IN THE COURT OF CRIMINAL APPEALS OF TEXAS
GENO CAPOLETTI WILSON,
THE STATE OF TEXAS
ON DIRECT APPEAL
Meyers, J., delivered the unanimous opinion of the
FROM HARRIS COUNTY
O P I N I O N
Appellant was convicted in December 1999 of capital murder. Tex.
Pen. Code Ann. § 19.03(a) (Vernon 1994). Pursuant to the jury's
answers to the special issues set forth in Texas Code of
Criminal Procedure Article 37.071 sections 2(b) and 2(e), the
trial judge sentenced appellant to death. Art. 37.071 § 2(g).
appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant
raises three points of error but does not challenge the
sufficiency of the evidence at either stage of trial. Thus, only
those facts essential to answer appellant's points will be set
out. We affirm.
In all of his points of error, appellant
complains that the trial court erred in 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.
Appellant contends this violated his right to
confront the witnesses against him as granted by the Sixth
Amendment to the United States Constitution and his right to due
process under the Fourteenth Amendment. Appellant also asserts
that this error affected his substantial rights. In particular,
appellant complains that the error affected 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."
The record reveals that during the punishment phase of trial,
appellant called Reverend Rogers Delaney to testify about his
interactions with appellant and about appellant's character in
On cross-examination, the prosecutor established that Delaney
had been personally involved in appellant's life and had
attempted to ensure that appellant learn right from wrong and
become a productive member of society. The prosecutor then asked
Delaney a series of questions designed to determine his
familiarity with appellant's past violent behavior.
responded that he was not aware of any of the incidents to which
the prosecutor referred. Appellant did not object to any of
The prosecutor next asked Delaney if he knew that
appellant had driven a stolen car to the scene where he
committed the capital murder. After Delaney answered this
question and the prosecutor began asking a new question, defense
counsel asked to approach the bench and objected:
[DEFENSE COUNSEL:] This might be a delayed
objection, but I'd like to object to any reference to a stolen
car to the capital murder case. There's been no evidence -
THE COURT: I understand that. I understand that.
But there's nothing wrong with him asking this witness if he's
heard about it.
[DEFENSE COUNSEL:] But the manner in which the
questions is [sic] phrased presupposes that the witness - not
this witness obviously has not heard anything about the
testimony [sic]. Neither has the jury. It's sort of like asking,
"When did you stop beating your wife," which presupposes that
you ever beat your wife. And there's been no evidence -
The trial court overruled the objection.
On re-cross, the prosecutor asked Delaney a
number of questions designed to determine his familiarity with
appellant's behavior while in jail. Specifically, the prosecutor
asked Delaney whether he knew that while in jail, appellant had
been charged with extortion in November of 1998. Appellant
objected to this question:
[DEFENSE COUNSEL:] We're way outside the scope
now of either cross-examination - direct, cross, redirect, we're
way outside. This was not an alleged criminal act. And this
witness obviously would have no way of having any information
relative to that. He's already testified that -
THE COURT: I understand.
[DEFENSE COUNSEL:] And that's different from
posing a question, now we're saying we have another crime
[THE COURT:] That he was charged with. I
understand. I understand . And I wish there was a rule that said
that the first direct and the cross and the redirect and the
recross and the re-re and the re-re that would refine it. But we
don't have a rule like that. So, at any rate as I understand
your objection, it's overruled, sir.
The prosecutor resumed questioning Delaney
regarding additional incidents of extortion for which appellant
was charged with while he was in jail. Appellant once again
[DEFENSE COUNSEL:] At this point I think we're
badgering the witness. He's already testified that he has no
knowledge about anything other than his limited involvement and
the scope of his - I think the State at this time is badgering
this man. And he doesn't deserve that.
The trial court overruled appellant's objection.
Without further objections, the prosecutor finished asking
Delaney a series of "did you know" questions concerning more
charges that had been filed against appellant while he was in
Appellant has failed to preserve error for
appellate review. To preserve error for appellate review, the
complaining party must make a specific objection and obtain a
ruling on the objection. Broxton v. State, 909 S.W.2d
912, 918 (Tex. Crim. App. 1995). In addition, the objection must
be made at the earliest possible opportunity. Turner v.
State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991), cert.
denied 502 U.S. 870 (1991). Finally, the point of error on
appeal must comport with the objection made at trial. Thomas
v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986).
Appellant first complains of the "did you know"
question posed by the prosecutor about the stolen vehicle. At
trial, appellant objected on the grounds that no evidence had
been introduced to support the facts asserted by the prosecutor.
Not only did appellant fail to make a timely objection, but the
objection raised on appeal differs from that which was lodged at
trial. As such, appellant failed to preserve error regarding
Appellant likewise failed to make the proper objections to the
other "did you know" questions regarding the specific acts
allegedly committed by appellant while he was in jail. Appellant
first objected on the ground that the question on re-cross was
outside the scope of the re-direct and then because he felt the
prosecutor was badgering the witness. At no time did appellant
object on the grounds he now raises on appeal.
Even if appellant had preserved error, his claim would be
without merit. 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." Drone v. State,
906 S.W.2d 608, 616 ( Tex. App.- Austin 1995, pet. ref'd);
Tex. R. Evid. 405(a).
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"
Reynolds v. State, 848 S.W.2d 785, 788 (Tex. App.- Houston
[14th Dist.] 1993, pet. ref'd).
In the present case, appellant called Delaney to testify as a
character witness. On direct examination, Delaney testified that
he was surprised to learn that appellant had just been convicted
of capital murder and had a prior criminal history. Moreover, he
testified that during the times that he was with appellant,
appellant exhibited exceptional behavior. In addition, on re-direct,
when asked by appellant's attorney whether in spite of all the
things he was asked by the State during cross-examination
regarding specific instances of appellant's conduct appellant
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 Delaney testified as to his opinion of
appellant, the State was entitled to test his knowledge about
specific instances of conduct involving appellant by asking a
series of "did you know questions." See id. Appellant
claims, however, that it was improper for the trial court to
allow the State to ask Delaney "did you know" questions about
specific criminal acts over objection since the acts had not
been proven before the jury.
The right of a party to cross-examine a character
witness on specific instances of conduct is subject to certain
limitations. See Lancaster v. State, 754 S.W.2d 493,
496 (Tex. App.- Dallas 1988, pet, ref'd). First, the incidents
inquired about must be relevant to the character traits at issue.
Id. Second, the alleged bad act must have a basis in
fact. Id. 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.
See United States v. Nixon, 777 F.2d. 958, 970 (5th
Reynolds, 848 S.W.2d at 788. Specific instances should
not, however, be proven before the jury. See Nixon, 777
F.2d. at 970. The rationale behind this rule is explained in the
Commentary to Federal Rule of Evidence 405 in the federal code:
While a party may cross-examine a character
witness with relevant specific acts, the party may not prove
that these acts occurred, if the only purpose is to test the
character witness. Rule 405(a) states that "inquiry is allowable"
into relevant specific instances of conduct. This language does not permit extrinsic
proof of the conduct.
The rationale is that the probative value of
extrinsic proof of such a collateral matter is substantially
outweighed by the risk of prejudice, confusion, and delay that
the proof would present; after all, the bad act is only
probative in these circumstances to test the character witness.
It is not worth it, under the circumstances, to prove to the
jury that this act really occurred.
In the present case the State was asking the
questions for the purpose of testing Delaney's familiarity with
appellant. As such, not only was the State not required to prove
to the jury that the acts actually occurred, but it would have
been improper for the State to attempt to do so. Appellant's
claim is therefore without merit.
We overrule appellant's points of error. We
affirm the judgment of the trial court.
Delivered: March 20, 2002
Unless otherwise indicated all future references to Articles
refer to the Code of Criminal Procedure.
2. Appellant had a history
of assaulting people.
3. Rule 405 provides: "In
all cases in which evidence of character or character trait is
admissible, proof may be made by testimony as to reputation or
by testimony in the form of an opinion. In a criminal case, to
be qualified to testify at the guilt stage of trial concerning
the character or character trait of an accused, a witness must
have been familiar with the reputation, or with the underlying
facts or information upon which the opinion is based, prior to
the day of the offense. In all cases where testimony is admitted
under this rule, on cross-examination inquiry is allowable into
relevant specific instances of conduct."
Although Rule 405 of the Texas Rules of Evidence
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. See 1 Steven Goode Et Al., Guide To The
Texas Rules Of Evidence: Civil And Criminal §405.2.4 (2d ed.
1993). 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. See
Rutledge v. State, 749 S.W.2d 50, 52-53 (Tex. Crim. App.
1988). 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. Goode Et
Rule 405(a) of the Federal Rules of Evidence is nearly identical
to Rule 405(a) of the Texas Rules of Evidence. It provides: "In
all cases in which evidence of character or a trait of character
of a person is admissible, proof may be made by testimony as to
reputation or by testimony in the form of an opinion. On cross-examination,
inquiry is allowable into relevant specific instances of conduct."
Although we are not bound by lower federal court decisions,
cases and commentaries interpreting the Federal Rules of
Evidence can be used for guidance in our construction of
similarly worded provisions in our own rules. See
Coffin v. State, 885 S.W.2d 140, 147 n.4 (Tex. Crim. App.
1994); see also Campbell v. State, 718 S.W.2d 712,
715-17 (Tex. Crim. App. 1986).
U.S.C.S. Fed. R. Evid. 405 at 477 (1998) (Commentary
by Saltzburg et al.).
Geno Capoletti Wilson on Death
Row March 2005.