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Dixon v State2 S.W.3d 263September 15, 1999 Nos. 21-98 & 22-98 Majority opinion by Presiding Judge McCormick Links to other opinions in this case: Concurring opinion by Judge Price Opinions on original submission: Majority opinion by Judge Baird Dissenting opinion by Judge Womack IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. 021-98 and 022-98 ALONZO D. DIXON, Appellant v. THE STATE OF TEXAS ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS TARRANT COUNTY McCormick, P.J., delivered the opinion of the Court in which Mansfield, Keller, Holland, Womack and Keasler, JJ., joined; Price, J., filed a concurring opinion in which Meyers and Johnson, JJ., joined. OPINION ON STATES MOTION FOR REHEARING The State has asserted five grounds in a motion for rehearing requesting the Court to reconsider its December 16, 1998, opinion on original submission.1 We granted rehearing on grounds one through three. We will sustain grounds one and two in the States motion for rehearing, dismiss ground three in the States motion for rehearing, overrule ground for review one in appellants discretionary review petition, dismiss as improvidently granted ground for review two in appellants discretionary review petition, and affirm the judgment of the Court of Appeals. The procedural history and facts of this case are set out in the opinion of the Court of Appeals. Dixon v. State, 955 S.W.2d 898, 899 (Tex.App.--Fort Worth 1997).2 The prosecution sought to impeach defense witness Pelfrey with two pending felony indictments. Id. Appellant objected under Tex.R.Crim.Evid. 608(b)3 claiming that only final felony convictions may be used to impeach testimony.4 The trial court permitted the impeachment under Tex.R.Crim.Evid. 612(b) to show bias and motive. Dixon, 955 S.W.2d at 899. On direct appeal, appellant claimed the impeachment was improper under Rule 612(b). The Court of Appeals decided appellants Rule 608(b) trial objection failed to preserve his Rule 612(b) claim for appeal. Dixon, 955 S.W.2d at 200. We exercised our discretionary authority to review this decision (ground for review one). The Court of Appeals also decided the impeachment was proper under Rule 612(b). Dixon, 955 S.W.2d at 200. We exercised our discretionary authority to review this decision (ground for review two). The Courts December 16, 1998, opinion on original submission sustained both grounds for review, reversed the judgment of the Court of Appeals, and remanded the case there for a harm analysis. The Courts opinion on original submission decided appellants trial objection under Rule 608(b) preserved a Rule 608(b) claim for appeal.5 The Courts opinion on original submission then decided the impeachment was improper under Rule 612(b) because the prosecution never questioned Pelfrey regarding his possible bias or motive. The Courts opinion on original submission then decided the impeachment was also improper under Rule 608(b) -- a proposition with which everyone including the trial court did not dispute. In this way the Courts opinion on original submission managed to avoid addressing the preservation issue presented in ground for review one of appellants discretionary review petition. Of greater concern is some language in the Courts opinion on original submission which suggests an inconsistency exists between Rule 608(b) and Rule 612(b) when it comes to impeaching a witness with specific instances of conduct. This language might lead some within the bench and bar to conclude erroneously that when specific instances of conduct are used for impeachment purposes, the specific provisions of Rule 608(b) control over the more general provisions of Rule 612(b) even if the specific instances of conduct are otherwise admissible under Rule 612(b) to show bias and motive.6 The opinion of the Court of Appeals also contains some language saying Rule 612(b) is an exception to Rule 608(b). Dixon, 955 S.W.2d at 900. While Tex.R.Crim.Evid. 608 and Rule 612(b) deal with the same general subject matter of impeaching witnesses, they nevertheless are distinct rules which serve different purposes. Tex.R.Crim.Evid. 608(a) says how to impeach a witnesss general character for truthfulness. Rule 608(b) expressly bars impeaching a witnesss general character for truthfulness with specific acts of conduct other than conviction of crime as provided in Tex.R.Crim.Evid. 609. Rule 612(b) permits impeaching a witness by proof of circumstances or statements showing the witnesss bias or interest in a particular case. Unlike Rule 608(b), Rule 612(b) does not expressly bar the use of specific instances of conduct to show bias or interest.
So Rule 612(b) is different from Rule 608. Rule 608 addresses a witnesss general character for truthfulness. Rule 612(b) addresses a witnesss trustworthiness in the particular case because of some bias or interest.
Therefore, our opinion on original submission incorrectly suggested Rule 608(b) controls over Rule 612(b) when a party seeks to impeach a witness with specific instances of conduct to show bias or interest and the Court of Appeals also incorrectly suggested Rule 612(b) is an exception to Rule 608(b). These are distinct rules which serve different purposes.9 It also is noteworthy the Courts opinion on original submission relied on a Texas Evidence treatise which the opinion on original submission apparently considered to be persuasive, learned and authoritative. Cathleen C. Herasimchuck, Texas Rules of Evidence Handbook, Section 613(b), at 611-12 (3d ed. 1998). After our opinion on original submission was handed down, the author of this treatise filed an amicus curiae letter brief stating this treatise was never intended to convey that Rule 612 is somehow a `general rule of impeachment while [Rule 608 was] more `specific. This letter brief also says the treatise states precisely the opposite of what our opinion on original submission decided. Consistent with the foregoing discussion, the letter brief states:
In this case appellant objected to the prosecutions cross- examination of Pelfrey under Rule 608(b) immediately before Pelfrey was called to the stand. Dixon, 955 S.W.2d at 899. The basis of appellants Rule 608(b) objection was that only final felony convictions may be used to impeach testimony. The trial court permitted the cross-examination under Rule 612(b) to show bias and motive which effectively was a ruling sustaining appellants Rule 608(b) objection. Dixon, 955 S.W.2d at 899. Appellant made no further objection except for another general objection during the prosecutions cross-examination of Pelfrey which the trial court overruled for the reasons stated previously. Dixon, 955 S.W.2d at 899. On appeal appellant claimed the trial court erred to permit the cross-examination under Rule 612(b). Dixon, 955 S.W.2d at 899. On this record appellant failed to preserve the Rule 612(b) issue for appeal because his appellate complaint does not comport with his trial objection. See Broxton v. State, 909 S.W.2d 912, 918 (Tex.Cr.App. 1995) (to preserve error for appellate review, complaint on appeal must comport with objection at trial, and an objection stating one legal theory may not be used to support a different legal theory on appeal); Tex.R.App.Proc. 52(a) (to preserve complaint for appellate review, party must, among other things, present an objection stating the specific grounds for the ruling he desires). Based on the foregoing discussion about the distinct and different purposes served by Rule 608(b) and Rule 612(b), appellants Rule 608(b) objection that only final felony convictions may be used to impeach testimony failed to articulate any kind of an objection under Rule 612(b). See Lankston v. State, 827 S.W.2d 907, 909 (Tex.Cr.App. 1992) (when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost). In addition, the trial court effectively sustained appellants Rule 608(b) objection when it initially permitted the prosecutions cross-examination under Rule 612(b) to show bias and motive and then later overruled appellants general objection again for the reasons stated previously. Dixon, 955 S.W.2d at 899. In other words, the trial court, recognizing the distinct and different purposes served by Rule 608(b) and Rule 612(b), agreed with appellant that the prosecutions cross-examination of Pelfrey was impermissible under Rule 608(b). After this, appellant pursued no other objection or complaint to an adverse ruling. See Rule 52(a) (to preserve complaint for appellate review, party must, among other things, obtain a ruling on his objection); cf. Cockrell v. State, 933 S.W.2d 73, 88-89 (Tex.Cr.App. 1996), cert. denied, 117 S.Ct. 1442 (1997) (to preserve appellate complaint about jury argument, party must pursue objection to an adverse ruling). On this record, appellant received all the relief he specifically requested when the trial court effectively sustained his Rule 608(b) objection. Cf. Cockrell, 933 S.W.2d at 88-89. The judgments of the Court of Appeals are affirmed. McCormick, Presiding Judge (Delivered September 15, 1999) 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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