Kevin Ray Davis v. State ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-09-00362-CR

Kevin Ray Davis,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2008-2105-C2

MEMORANDUM  Opinion

            Kevin Ray Davis appeals his conviction for aggravated assault with a deadly weapon.  Tex. Pen. Code Ann. § 22.02 (Vernon 2003).  Based on the jury’s verdict on punishment, the trial court sentenced Davis to imprisonment for twenty-five years in the Texas Department of Criminal Justice – Institutional Division.  Davis complains that the trial court abused its discretion by refusing to allow testimony of an opinion regarding the victim’s character for truthfulness in the guilt-innocence phase and in the admission of testimony regarding his gang affiliation in the punishment phase of the trial.  Because we find no reversible error, we affirm the judgment of the trial court.

Opinion Regarding Truthfulness

              Davis complains that the trial court erred by sustaining an objection by the State to a question propounded to a probation officer regarding the victim’s character for truthfulness based solely on the information contained in the victim’s probation file.  Davis sought to elicit the testimony of a supervisor in the probation department that supervised the victim’s probation for the offense of tampering with a governmental record pursuant to Texas Rule of Evidence 608.

            In a hearing outside of the presence of the jury, Davis made a proffer of the proposed testimony of the probation officer.  Specifically, he asked the following:

Q:        Ma’am, I think we were about to the part where I think I asked you if you had a chance to look at the file.

A:        Yes.

Q:        Okay.  And that’s a file that’s kept in the normal course of the operation of the probation department; is that correct?

A:        That’s correct.

Q:        Okay.  Records made by people who have personal knowledge of the entries, is that right?

A:        That’s correct.

Q:        Okay.  And you’ve had a chance to look at that.  And based on what you’ve seen in those records, do you have an opinion on whether Ms. Rollins is a truthful person or not?

A:        Yes, I do.

Q:        And what would that be?

A:        That she is not a truthful person.

            It is apparent that at the trial court, Davis was seeking to elicit testimony regarding the probation officer’s opinion regarding the victim’s character for truthfulness, not the victim’s reputation for truthfulness.  However, his complaint to this Court relates solely to reputation evidence.  Testimony regarding a witness’s opinion of the victim’s character for truthfulness is not the same as a witness’s knowledge of the victim’s reputation for truthfulness.  See, generally, Scott v. State, 222 S.W.3d 820, 823-826 (Tex. App.—Houston [14th Dist.] 2007, no pet.).  The first is the direct opinion of the witness, which could be based solely on personal knowledge.  The second is based on significantly more information.  Reputation evidence must be based on conversations with others or hearing others discuss the reputation of the individual in question, not just personal knowledge.  See Adanandus v. State, 866 S.W.2d 210, 226 (Tex. Crim. App. 1993).   Davis’s complaint does not comport with his objection at trial. To preserve error for appellate review, the point of error on appeal must comport with the objection made at trial.  See Tex. R. App. P. 33.1; see also Sorto v. State, 173 S.W.3d 469, 476 (Tex. Crim. App. 2005).  We overrule issue one.

Evidence of Gang Membership

            Davis complains that the trial court erred by allowing the introduction of evidence of his purported membership in the “Crips,” including the introduction of a photograph of Davis making a gang sign in the punishment phase of his trial.  Davis contends that the admission of the gang-related evidence was more prejudicial than probative.  However, during the testimony given relating to Davis’s purported gang membership and the activities of the Crips in general, Davis only objected one time on the basis of relevance. Therefore, we limit our consideration of this issue to the only time Davis objected on the basis that the evidence was more prejudicial than probative, which was at the time of the admission of the photograph.  See Tex. R. App. P. 33.1. 

            We review challenges to the admission of evidence for an abuse of discretion by the trial court.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g) (“as long as the trial court's decision was within the zone of reasonable disagreement and was correct under any theory of law applicable to the case, it must be upheld”). Evidence of membership in a gang during the punishment phase of a trial is generally admissible as evidence of the defendant’s character, as is evidence relating to the activities of the gang.  Beasley v. State, 902 S.W.2d 452, 456-57 (Tex. Crim. App. 1995).  Davis does not cite to any authorities in support of his contention that the photograph should have been excluded.  We do not believe that the admission of the photograph of Davis was outside of the zone of reasonable disagreement.  We overrule issue two.

Conclusion

            We find that the argument made in this appeal regarding the admission of the opinion of the probation officer does not comport with his objection at trial.  We find that the trial court did not abuse its discretion in the admission of a photograph of Davis making a gang sign.  We affirm the judgment of the trial court.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Affirmed

Opinion delivered and filed July 21, 2010

Do not publish

[CRPM]

'mso-spacerun:yes'>  Tex. R. App. P. 41.1(a).  

Such an interpretation ignores article V, section 6 of the Texas Constitution.  Tex. Const. art. V, § 6 (“The concurrence of a majority of the judges sitting in a section [panel] is necessary to decide a case.”).

It ignores section 22.222(c) of the Texas Government Code.  Tex. Govt. Code Ann. § 22.222(c) (Vernon 2004) (“A majority of a panel constitutes a quorum for the transaction of business, and the concurrence of a majority of a panel is necessary for a decision.”).

          It ignores long-standing Texas Supreme Court precedent, decided even before the constitution specified the number of judges on a court of appeals that constitutes a quorum.  Nalle v. City of Austin, 85 Tex. 520, 22 S.W. 668 (1893).  The Supreme Court observed:

Hence, if it should be held that a full bench is necessary to make a quorum, the result would be, that in the event of the absence of one of the judges by reason of sickness or from any other cause, the business of the court would remain in suspense until the absent member should be present.  Such a rule would be fraught with mischief, and would tend to obstruct the accomplishment of the very purpose for which the Courts of Civil Appeals were created.

Id. at 671. The Court proceeded, “if two be a quorum, and two be qualified and able to agree, no additional judge is requisite to a decision of the case, although the third member of the court be recused.” Id.  And finally, “[w]e conclude, therefore, that the disqualification of Judge Key did not make requisite the appointment of a special judge, and that the court composed of his two associates constituted a lawful tribunal for the trial and determination of the case.”  Id. at 672.

          It ignores more recent precedent, specifically rejecting the dissent’s assertion.  See Hoyt v. Hoyt, 351 S.W.2d 111, 114 (Tex. Civ. App.—Dallas 1961, writ dism’d w.o.j.).  After noting that Associate Justice Williams chose not to participate in the decision because he had been the trial judge (although not legally disqualified), the majority in Hoyt said that even the disqualification of one member does not prevent the other members from lawfully proceeding.  Id. (citing Nalle).

          It ignores Dickinson State Bank v. Ogden, where a judgment was held valid when one member of a panel had been elected to the Supreme Court after the case was submitted on oral argument and the case was then decided by the remaining panel members.  Dickinson State Bank v. Ogden, 624 S.W.2d 214, 222 (Tex. Civ. App.—Houston [1st Dist.] 1981), rev’d on other grounds, 662 S.W.2d 330 (Tex. 1984) (on rehearing).

          That leaves the question, “Does Appellate Rule 41.1(a) impose a requirement that all three members of a three-justice court of appeals actually participate in the decision of every case submitted without argument, when none is disqualified or recused?”

Court-adopted rules cannot be inconsistent with the constitution.  See Starnes v. Holloway, 779 S.W.2d 86, 96 (Tex. App.—Dallas 1989, writ denied). "Of course, a statute controls over a procedural rule."  In re Chu, 134 S.W.3d 459, 466 (Tex. App.—Waco 2004, orig. proceeding).  An interpretation of Rule 41.1(a) that requires that all three justices of this court participate in every decision rendered without oral argument conflicts with section 6 of article V of the Texas Constitution and section 22.222(c) of the Government Code, both of which provide that a majority of a panel constitutes a quorum.  Tex. Const. art. V, § 6; Tex. Govt. Code Ann. § 22.222(c).

Furthermore, such an interpretation creates an absurd result, by giving one member of the court a virtual veto over any opinion in an unargued case with which that member does not agree.  As long as the “dissenting” member is not disqualified or recused and remains on the panel, no opinion could issue.  The majority’s only recourse would be to schedule the case for oral argument, so that Rule 41.1(c) would allow the issuance of the opinion without the participation of the “dissenting” (non-participating) justice.  See Tex. R. App. P. 41.1(c) (After argument, if for any reason a member of the panel cannot participate in deciding a case, the case may be decided by the two remaining justices.).  The dissent’s construction of the Rule is “fraught with mischief.”  Nalle, 22 S.W. at 671.

          Because we can reasonably construe Rule 41.1(a) so that it does not conflict with the constitution or the statute, we should do so. See Collins v. Ison-Newsome, 73 S.W.3d 178, 184 (Tex. 2001) (Jefferson, J. concurring) (“When a procedural rule conflicts with a statute, the statute controls unless the rule repeals the statute under Texas Government Code section 22.004.”) (citing Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000)). A reasonable construction of the rule, if it applies, is that two justices on a three-member court of appeals may decide a case submitted without argument when the third justice voluntarily elects not to participate in the decision.

          I concur in the order withdrawing the prior opinion and judgment in this case and substituting the revised opinion and judgment.

BILL VANCE

Justice

Concurring opinion delivered and filed November 10, 2004

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    [1]       Rule 41.1(a) may not apply to three-justice courts of appeals at all, considering that it begins “Unless a court of appeals with more than three justices . . . .”   For purposes of this opinion, I—like the dissent—assume it applies.