is to cure ignorance of this basic rule. In either case, “declaring the error harmless would encourage the State to repeat it with impunity.” Harris v. State, 790 S.W.2d at 587 .
In Smith , the court held that it is “reversible error to put the defendant’s reputation in issue before he has done so.” 659 S.W.2d at 429 . The court there held that the error was reversible without any inquiry into harm. The court stated its reason for reversing without discussing harm:
We can scarcely conceive of a question which in and of itself could be more hurtful to an accused than one calling for an answer which would put at issue his general reputation.
Id. (emphasis added). Thus, even if the evidence of guilt was strong, there would be good reason to reverse this case. We should not be that confident on this record, however.
Three witnesses saw appellant deliver cocaine. One was Donald Myles, a paid informant of 12 years standing with prior convictions for sexual assault and delivery of controlled substances. Myles was living at the Texas Department of Corrections at the time of trial, serving time for delivery of drugs. He actively participated in this case by receiving cocaine from appellant and handing it to Officer Rios. The delivery conviction for *780 which he was serving time occurred a few weeks after the date of the offense in this case.
Two police officers testified they saw appellant hand cocaine to Myles, who then handed it to Officer Rios. Upon delivery, Officer Rios gave appellant the fifty dollars, in addition to the fifty dollars he had paid him 25 minutes before upon placing his order. Officer Peaco watched the transaction from a distance. He saw appellant hand something to Myles, but could not see it was cocaine. Officer Peaco further testified he had appellant in sight constantly from the time appellant delivered the drugs to Rios until he was arrested, a period of one to five minutes. Even though appellant was watched continuously and was arrested almost immediately after receiving his second fifty dollar payment from Officer Rios, none of that money was recovered from him upon his arrest.
In jury argument, the State conceded that it would have had “a problem” if it had been forced to rely only on the testimony of Donald Myles. The prosecutor strongly urged the jury to convict appellant based upon the testimony of Officer Rios and, “to a lesser extent,” the testimony of Officer Peaco. Thus, the State’s position was that its case rose or fell based primarily on Officer Rios. Although his testimony and Officer Peaco’s was persuasive, there was some room in this case for a rational jury to have had a reasonable doubt, based upon the involvement of a dubious character like Myles and on the State’s failure to recover any money from appellant, even though he was arrested only minutes after receiving it and was in sight continuously during that time. Under these circumstances, I cannot say with confidence beyond a reasonable doubt that a rational jury could not have been influenced by the prosecutor’s question and by the judge’s three rulings, each of which informed the jury that reputation was a proper subject for questioning.
Given the prosecutor’s failure to understand, or unwillingness to follow, such an elementary rule of criminal law, I am confident that declaring this error harmless would encourage the State to repeat it with impunity. Ha rris v. State, 790 S.W.2d at 587 . Therefore, I would sustain point of error one, reverse the judgment, and remand the cause.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9762088. Public record. Not legal advice.