1. Need Help ASAP! Character Evidence in Trial

Partner and I in trial. Client is charged with manslaughter for recklessly causing a death in operation of a ten-wheeler. Judge is prohibiting testimony about the defendant's character for safety and being a conscientious truck driver. If you have a case handy, please respond, re: offering good character evidence as to conscientious character of the driver by former employers.

David Moore

2. RE: Need Help ASAP! Character Evidence in Trial

His propensity for safety is not general character evidence. It's pertinent character- trait evidence. A character-trait is pertinent if it is a trait involved in the offense charged or in a defense raised. See Spector v. State, 746 S.W.2d 946, 950 (Tex. App. Austin 1988, pet. ref.), and Stitt v. State, 102 S.W.3d 845, 849 (Tex. App. Texarkana 2003, pet. ref.)

Michael Mowla

3. RE: Need Help ASAP! Character Evidence in Trial

In In re G.M.P., 909 S.W.2d 198, 207-08 (Tex. App.???Houston [14th Dist.] 1995, no writ, the court said: 3. Exclusion of Reputation Testimony In his fourth point of error, appellant contends the trial court erred in excluding character testimony concerning his reputation. Appellant attempted to present testimony by the mother of one of his friends that he had a reputation in the community for the "safe and moral treatment of children." The State objected, and the trial court sustained the objection, refusing to allow appellant to present ??[**23]?? the reputation testimony to the jury. However, the trial court did allow appellant to present the testimony in a bill of exception. Out of the presence of the jury, the witness testified that she was familiar with appellant's reputation in the community for treating children safely and morally, that he had a good reputation, and that his reputation made it improbable that he sexually assaulted a ten-year-old boy. HN10 Generally, character evidence is not admissible to show that a person acted in conformity with that character on a particular occasion. Tex. R. Civ. Evid. 404(a). However, the rules of civil evidence allow a person accused of conduct involving moral turpitude to present evidence of pertinent character trait. Rule 404(a)(1); State Bar v. Evans, 774 S.W.2d 656, 658 (Tex. 1989). Such evidence may be offered in the form of reputation testimony. Tex. R. Civ. Evid. 405(a). Thus, the initial question before us is two-fold: (1) is the evidence that of a pertinent character trait, and (2) is the charged offense conduct involving moral turpitude?

The issue in this case was whether appellant had sexually assaulted a child. Therefore, the character trait the defense sought to??[**24]?? introduce was pertinent to the offense charged. See Evans, 774 S.W.2d at 658 (holding testimony in State Bar disciplinary proceeding that an attorney overbilled clients was admissible under Rule 404(a)(1) as rebuttal testimony to attorney's offer of pertinent character evidence of honesty and integrity); Thomas v. State, 669 S.W.2d 420, 423- 24 (Tex. App.—Houston [1st Dist.] 1984, pet. ref'd) (holding evidence that defendant had a good reputation in the community for being a moral person, and for the safe and proper treatment of young children was admissible to show the improbability that the defendant raped his step-daughter); Skelton v. State, 655 S.W.2d 302, 304 (Tex. App.—Tyler 1983, pet. ref'd as untimely filed) (holding defendant accused of sexual abuse of a child had the right to present reputation testimony to show it was improbable he committed the act charged).

The next issue we must decide, however, is whether sexual assault of a child is conduct involving moral turpitude. In determining what involves moral turpitude, "there appear to be no clear cut criteria." Robertson v. State, 685 S.W.2d 488, 492 (Tex. App.—Fort Worth 1985, no pet.) (discussing which misdemeanors??[**25]?? involve moral turpitude: theft, forgery, and prostitution). Generally, the civil cases discussing moral turpitude involve attorney disciplinary actions, because the Texas Rules of Disciplinary Procedure define ??[*208]?? a "serious crime" requiring disciplinary action as "any felony involving moral turpitude." Tex. R. Disciplinary P. 1.06(U) (1992). These cases state that the question of whether a particular crime involves moral turpitude is a question of law. In re Humphreys, 880 S.W.2d 402, 407 (Tex.), cert. denied, ___ U.S. ___, 115 S. Ct. 427, 130 L. Ed. 2d 340 (1994); State Bar v. Heard, 603 S.W.2d 829, 835 (Tex. 1980). A general definition of moral turpitude has emerged in the attorney disciplinary cases which we feel may be applied to the case before us today.

HN11 Crimes involving moral turpitude are those that involve dishonesty, fraud, deceit, misrepresentation, or deliberate violence. Duncan v. Board of Disciplinary Appeals, 898 S.W.2d 759, 761 (Tex. 1995) (emphasis added). Furthermore, moral turpitude can be construed as including offenses concerning matters of personal morality. Humphreys, 880 S.W.2d at 407 (quoting American Bar Association Model Rules of Professional Conduct 8.4??[**26]?? comment (HN12 1992)). Moral turpitude has also been defined as:

1) anything done knowingly contrary to justice, honesty, principle, or good morals.

2) an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men or to society in general.

3) something immoral in itself, regardless of whether it is punishable by law. The doing of the act itself, and not its prohibition by statute, fixes the moral turpitude.

4) immoral conduct is that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community.

Turton v. State Bar, 775 S.W.2d 712, 716 (Tex. App.—San Antonio 1989, writ denied) (citing Muniz v. State, 575 S.W.2d 408, 411 (Tex. Civ. App.—Corpus Christi 1978, writ ref'd n.r.e)) (emphasis added).

Clearly, sexual assault of a child encompasses each of these definitions. It is a crime of deliberate violence; concerns personal morality; is against good morals; is an act of baseness, vileness, and depravity; is immoral in itself; and shows a moral indifference to the opinion of respectable members of a community. It can be characterized??[**27]?? as "universally morally reprehensible." Turton, 775 S.W.2d at 717.

We find that because he was charged with the offense of sexual assault of a child, appellant was accused of conduct involving moral turpitude. Therefore, appellant was entitled to present to the jury evidence of a pertinent character trait to show that it was improbable that he committed the crime. The trial court erred in excluding the testimony of appellant's reputation witness.

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Consider what State can legitimately cross-examine defense's reputation witness about Defendant's prior misconduct related to the same traits put in issue by the nature of the indicted offense on trial.??

See Ethridge v. State, No. 12-09-00190-CR, 2012 Tex. App. LEXIS 3110, at *46-50 (Tex. App.???Tyler Apr. 18, 2012, no pet.) (mem. op., not designated for publication), where the court said:

Reputation Evidence In his eighth issue, Appellant argues that "the trial court reversibly erred in allowing the prosecution to cross-examine [a] defense witness as a reputation witness with '[h]ave you heard' questions about [Appellant's] prior convictions during the guilt/innocence phase of [t]rial. . . ."

Standard of Review and Applicable Law HN28 Evidence of a pertinent character trait is admissible to rebut evidence of a character trait offered by the accused. Tex. R. Evid. 404(a). ??[*47]??If the defendant elicits testimony to prove his own reputation through another witness, the State may, on cross examination, inquire into relevant specific instances of misconduct. Tex. R. Evid. 405. Thus, a witness who testifies to another's good character may be cross examined to test the witness's awareness of relevant specific instances of conduct. Tex. R. Evid. 405(a); Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002). However, this right of cross examination has two limitations: (1) the prior instances must be relevant to a character trait at issue; and (2) the prior instances must have a basis in fact. Wilson, 71 S.W.3d at 350. This right of cross examination is also limited by Rule 403. See Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999) (evidence admissible under Rule 404 may still be excluded under Rule 403); see also McCoy v. State, 10 S.W.3d 50, 53 (Tex. App.—Amarillo 1999, no pet.) ("Rule 405 merely delineates the manner by which admissible character or character trait evidence may be proven."). HN29 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 trial ??[*48]??court will have an opportunity to rule on the propriety of asking them. Wilson, 71 S.W.3d at 351. Specific instances should not, however, be proven before the jury. Id. The traditional method of accomplishing this is to ask opinion witnesses "did you know" questions and reputation witnesses "have you heard" questions." Id. at 350 n.4.

Discussion At trial, the defense called Cody Keen, an inmate in the county jail. His testimony was offered to rebut Paul Davis's testimony concerning Appellant's involvement in the crimes at issue. During direct examination, Keen testified that he was familiar with Appellant because they bunked together while in the county jail. Defense counsel asked him, "Can you briefly give us your assessment of his character?" Keen replied, "He seems like a pretty honest man to me." Counsel then asked, "Does he come across like someone who would be involved in just a really stupid, stupid crime?" Keen replied, "No." On cross examination, the State asked Keen whether he had heard that Appellant had been convicted of various offenses, including burglary of a habitation, aggravated robbery, felony theft, and burglary of a vehicle, among other offenses. Appellant contends it was error to allow such questions because (1) the prosecutor added the word "convicted" prior to identifying each crime, and (2) the crimes were too remote under Texas Rule of Evidence 609. As we have already stated, since defense counsel asked Keen about Appellant's character for truthfulness and whether he was the type of person to commit the crimes, the State was allowed to rebut this testimony by asking about specific instances of conduct. Id. at 350. Appellant does not contend that the prior instances are irrelevant to a character trait at issue or that they lack a basis in fact. Indeed, the alleged prior instances share many similarities to the crimes for which Appellant is charged: dishonesty, deception, and theft. Appellant has cited no legitimate authority, and HN30 we are aware of none, that restricts the State from asking whether the witness had heard that the defendant was convicted of a particular crime. On the contrary, the court of criminal appeals approved a question asking whether the reputation witness knew of a particular conviction, although ??[*50]??the addition of the word "conviction" was not an issue in the case. See Evans v. State, 757 S.W.2d 759, 760, 762 n.2 (Tex. Crim. App. 1988) (per curiam) (impliedly approving the following form of the question: "Do you have knowledge or did you know that he had been convicted of murder here in Tarrant County?"). Moreover, Rule 609(b) of the Texas Rules of Evidence does not apply, as the specific instance of misconduct at issue is not that of Keen, the witness, but of the person for whose reputation he vouched???Appellant. HN31 Rule 609 governs attempts to prove actual convictions of the witness testifying at the time, and not specific instances of conduct of the defendant asked as "have you heard" questions to rebut an attempt to bolster the defendant's character through a third-party witness. See Tex. R. Evid. 609. Appellant's eighth issue is overruled.

Joseph A. Connors III

• 4. RE: Need Help ASAP! Character Evidence in Trial

See also Texas Rules of Evidence 406 Habit/Routine Practice

If they are claiming he failed to do something he has a habit or routine practice of doing normally.

Bart C. Craytor

Note: A Voice article from November 2000 by Justice Charles Baird, “Did You Know? Have You Heard? Character Evidence Can Be a Powerful Tool for the Defense,” is somewhat relevant to the subject: www.voiceforthedefenseonline.com/story/november-2000-issue