Nonie Thompson v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-93-159-CR

NONIE THOMPSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 92-432-C

O P I N I O N

Nonie Thompson, a man in his mid-seventies, was alleged to have touched the breasts and genitals of his ten year-old step-granddaughter with his hand and to have penetrated her vagina with one of his fingers, all during the same criminal episode. He was indicted on one charge of aggravated sexual assault and two counts of indecency of a child. See Tex. Penal Code Ann. 21.11, 22.021 (Vernon 1989). After pleading guilty to the two counts of indecency with a child, Thompson was acquitted by a jury of the aggravated sexual assault charge. The jury assessed punishment at a $5000 fine and fifteen years of confinement in the Texas Department of Corrections-Institutional Division for each of the two indecency charges. Thompson brings two points of error: first, whether the trial court erred in allowing the state to impeach his character witness with "Have you heard" questions and, second, whether his federal constitutional rights against double jeopardy were violated when he was sentenced twice for the same offense of indecency with a child. We affirm.

In his first point Thompson asserts the trial court erred by permitting the state to impeach his character witness with "Have you heard" questions. We will first consider whether this complaint was preserved at trial.

A detailed recitation of the facts is necessary for a proper analysis of this issue. During the punishment phase of the trial, the state questioned its first witness, Rita York, one of Thompson's daughters, about his reputation for being a peaceful and law-abiding citizen. After failing to receive a clear answer, it asked the trial court, the Honorable George H. Allen, if it could approach the bench. // Judge Allen consented, whereupon, at a bench conference, the state notified the court that, among other things, if the witness testified that Thompson's reputation was good, it would attempt to introduce extraneous offense evidence.

Judge Allen, after first expressing his opinion that under these circumstances evidence of the extraneous offenses was inadmissible, invited the state to demonstrate in camera what evidence it would seek to introduce. The state, accordingly, outside the jury's presence, asked York what was her opinion of Thompson as a peaceful and law-abiding citizen, to which she responded that, aside from the charges to which he had plead guilty, he is peaceful and law-abiding. The state then asked her whether she was aware that Thompson had been accused of several other acts of molesting children other than the victim in the instant case. Thompson objected on the grounds that the extraneous offenses were unadjudicated and, therefore, inadmissible under Grunsfeld v. State, 843 S.W.2d 521 (Tex. Crim. App. 1992). Judge Allen, declining to rule at that moment, replied that he would carry Thompson's objection.

The state then asked York whether she was aware that all of Thompson's accusers were related to him. She replied that she was. Upon being informed by the state that it would not seek to ask any further questions, Judge Allen ruled that the state would be precluded from asking any questions about the extraneous offenses.

Following the in camera hearing, the state chose not to ask the witness any further questions. Thompson then started to cross-examine York, but before he could present any questions, Judge Allen called the parties back into his chambers to warn them that, due to the state of the record, Thompson was on the verge of opening the door for the prosecution to begin asking "Have you heard" questions. Upon returning to the courtroom, Thompson decided not to ask York any questions.

After two more witnesses offered testimony, one from the state and one from the defense, Thompson called a friend, Will Veazy, to testify on his behalf. The following colloquy occurred:

Q. How long have you known Nonie Thompson?

A. It's been around thirty years.

Q. How do you know him? How well do you know him?

A. Well, we've been pretty good friends for the last ten or twelve years.

Q. So you've known him better in the last ten or twelve years --

A. I have.

Q. -- than in the first twenty?

A. Yeah.

Q. Based on your personal experiences and knowledge of Mr. Thompson, do you have an opinion about his character as a peaceful and law-abiding citizen?

A. I do.

Q. What is that opinion?

A. Well, I think he's a Christian man, and I think he wants to do what's right with the law.

Q. Is he peaceful?

A. What time I'm around him, he's always peaceful.

Q. Is he law-abiding?

A. I would think so.

Q. Pass the witness.

The state then approached the bench. Outside the presence of the jury the state informed the court that it had been told by one of Thompson's other daughters, Jamie Wilson, that he had molested several children, including Janice Wilson, Rita York, and other children named Gina, Tammy Kay, Sandra, and Christi; the state then conveyed its desire to ask questions concerning these allegations.

Before the court responded, Thompson's counsel argued, "Your honor, this man can only testify to facts that he knows about. It would be highly prejudicial to ask questions [on the accusations against Thompson of child molestation] and, if he doesn't know anything, those questions should not be asked before the jury."

The court ruled, "He can ask the questions. He can ask the 'Have you heard' questions, and the witness can either answer or not answer them, but be careful how you ask them. You know, 'Have you heard.'"

The state responded, "Yes, sir." Nothing further was mentioned on behalf of the defense. Upon returning to the courtroom, the state, in the jury's presence, asked Veazy if he had heard that Thompson had sexually molested the several people named above. The defense lodged no objection when the questions were asked. When the state completed asking the "Have you heard" questions, Veazy testified, in response to a question asked by the state, that his knowledge of this information would not change his opinion of Thompson as a peaceful and law-abiding citizen.

In order to preserve a complaint for appellate review, a party must present to the trial court a timely objection and receive a ruling on that objection. Tex. R. App. P. 52(a); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Furthermore, the objection made at trial must be on specific grounds and for the same error alleged on appeal. Tex. R. App. P. 52(a); Mooney v. State, 817 S.W.2d 693, 703 (Tex. Crim. App. 1991). The following questions are before us: first, whether Thompson presented to Judge Allen a timely objection to the state's use of "Have you heard" questions; second, whether Thompson's objection in camera served as a timely objection in trial; and third, whether his objection at trial was the same as his argument on appeal.

The state notified the court that it wished to ask a witness questions about some accusations made against Thompson that he had molested several children. Before the court responded, Thompson argued that the questions should not be asked. The trial court then ruled the questions could be asked in the "Have you heard" form. We find that Thompson, by stating his opposition to a proposal by the prosecution and arguing against it, lodged a timely objection despite never specifically informing the court that he intended to object. See Nunfio v. State, 808 S.W.2d 482, 484 (Tex. Crim. App. 1991).

The state argues that even if Thompson lodged a timely objection during the in camera hearing, he waived error by failing to object when the "Have you heard" questions were asked before the jury. "When the court, out of the jury's presence, hears and overrules objections to evidence, those objections need not again be made before the jury when the evidence actually is presented to the jury." Ethington, 819 S.W.2d at 858. This same rule of law applies to the facts of the instant case where the defense made a timely objection outside the jury's presence to the state's request to question a witness about extraneous offenses allegedly committed by the defendant and where the questions are subsequently asked before the jury without objection.

The state argues further that, even if Thompson lodged a timely objection, the complaint he asserts on appeal differs from the one for which he complained at trial. We agree. When he first learned of the state's intention to ask the "Have you heard" questions, Thompson argued that they could not be asked because, among other things, the substance of the extraneous offenses was outside Veazy's knowledge. On appeal Thompson asserts his objection at trial encompassed the argument that the form of the questions was improper. This, however, is not an argument the trial court could have understood Thompson to have intended to make when he voiced his objection. See Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (specificity requirement for a proper objection is met when the complaining party lets the trial court know what he wants, why he thinks himself entitled to it, and does so clearly enough for the judge to understand him at a time when the court is in the proper position to do something about it). Without Thompson making any mention of "Have you heard" questions or "Do you know" questions or reputation testimony or opinion testimony, the state notified the trial court that it believed Thompson had opened the door to negative character evidence by eliciting from Veazy testimony of Thompson's good character. The method by which the negative character evidence was to be offered was not discussed. Thompson responded with the vague complaint that Veazy "can only testify to facts he knows about." Judge Allen then, sua sponte, instructed the state only to ask "Have you heard" questions. Thompson said nothing else.

If Thompson's grievance truly was with the form of the questions, he would have, or at least should have, objected when Judge Allen instructed the state only to ask "Have you heard" questions. Appropriate objections would have been that "Have you heard" questions could not be asked of an opinion witness, that only "Did you know" questions could be asked of an opinion witness, or simply that the "Have you heard" form of the questions Judge Allen instructed the state to use was improper. See Rutledge v. State, 749 S.W.2d 50 (Tex. Crim. App. 1988); see also Reynolds v. State, 848 S.W.2d 785, 788 (Tex. App. Houston[14th Dist.] 1993, pet. ref'd). Without such an objection, the purposes of a proper objection could not have been achieved. Maynard v. State, 685 S.W.2d 60, 64-65 (Tex. Crim. App. 1985) (The purposes of an objection are: first, to inform the trial judge of the basis of the objection and afford him an opportunity to rule on it; and second, to afford opposing counsel an opportunity to remove the objection or supply other testimony.) Accordingly, we conclude that Thompson's objection was limited to an argument under the general theory that Veazy, either as an opinion witness or a reputation witness, should not be asked any questions about any allegations of extraneous offenses committed by Thompson because they would concern facts about which he would have no way of knowing. Therefore, Thompson failed to preserve his complaint against the trial court's permitting the state to ask questions of Veazy in the "Have you heard" form.

Notwithstanding Thompson's failure to preserve error, we will discuss whether any error was committed and, if so, whether such error was harmful.

Prior to September 1, 1986, Texas law provided that character witnesses were allowed only to offer testimony on the defendant's reputation in the community. See Rutledge, 749 S.W.2d at 52-53. Opinion testimony was not admissible either to establish the defendant's good character or to impeach the testimony of a reputation witness who had testified that the defendant had a good character. See Bratcher v. State, 771 S.W.2d 175, 186 (Tex.App. San Antonio 1989, no pet.) (Onion, J, writing for the majority). The testimony of reputation witnesses could be impeached by asking questions of the witness about various extraneous offenses about which the prosecution had a good faith belief the defendant had committed. See Brown v. State, 477 S.W.2d 617, 619-620 (Tex. Crim. App. 1972) (citing Hart v. State, 447 S.W.2d 944 (Tex. Crim. App. 1970)). The prosecution, however, was restricted to using the "Have you heard" question form when asking about the extraneous offenses, the theory being that reputation witnesses are testifying only to the community's perception of the defendant's character and this perception is necessarily formulated through the repeating of hearsay statements. Rutledge, 749 S.W.2d at 53. Indeed, the use of the "Did you know" question form was held to constitute reversible error because improper impeachment resulted when a witness testifying about the community's perception of the defendant's character was asked whether he knew from his own, discrete knowledge that the defendant may have committed various acts of misconduct. Id.

On September 1, 1986, the rule restricting character evidence only to reputation evidence was expanded to also allow evidence of a witness' opinion of the defendant's character when the Texas Rules of Criminal Evidence were enacted. See Tex. R. Crim. Evid. 405(a). With the introduction of opinion testimony came the corresponding need by the prosecution to impeach the testimony of witnesses who testified that, in their opinion, the defendant had a good character where, in fact, the true quality of the defendant's character was open to question. "Did you know" became the proper form of the question to impeach the testimony of an opinion witness because the state was then challenging, not the witness' knowledge of the community's perception of the defendant's character, but the extent of the witness' knowledge of the actions which comprise the defendant's true character. See Reynolds v. State, 848 S.W.2d 785, 788 (Tex. App. Houston[14th Dist.] 1993, pet. ref'd).

Veazy was an opinion witness. His testimony about Thompson's character came from his own personal observations of Thompson's actions through their relationship as friends. Consequently, as an opinion witness, it was error to impeach his testimony with "Have you heard" questions. See Rutledge, 749 S.W.2d at 53.

The error that occurred, however, was harmless. Tex. R. App. P. 81(b)(2). Thompson relies upon Rutledge, Schumaker v. State, 704 S.W.2d 548 (Tex. App. Corpus Christi 1986, no pet.), and Brown v. State, 477 S.W.2d 617 (Tex. Crim. App. 1972), for the proposition that reversible error results when an opinion witness is asked "Have you heard" questions. These cases, however, were for trials conducted, unlike Thompson's, prior to September 1, 1986.

The change in Texas evidence law effectuated by rule 405(a) to allow the admission of opinion evidence to establish a criminal defendant's character followed an identical change in federal evidence law. See Fed. R. Evid. 405(a). The drafters of rule 405(a) of the Federal Rules of Evidence, after which Texas Rule of Criminal Evidence 405(a) was patterned, faced the same questions which we are addressing today in determining the proper manner of impeaching both reputation and opinion witnesses who offer positive evidence of a defendant's character. After due consideration, these drafters determined that, while "Did you know" questions should be addressed to opinion witnesses and "Have you heard" questions should be asked of reputation witnesses, any error a party made in using the wrong form would be harmless. See Bratcher v. State, 771 S.W.2d 175, 187 (Tex.App. San Antonio 1989, no pet.) (quoting with approval 33 S. Goode, O. Wellborn & M. Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal 405.2 (Texas Practice 1988)). The Texas drafters apparently agreed with this reasoning. See id. The Guide to the Texas Rules of Evidence is instructive:

The drafters of the federal rule, which is essentially the same as the new Texas rule, decided that the difference between ["Have you heard" and "Did you know"] questions has "slight if any practical significance," and the Texas drafters apparently agreed. This type of cross-examination under Rule 405(a) does not discriminate between character witnesses testifying to reputation and those testifying to opinion, thus arguably permitting "Did you know? and "Have you heard" questions to be asked of both. Such a dramatic change in our traditional practice is open to question as a matter of logic. The reputation witness purportedly bases her testimony on hearsay in the community. Her personal knowledge or lack thereof concerning a specific act inconsistent with the character trait to which she has testified would not seem to affect her credibility as a reporter of the community's views. Similarly, the opinion witness claims to testify from personal knowledge of the subject. Her personal views of the subject's character are presumably unaffected by rumors concerning the subject's character; certainly not if she has not heard such discussions. The criteria employed by an opinion witness to reach a conclusion as to the subject's good character might be adversely affected by her refusal to change that opinion in the face of inquiry concerning prior misconduct. Moreover, such pointed examination would seem to threaten the general prohibition on the use of specific act evidence. Although logically the best rule would be to continue to restrict cross-examination of reputation witnesses to "have you heard" and permitting only "did you know to be used in the cross-examination" of opinion witnesses, this is not required by Rule 405. It is certainly to be hoped that reversal will not be predicated on the niceties of the form in which the question is presented.

We agree that the "niceties" of the form of the inquiry into the relevant specific instances of misconduct should not constitute reversible error. See Bratcher, 771 S.W.2d at 187 ("Were you aware" questions asked of an opinion witness not reversible error).

Because we conclude that complaint was not preserved and that, even if it was, the error was harmless, we overrule Thompson's first point.

In his second point Thompson argues his federal constitutional rights against double jeopardy were violated when he was sentenced twice for the same offense of indecency with a child. See U.S. const. amend. V; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969) (federal double jeopardy clause protects against multiple punishments for the same offense). In the second paragraph of his indictment Thompson was charged with indecency with a child under the age of seventeen and not his spouse by touching her genitals. In the third paragraph, he was charged with indecency with the same victim during the same incident but by touching her breasts instead of her genitals. Thompson plead guilty to both counts and received a sentence for each.

Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 2d 306 (1932) sets out the test to determine whether a defendant has been punished twice for the "same offense" as follows:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

This test was reaffirmed in United States v. Dixon, U.S. , , 113 S. Ct. 2849, 2859-2860, 125 L. Ed. 2d 556 (1993). Where each offense requires proof of an element that the other does not, multiple prosecution is not barred. David v. State, 808 S.W.2d 239 (Tex. App. Dallas 1991, no pet.) (citing Ex Parte McWilliams, 634 S.W.2d 815, 823-824 (Tex. Crim. App.), cert. denied, 459 U.S. 1036, 103 S. Ct. 447, 74 L. Ed. 2d 602 (1982)). The defendant bears the burden to present facts necessary to demonstrate a double jeopardy violation. David, 808 S.W.2d at 239 (citing Wockenfuss v. State, 521 S.W.2d 630, 631 (Tex. Crim. App. 1975)); see also Cochran v. State, 874 S.W.2d 769, 772 (Tex. App. Houston[1st Dist.] 1994, no pet.).

Two courts of appeals have ruled that a sexual assault defendant who commits two different acts of penetration during the same criminal episode does not have his federal constitutional rights against double jeopardy violated when both acts of penetration are charged in the same indictment as two separate offenses. Cochran v. State, 874 S.W.2d 769 (Tex. App. Houston[1st Dist.] 1994, no pet.) (in three counts of aggravated sexual assault involving the same incident, penile penetration of minor victim's mouth and vagina and penetration of the vagina with a finger); David v. State, 808 S.W.2d 239, 242-243 (Tex. App. Dallas 1991, no pet.) (penile penetration of minor victim's vagina and mouth). In the instant case, for one of the offenses the state was required to prove that Thompson touched the breasts of the victim while in the other the state needed to prove he touched the victim's genitals. We conclude that, under the reasoning in Cochran and David, that the federal double jeopardy rights of a defendant charged with two counts of indecency with a child are not violated when he, during the same incident, touches both the breasts and the vagina of the victim and is sentenced for two separate offenses. Thompson's second point is overruled. The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 11, 1995

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