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Dixon v State2 S.W.3d 263December 16, 1998 Nos. 21-98 and 22-98 Majority opinion by Judge Baird Links to other opinions in this case: Dissenting opinion by Judge Womack Opinions on rehearing: Majority opinion by Presiding Judge McCormick Concurring opinion by Judge Price IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. 021-98 & 022-98 ALONZO D. DIXON, Appellant v. THE STATE OF TEXAS ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW FROM THE COURT OF APPEALS TARRANT COUNTY Baird, J. delivered the opinion of the Court, joined by Overstreet, Meyers, Mansfield, Price, and Holland, JJ. Womack, J. delivered a dissenting opinion, joined by McCormick , P.J. and Keller, J. OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW Appellant was convicted of incest, indecency with a child, and aggravated sexual assault and sentenced to 25 years on each of the first two offenses and 45 years on the latter. Tex. Penal Code Ann. §§ 25.02, 21.11, 22.021. The Court of Appeals affirmed. Dixon v. State, 923 S.W.2d 161 (Tex.App.--Fort Worth 1996)(Dixon I). This Court vacated that judgment and remanded the case to the Court of Appeals. Dixon v. State, 928 S.W.2d 564 (Tex.Cr.App. 1996)(Dixon II). On remand, the Court of Appeals again affirmed. Dixon v. State, 955 S.W.2d 898 (Tex.App.--Fort Worth 1997)(Dixon III). We granted review of that decision to determine if the Court of Appeals erred in holding that a defense witness could be properly impeached by evidence of a pending felony, and whether that error, if any, was preserved for review.1 I. A. During his case-in chief, appellant called Elmer Pelfrey as a witness. At the time of his testimony, Pelfrey was under indictment for two felonies pending in the same court as the instant case. Before Pelfrey testified, his attorney, Bradford Shaw, presented the following motion:
The trial judge denied Pelfreys request based upon bias and motive. When the State attempted to question Pelfrey regarding his two pending charges, appellant objected and the trial judge stated, [f]or the reasons stated previously, I will overrule the objection. B. The Court of Appeals originally held appellant had failed to properly preserve error by his general objection.
Dixon I, 923 S.W.2d at 164-645. On discretionary review, we considered the preservation issue. Dixon II, 928 S.W.2d at 564. In a unanimous decision, we held:
Id., 928 S.W.2d at 564-565. The judgment of the Court of Appeals was vacated and the cause remanded to that court for disposition consistent with our opinion. Id., 928 S.W.2d at 565. On remand, (Dixon III), the Court of Appeals again determined appellant had failed to preserve error. The remand decision was based on the ruling of the trial court when appellants objection was made. The Court held:
Id., 955 S.W.2d at 900. We begin our review by determining whether appellant preserved error, if any. II. To preserve error for appellate review, the complaining party must make a timely, specific objection. Armstrong v. State, 718 S.W.2d 686, 699 (Tex.Cr.App.1985). The objection must be made at the earliest possible opportunity. Marini v. State, 593 S.W.2d 709 (Tex.Cr.App.1980). The complaining party must obtain an adverse ruling from the trial court. DeRusse v. State, 579 S.W.2d 224 (Tex.Cr.App.1979). Finally, the point of error on appeal must correspond to the objection made at trial. Thomas v. State, 723 S.W.2d 696 (Tex.Cr.App.1986). In Dixon II, we determined appellants objection to the States cross-examination of Pelfrey regarding his pending charges adopted the objection lodged by Pelfreys attorney. Dixon II, 928 S.W.2d at 564-65. Appellant specifically objected to:
Appellants objections were based on two distinct rules of evidence. First, by requesting the court not to go into the fact Pelfrey had been charged with two felonies, Tex. R. Crim. Evid. 608(b), wherein specific instances of conduct may not be inquired into on cross-examination, was implicated.2 The rule provides:
Tex. R. Crim. Evid. 608(b). Second, because Pelfrey had not been convicted, Tex. R. Crim. Evid. 609, which provides only for impeachment by evidence of conviction of a crime, was implicated. From the record, it is clear the trial judge was sufficiently apprised that these were appellants objections. See, Dixon II, 928 S.W.2d at 564 (quoting Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977), and Lankston v. State, 827 S.W.2d 907 (Tex.Cr.App.1992)(a general objection will preserve error if its grounds are apparent to the trial judge)(emphasis supplied)). Appellants objections were timely and the trial judge overruled the objections, thus under Tex. R. App. P. 52, those objections were sufficient to preserve this issue for appellate review.3 III. Having determined the error was preserved for appellate review, we now address the merits of the issue. The State argues the Tex. R. Crim. Evid. 612 trumps Tex. R. Crim. Evid. 608 or 609.4 The Court of Appeals, relying on two of their own decisions, held the plain language of Rule 612(b) creates an exception to Rule 608(b) where the evidence shows bias or a motive for the witness to testify untruthfully. Dixon III, 955 S.W.2d at 900. However, neither case is on point. The first case, Sparks v. State, 943 S.W.2d 513 (Tex.App.--Fort Worth 1997), dealt with the propriety of the States cross- examination of an expert witness with prior testimony from another trial. And, Thomas v. State, 897 S.W.2d 539 (Tex.App.--Fort Worth 1995), was a case of sexual assault where the defendant claimed the sex was consensual. The Court of Appeals reversed the conviction because the trial judge erred in prohibiting cross examination of the complainant regarding the jealous nature of her boyfriend. While the Court of Appeals correctly determined this was an appropriate area of cross-examination, Thomas has absolutely nothing to do with the instant case. The Rules of Evidence provide specific and general directives and are meant to work in conformity. Should an inconsistency arise, it should be removed by reasonable construction.5 Simply stated, general rules are not meant to supercede specific rules. Under Tex. R. Crim. Evid. 612, the parties are allowed to question a witness regarding a bias or interest. This is a general rule because
Cathleen C. Herasimchuk, Texas Rules of Evidence Handbook § 613(b), p. 611-612 (3d ed. 1998).6 In contrast, Rules 608(b) is a specific rule relating to specific instances of conduct. Similarly, Rule 609 is a specific rule which provides an exception to Rule 608(b) and provides for impeachment by evidence of a criminal conviction. In the instant case, the trial judge overruled appellants objection under Tex. R. Crim. Evid. 608(b) and 609 under the guise of allowing impeachment under Tex. R. Crim. Evid. 612, to show motive or bias. However, the States cross-examination was merely to bring out evidence of the pending charges; the State never questioned Pelfrey regarding his possible bias or motive.7 Consequently the cross-examination was specifically prohibited by Rules 608(b) and 609. Accordingly, we hold the Court of Appeals erred in holding the trial judge did not err in permitting the State to cross-examine Pelfry as to his pending charges. To hold otherwise would eviscerate Rules 608(b) and 609. The judgment of the Court of Appeals is reversed and the case remanded to that Court for a harm analysis. Tex. R. App. P. 44.2. BAIRD, Judge Delivered: December 16, 1998 1 The granted grounds for review are specifically: 1. Did the Court of Appeals reversibly err in holding that the error raised on appeal was waived by trial counsel.3 Tex. R. App. P. 52 (West 1993) provided: Tex. R. App. P. 52 is now Tex. R. App. P. 33 and substantially similar. 4 Tex. R. Crim. Evid. 612 is now Tex. R. Evid. 613 under the unified Texas Rules of Evidence promulgated by the Texas Supreme Court and this Court, effective March 1, 1998. The rules are identical. 5 Tex. R. Crim. Evid. 101(c) provides: Hierarchical governance shall be in the following order: the Constitution of the United States, those federal statutes which control states under the Supremacy Clause, the Constitution of Texas, the Code of Criminal Procedure and the Penal Code, civil statutes, these rules, the common law of England. Where possible, inconsistency is to be removed by reasonable construction. (emphasis supplied). 6 Additionally, a good faith basis for the attempt to impeach regarding bias or interest is required. John William Strong et al., McCormick on Evidence, § 39 (4th ed. 1992). 7 The relevant cross examination regarding the pending charges is as follows: Q: Mr. Pelfrey, you presently have two cases pending, dont you? 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. This file was derived from the text posted on the web site of the Texas Court of Criminal Appeals, by the automatic operation of conversion software, and may contain errors. Baker's Legal Pages are a public service of Freelance Enterprises, Inc.
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