The opinion
DOUGLAS, Judge,
dissenting.
Appellant contends that a question to one of his reputation witnesses implied the commission of an extraneous offense. The record shows the following occurred during cross-examination of the witness at the punishment stage of the trial:
“Q. Have you heard that on September the 18th of 1973, that he robbed a woman by the name of Francis Tin-dall at the Globe Cleaners at 2403 North Haskell Avenue with a firearm?
U * * *
“MR. GAY: My objection is that it is an extraneous offense that is prejudicial. It is highly prejudicial and inflammatory, and the sole purpose of putting it before the jury is to create an innuendo Mr. Moffett has committed another robbery which he has not been tried for and has not been convicted of.”
There was no objection that the question was framed to make it a statement of fact that he committed the offense.
That part of the objection that the misconduct referred to was another robbery which “he had not been convicted of” is without merit. There is no requirement that reputation questions relate to final convictions. In McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975), the Court wrote:
“ ‘Have you heard’ questions, which confront a character witness with acts inconsistent with the reputation testified to, are not objectionable on the grounds that the conduct referred to did not result in a conviction. Partida v. State, Tex.Cr.App., 506 S.W.2d 209 ; Gaines v. State, Tex.Cr.App., 481 S.W.2d 835 .”
In Partida v. State, 506 S.W.2d 209 (Tex.Cr.App.1974), this Court wrote:
“Appellant’s only objection to the cross-examination of appellant’s character witness was based upon the alleged fact that the question did not relate to final convictions. Such an objection has no merit under Texas law. See Gaines v. State, Tex.Cr.App., 481 S.W.2d 835 ; Sanders v. State, Tex.Cr.App., 453 S.W.2d 162 . ...”
In Brown v. State, 477 S.W.2d 617 (Tex.Cr.App.1972), this Court set forth a method for cross-examining a reputation witness:
“The requirement in this State is that the question be phrased ‘have you heard’ that the defendant committed a certain act? If the question is phrased ‘do you know’ or if it is phrased in such a way as to imply that the act was actually committed, then the question is improper. If the witness is asked if he knows that a certain act was committed, and he answers that he does, then he has testified that the act was committed which would be improper. (Citations omitted).”
The purpose of such questions is to test the credibility of the witness’ testimony concerning the defendant’s reputation. Thus, since reputation is based on hearsay, the State may properly inquire whether the witness has heard hearsay inconsistent with his opinion. Brown v. State, supra. The majority does not distinguish the Brown case from the present case. The question taught in Brown to be proper was “. have you heard that the defendant committed a certain act?” That occurred in the present case.
In the context of cross-examination, it is not objectionable that such questions are leading. In Brown , the Court confronted the “risk inherent in the case of any leading question: Namely, that the jury will consider the content of the question as substantive evidence. Recognizing this risk, this Court, as discussed earlier, has restricted the form the question may take.” (Emphasis supplied).
*441 In the case at bar, the prosecutor properly framed his question in the “have you heard” manner.
This Court has sanctioned reputation questions on cross-examination which had the same thrust as the one in the instant case. In Brown , the prosecutor inquired if the witness had heard that defendant “had threatened to kill his wife,” and “had beaten his wife,” and “had been convicted of driving while intoxicated.” We found no error. Does the majority hold that the inclusion of the date in the question in the present case makes it objectionable?
In Childs v. State, 491 S.W.2d 907 (Tex.Cr.App.1973), we approved inquiries concerning whether the witness had heard that his son, defendant, “had been indicted for robbery and for possession of marihuana and was living with a prostitute who was also a heroin addict.”
In Carey v. State, 537 S.W.2d 757 (Tex.Cr.App.1976), this Court, by implication, approved a question which contained as much detailed information concerning the misconduct referred to as does the one in issue. There, the prosecutor propounded the following question to three of appellant’s reputation witnesses:
“Have you heard about an incident that happened one week before August 27, 1974, where he threatened another fireman with a pistol ?” (Emphasis supplied)
We concluded that the form of this question as addressed to the fourth witness was improper solely because it was an attempt to show through the witness that the incident did occur rather than by have you heard that he threatened a fireman with a pistol.
In Perry v. State, 164 Tex.Cr.R. 122 , 297 S.W.2d 187 (1957), the mother of the defendant was asked if she had heard that he was charged with robbery in May of 1953. The Court held, “The question did not violate the rule which prohibits asking a character witness if he knows of specific acts of misconduct of an accused.”
Webber v. State, 472 S.W.2d 136 (Tex.Cr.App.1971), is distinguishable. In Webber , this Court held that the question “have you heard that Mr. Webber was expelled from Baylor University, when he was caught shoplifting,” (emphasis supplied) constituted reversible error because it was framed in such a way that it asserted as e matter of fact that defendant had been caught shoplifting. The question was improper because it referred to two separate events, one of which was not prefaced by “have you heard.”
In the instant case, the witness had previously testified as to appellant’s good reputation. The State’s question was prefaced with the phrase “have you heard” and, therefore, did not imply that the act had actually been committed. No error is shown.
In Pitcock v. State, 324 S.W.2d 855 (Tex.Cr.App.1952), the question complained of was a statement that he was in trouble in Taylor County. It was held bad because it made an assertion of fact. The question was: “Have you heard them discuss the trouble that he was in in 1951 concerning a DWI conviction in Taylor County, Texas ?” (Emphasis supplied). The question in that case was held bad because it asserted a fact that he was in trouble.
In the present case the question does not make an assertion of fact. It is like the questions that have been held to be a proper way to test the knowledge of a witness about the reputation of a defendant.
Wharton v. State, 248 S.W.2d 739 (Tex.Cr.App.1952), concerned a question of a reputation witness that the defendant was under indictment for rape “that occurred eight days after this one.” That is definitely an assertion of fact and not a proper have you heard question and is, therefore, distinguished from the question in the present case.
There is no showing in the present case that the question was asked in bad faith. To hold that such a question.is improper would be contrary to all the previous decisions by the Court. The majority should explain the difference between this and the cases cited above which have been affirmed. What questions may be asked of a reputation witness? One cannot tell.
*442 No error has been shown. The judgment should be affirmed.
ONION, P. J., joins in this dissent.