This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

not error to admit (Rule 405. Methods of Proving Character)

• It was not error to admit at punishment stage, testimony of def’s sister-in-law regarding def’s reputation for sexually inappropriate behavior, over contention she was not qualified as a character witness because her testimony was based on a single incident she observed between her sister and def. It was not abuse of discretion to conclude X was familiar with the underlying facts or information upon which her opinion was based and it did not rest purely on the single incident between def and his wife, where outside the presence of the jury, witness testified that she had known def for an extended period of time and that they had even lived in the same house for awhile; she personally observed, and her family members had discussed, an incident in which def had grabbed his wife, witness’s sister, from behind and rubbed himself against her backside; that this occurred in an open hallway during the day with the children in the house; and witness’s son and def’s son told her that def was “sleeping with [his daughter].” Also, def had been arrested for repeatedly sexually assaulting witness’s eight-year-old son. Ibarra v State, 11 S.W.3d 189 (Oct. 20, 1999)

not error to exclude (Rule 405. Methods of Proving Character)

• It was not abuse of discretion to exclude evid regarding murder victim; character evid is ordinarily inadmissible under Rule 404(a), and was not admissible under 404(a)(2) because it was not in required form under 405(a) of reputation or opinion testimony. (Witness denied that she had applied to have her grandson (murder victim) committed to Harris County Psychiatric Hospital, although she admitted requesting that he receive psychiatric treatment; witness acknowledged that her grandson was committed to the Harris County Psychiatric Hospital and that he had been on medication for several years; witness acknowledged that she had sought temporary health services for her grandson; witness acknowledged that a defense exhibit reflected that her grandson had been suspended for three days for hitting a girl at school.) Martinez v State, 17 S.W.3d 677 (May 17, 2000)

• It was not abuse of discretion to exclude evid regarding murder victim, as opinion testimony of under 405(a), where the question might arguably have encompassed opinion testimony, but the answer did not, as the witness stated she did not know (witness did not know whether her grandson (murder victim) was committed because he would become physically aggressive with other people). Martinez v State, 17 S.W.3d 677 (May 17, 2000)

• It was not abuse of discretion to exclude evid regarding murder victim that arguably involved an opinion about character but that opinion, expressed in a legal pleading, was hearsay (witness denied that she had stated in a sworn pleading that her grandson (murder victim) had hurt people and would do it again because he would not take his medication). Martinez v State, 17 S.W.3d 677 (May 17, 2000)

have-you-heard questions: presenting issue (Rule 405. Methods of Proving Character)

• Nothing preserved for review on claim allowing the prosecutor to ask a defense punishment witness, over objection, "did you know" questions about specific criminal acts which had not been proven before the jury violated his Sixth Amendment right to confront the witnesses against him and his right to due process under the Fourteenth Amendment, and that this error affected his substantial rights: in particular, his "substantial right to confront the witnesses against him" and "the substantial right to have the State ... meet its burden of proof on future dangerousness." His trial objections were too late and were on different grounds. [Even if preserved, no error presented.] Wilson v State (March 20, 2002, No. 73,747)

have-you-heard questions: rules: purpose (Rule 405. Methods of Proving Character)

• A witness who testifies to a defendant's good character may be cross-examined to test the witness's awareness of relevant "specific instances of conduct." Character may be proved by either opinion or reputation testimony. While reputation witnesses are generally asked "have you heard" questions, opinion witnesses are asked "did you know" questions. Although Rule 405 does not distinguish between opinion and reputation testimony on cross-examination, the better practice is to follow the traditional method of impeaching opinion witnesses with "did you know" questions and reputation witnesses with "have you heard" questions. Since the reputation witness purportedly bases his or her testimony on hearsay in the community, his knowledge of the defendant's reputation in the community can best be impeached by questions of whether he has heard about specific instances of conduct inconsistent with that reputation. Conversely, the witness who testifies to the defendant's character on the basis of personal knowledge is most effectively challenged by "did you know" questions regarding conduct inconsistent with the traits to which he has offered his opinion and not about rumors affecting the subject's character. Wilson v State (March 20, 2002, No. 73,747)

• The right of a party to cross-examine a character witness on specific instances of conduct is subject to certain limitations. First, the incidents inquired about must be relevant to the character traits at issue. Second, the alleged bad act must have a basis in fact. Before the questions are asked, the foundation for inquiring into the specific instances of conduct should be laid outside the jury's presence so that the judge will have an opportunity to rule on the propriety of asking them. Specific instances should not, however, be proven before the jury. Wilson v State (March 20, 2002, No. 73,747)

have-you-heard questions: not error to ask (Rule 405. Methods of Proving Character)

• It was not error to allow state to ask a defense punishment witness "did you know" questions about specific criminal acts which had not been proven before jury, where def called witness to testify as a character witness. On direct examination, he testified that he was surprised to learn that def had just been convicted of capital murder and had a prior criminal history; he also testified that during the times that he was with def, def exhibited exceptional behavior; and when asked by def's attorney whether in spite of all the things he was asked by state during cross-examination regarding specific instances of def's conduct def was still the kind of person with whom he wished to associate, he replied, "Geno is far above in my mind what I have heard going on here." Because witness testified as to his opinion of def, state was entitled to test his knowledge about specific instances of conduct involving def by asking a series of "did you know questions." No merit to contention that it was improper for the trial court to allow state to ask witness "did you know" questions about specific criminal acts over objection since the acts had not been proven before the jury. State was asking the questions for the purpose of testing witness' familiarity with def. As such, not only was state not required to prove to the jury that the acts actually occurred, but it would have been improper for state to attempt to do so. Wilson v State (March 20, 2002, No. 73,747)