Mitchell v. State

ONION, Presiding Judge

(concurring).

I concur in the result of the majority’s opinion reluctantly because of the disposition of ground of error # 1.

Chief of Police of the City of Joshua Bill Waits, who was a material witness for the State at the guilt stage of the trial, was recalled by the State at the penalty stage of the trial to testify that the appellant’s reputation for being a peaceful and law-abiding citizen was “bad.” When the question was propounded to him, the appellant’s counsel asked to have the jury removed and developed in their absence that Waits had never heard of the appellant before the date of the offense and had not discussed his reputation with anyone. It appeared from his testimony in the absence of the jury that’ his reputation testimony was based on the details of the offense charged and on the “rap sheet” or police records supposedly those of the appellant received from the Fort Worth Police Department.

It was clear that Waits was not qualified as a reputation witness and, despite the fact that the appellant objected and called this to the court’s attention, the objection was overruled, and Waits was permitted to then testify for the first time in the presence of the jury that appellant’s general reputation in the community in which he lived for being a peaceful and law-abiding citizen was “bad.”

This was error and should not have been permitted, but I reluctantly agree that the error is harmless in view of the overwhelming evidence of guilt and circumstances surrounding the killing of the 17 year old service station attendant and the shooting of the 21 year old customer during the course of the robbery. The customer lived to testify and identify the appellant as the gunman who shot and killed the attendant and who subsequently shot the witness in the head.

The majority concludes that the error was harmless beyond a reasonable doubt *516 because Waits’ testimony was terse and he was followed by three other law enforcement witnesses who gave testimony, without objection, that appellant’s reputation was “bad.”

I would caution against interpreting the majority’s opinion as meaning that in any case the State is entitled to one free unqualified reputation witness provided there are other reputation witnesses to the same effect whose testimony is unchallenged. Each case must stand on its own bottom. For the State to call a well-known, respected and popular citizen or law enforcement officer as a reputation witness knowing he is not a qualified witness while hoping to render any error harmless by calling other witnesses who are qualified would, in my opinion, be bad faith.

For the reasons stated, I concur.