Monday, February 4, 2013
Incommunicado: Court of Appeals of Texas Finds Trial Court Properly Precluded Defendant From Admitting Character Evidence
Texas Rule of Evidence 404(a) provides that
Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent character trait offered:
(A) by an accused in a criminal case, or by the prosecution to rebut the same, or
(B) by a party accused in a civil case of conduct involving moral turpitude, or by the accusing party to rebut the same;
(2) Character of victim. In a criminal case and subject to Rule 412, evidence of a pertinent character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of character for violence of the alleged victim of assaultive conduct offered on the issue of self-defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same;
(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608 and 609.
Moreover, Texas Rule of Evidence 405(a) provides that
In all cases in which evidence of a person's 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.
In other words, at a criminal trial in which the defendant is not being prosecuted for homicide, unless the defendant introduces propensity character evidence, the prosecution cannot introduce propensity character evidence ("once a criminal, always a criminal," "once a burglar, always a burglar, etc."). The defendant, however, can open Pandora's box and present propensity character evidence concerning himself and/or the alleged victim. As Rule 405(a) makes clear, however, the only proper form of evidence that a character witness can render on direct examination is reputation ("I've been the victim's neighbor for the past 5 years, and he has a terrible reputation in the neighborhood for violence.") and opinion ("I've known the victim for 5 years, and in my opinion, he's a violent person") testimony. Moreover, as Rule 404(a) makes clear, once the defendant has presented propensity character evidence, the prosecution can then rebut this evidence with its own propensity character evidence.
As the recent opinion of the Court of Appeals of Texas in Williams v. State, 2013 WL 341900 (Tex.App.-Dallas 2013), makes clear, however, none of the above matters if a defendant is introducing character evidence under the "communicated character " doctrine.
In Williams, Billy Ray Williams was charged with aggravated assault with a deadly weapon based upon an attack on David Crow. At trial, Williams sought to present evidence of a fight between Crow and him on the day before the crime charged as well as evidence of Crow's prior arrest for having a blackjack or club." The trial court allowed WIlliams to introduce evidence regarding the prior fight, but it precluded him from presenting evidence of Crow's prior arrest for having a blackjack or club.
After Williams was convicted, he appealed, claiming that the trial court erred by preventing him from presenting evidence of Crow's prior arrest. In response, the Court of Appeals of Texas, Dallas, initially noted that
a defendant may offer reputation or opinion testimony or evidence of specific prior acts of violence by the victim to show the "reasonableness of defendant's claim of apprehension of danger" from the victim....This is called "communicated character" because the defendant is aware of the victim's violent tendencies and perceives a danger posed by the victim, regardless of whether the danger is real....This theory does not invoke rule of evidence 404(a)(2) of the rules of evidence because rule 404 bars character evidence only when it is offered to prove conduct that is in conformity, i.e., that the victim acted in conformity with his violent character.
This thus explains why WIlliams was allowed to testify about the prior fight between Crow and him: He obviously was aware of the prior fight, with the prior fight placing him in reasonable apprehension of Crow. The problem for WIlliams, however, was that he presented no evidence that he had awareness of Crow's prior conviction for having a blackjack or club. As such, he could only seek to present evidence of the arrest under the "uncommunicated character" doctrine. As explained by the court,
A defendant may also offer evidence of the victim's character trait for violence to demonstrate that the victim was, in fact, the first aggressor....Rule 404(a)(2) applies to this theory, which is called "uncommunicated character" evidence, because it does not matter if the defendant was aware of the victim's violent character...."The chain of logic is as follows: a witness testifies that the victim made an aggressive move against the defendant; another witness then testifies about the victim's character for violence, but he may do so only through reputation and opinion testimony under Rule 405(a)."
Therefore, because Williams tried to present evidence of a specific instance of Crow's violence, the trial court properly deemed that evidence inadmissible.