Sanchez, Jesus Martin v. State ( 2000 )

NUMBER 13-99-591-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JESUS MARTIN SANCHEZ

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 197th District Court of Cameron County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion by Chief Justice Seerden

This is an appeal from a judgment of conviction entered against Jesus Martin Sanchez, appellant, for the offenses of aggravated sexual assault⁽¹⁾ and indecency with a child.⁽²⁾ By three issues, appellant contends: he was denied the right to introduce relevant character evidence; the trial court erroneously admitted the alleged victim's written statement; and the trial court submitted an erroneous jury charge.

The record reflects that J.C., a twelve-year-old child, alleged that he was sexually assaulted by appellant. J.C. stated that he ran away from home and was staying with appellant. J.C. testified that while he was staying with appellant, appellant touched J.C.'s penis. J.C. also testified that at another time during his stay with appellant, appellant's penis contacted J.C.'s penis. When subjected to cross-examination, J.C. recanted some of his testimony, responding that he did not think that the alleged penis-to-penis contact had actually occurred.

During his case-in-chief, appellant sought to introduce evidence of J.C.'s character for truthfulness by calling J.C.'s fifth grade teacher, Paul Ox. Prior to allowing Ox to testify, the trial court held a hearing outside the presence of the jury, during which Ox testified. After hearing Ox's proposed evidence, the trial court refused to admit the testimony.

By his first issue, appellant contends the trial court erred in refusing to admit Ox's testimony regarding J.C.'s character for truthfulness.

Once a witness has testified, evidence pertaining to that witness's character for truthfulness may be introduced to attack that witness's credibility. See Tex. R. Evid. 608(a); Garza v. State, 18 S.W.3d 813, 824 (Tex. App.--Fort Worth 2000, pet. ref'd). This evidence may be in the form of either testimony as to the witness's reputation or an opinion reached by another person who is available to testify. Tex. R. Evid. 608(a). Such testimony cannot be based upon specific acts of conduct committed by the target of his testimony, but must instead be based upon synthesized "observations and discussions which [result] in a conclusion" as to the individual's general character for truthfulness. Adanandus v. State, 866 S.W.2d 210, 226 (Tex. Crim. App. 1993); Wagner v. State, 687 S.W.2d 303, 313 (Tex. Crim. App. 1985). The impeachment witness must have substantial familiarity with the person about whom he or she is supposed to testify. Lopez v. State, 860 S.W.2d 938, 944-45 (Tex. App.--San Antonio 1993, no pet.). Although the law favors allowing the accused to demonstrate a witness's character for truthfulness, the trial court retains discretion to determine the admissibility of such evidence. Ramos v. State, 819 S.W.2d 939, 941 (Tex. App.--Corpus Christi 1991, pet. ref'd). A decision to exclude evidence of the witness's character for truthfulness is subject to harmless error analysis. Tex. R. App. P. 44.2(a).

Here, the record reflects that J.C. was equivocal on several occasions with regard to whether appellant committed the charged offenses. In an attempt to impeach J.C., appellant sought to introduce Ox's testimony. The record reflects that Ox would have testified that he was J.C.'s teacher for one year. During the course of that relationship, he had difficulty with J.C.'s behavior at school. The nature of this difficulty stemmed, according to Ox, from J.C.'s frequent untruthfulness. Ox stated that after having known J.C. for an entire school year, it was his opinion that J.C. was not an honest child. After hearing this, the trial court excluded the evidence, ostensibly ruling it was not relevant.

We disagree with the conclusion that the proposed testimony was not relevant. Impeachment evidence used for the purpose of demonstrating a witness' character for truthfulness is generally relevant when the target witness has testified. See Tex. R. Evid. 608(a). Here, because J.C. had provided the court with equivocal testimony regarding the alleged sexual assault and indecency, his character for truthfulness was put squarely in issue.

In order to be admissible, the proposed opinion must meet the prerequisites of rule 608(a). Here, J.C. testified, thereby opening the door to an attack on his character for truthfulness. Id.  Ox was prepared to testify that, in his opinion, J.C. was not a truthful child. Ox would have testified to a general pattern of behavior he observed over the course of a school year. Such testimony would have consisted of a synthesis of observations resulting in an opinion, rather than the recollection of numerous anecdotal instances which support a conclusion. Thus, the testimony would not have violated rule 608(b), which prohibits impeachment by specific acts. See Tex. R. Evid. 608(b). Finally, Ox would have testified that he was J.C.'s teacher for most of a school year; an extended period of close interaction which provides sufficient familiarity to suggest that Ox's opinion is reliable.

We hold that, pursuant to rule 608(a), Ox's testimony was admissible. Because that testimony would have been both relevant and admissible, we conclude that the trial court erred in excluding Ox's testimony. Such an error, however, is subject to harm analysis. See Tex. R. App. P. 44.2(a). In considering whether the error resulted in harm, we must reverse a judgment of conviction unless we "determine beyond a reasonable doubt that the error did not contribute to the conviction. . . ." Id.

J.C. was the only witness to testify regarding the specific acts alleged against appellant. That testimony was equivocal. As noted above, Ox's testimony was admissible under rule 608(a) and was relevant. The exclusion of Ox's testimony impaired appellant's ability to impeach J.C.'s credibility by attempting to show his character for untruthfulness. Without this testimony, appellant was convicted. Based on this, we are not convinced beyond a reasonable doubt that appellant would have been convicted notwithstanding Ox's testimony. Thus, we find the error was harmful.

Appellant's first issue is sustained. We reverse the judgment of the trial court and remand the cause for a new trial.

__________________________________

ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 21st day of December, 2000.

1. Tex. Penal Code Ann. §22.021(a)(1)(B)(iii) (Vernon 1998).

2. Tex. Penal Code Ann. §21.11(a)(2) (Vernon 1998).