### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00022- CR

Ro de r ic k De m e tr y R e e de r s, App e lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF BELL CO UNTY, 264TH JUDICIAL DISTRICT NO. 52,477 , HO NORAB LE MARTH A J. TRUDO, JUDGE PRESI DING

M E M O R

A N D U M O P I N I O N Appellant R oderic k Demetr y Reede rs was c onvicted by a jury of indec ency

with a child and sente nced by

the trial cour

t to thirty -five y ear s’ imprisonment. He a ppeals, c omplaining i no n e i s s u e t h at t h e t ri al co u rt erre d i nal l o wi n g t h e S t at e t o cr o s s -e x am i n e h i s m o t h er re gar d i n g a pr ior c on vic tio n. We a ff

ir m th e jud g me nt. Ap pe lla nt w a s a c c us e d a

nd c on vic te d o f t ou c hin g the br e a sts of a fo ur te e n- y e a r- old g irl, a friend of his stepda ug hter, when she spent the night at his house
. Aft er t h e S t at e r ested,
a pp e lla nt c a lle d De tec tive Rand a ll E dd s, wh o te sti fi e d th a t in the 19 90 s, a

pp e lla nt h a d a ssi ste d in
se ve ra l na

rc oti c s in ve sti g a tio ns , a c tin g a s an in fo rm ant and te sti fy inga g a ins t se ve ra l de fe nd a nts
. Edds testified that appe llant was g ener ally reliable and truthful in those intera ctions. Appellant then called his mother, A nnie Har ris, and aske d:At the time the instant char g es we re fi l ed , appellant wa s on parole f or a 1996 r obbery 1 conv ic ti o n . A f

te r th e c h ar g e s w e r e b r o u g h t, a p a r o le r e v o c a ti o nw ar

r an t, a ls o kn o w na s a

“ blue war rant” or “pa

role hold,” w as issued, with the result that appellant was not a llowed to obta in bond. Ap pe lla nt t he re fo re re ma ine d in

ja il f ro m th e ti me of his a

rr e st s ome tim e in 2 00 1 thro ug h tr ia l in October 2003. See Tex. Gov’ t Code Ann. §§ 508.251-.254 (West 2004) (if a rre sted for subse quent offe nse, par olee may

be held on wa

rra nt until facts surrounding alleg ed off ense a re de termined). 2 Q. Now, y our son has be en in jail on these c harg es since a bout Dece mber of 2001, ri g ht? A. Ye s. Q. To da y make s a bo ut 8 34 da

y s h e ha s b e e n in

ja il o n th is s tuf

f, ri g ht? A. Ye s. Ye s. Q. I s he t

he kin d— do e s h e have the kin d o f c ha ra c te r t hat w ou ld m e ss w itha

lit tle c hil d li ke thi s? A. No. Q
. H a v e yo ue v e r

i nyo u r l i f e h e ar d o f h i m d o i n g an yt h i n g l i k e t h i s t o an yb o dy? A. No.
On cr oss-examination, the State informed appellant and the trial court that it intended to e xplor e a

pp e lla nt’ s p ri or c on vic tio ns , a

rguin g tha

t a pp e lla nt h a d o pe ne d th e do or

to t ho se questions with Edds’s testimony about appellant’s assistance in the drug investigations and Harr is’s testimony that appellant ha d been in jail for more than 800 da

y s. The State a

rg ued that the e vidence 1 of the prior

convictions was ne cessa ry to dispel the impression that appellant h ad been in jail for more than two y ear s on the indece ncy char g es, instead of, at least in pa rt, a pa role hold re lated to the
ear lier ro b bery

conviction. Appellant a rg ued that use of

the prior c onviction was improper imp e a c hme nt a

nd that the qu e sti on s he as ke d of his mot he r inq uir e d into a “ sp e c if

ic c ha ra c te r t ra it,3

and that w a s, did

sh e kn ow

of him do ingany

thi ngse xua lly

mol e sting to a

ny bo dy , p art ic ula

rl y children.” The trial c ourt allowed t h e St a te to a s k wh e th er H arr is knew about a ppellant’s robbe ry conviction and pa

role hold, and the following exchang e took place : Q. Ms. Harr is, are you aw ar e that y our son Roderick D emetry Reede rs was convicted of

the offense of r obbery

here in Be ll Count y

on Aug ust the 5th, 1996 and re c e ive d a

te n- y e ar s e nte nc e fo r t

hat? A. Ye s. Q. An d a

re y ou awa

re that th e re is a

pa ro le ho ld b a se d o n th a t of fe ns e ho ldi nghim in jail and has bee n since De cembe r the 14th of 2001? A. Ye s.
After Har ris’s testimony , appellant took the stand to testify , in part explaining his ea rlier c onviction and his strug g les with drug abuse a nd addiction. He te stified that the robbe ry conviction arose when he dr ov e a

c ar f or so me on e e lse wh o ro bb e d a sto re . At the tim e of the ro bb e ry , h e wa s a dd ic te d to drug s. Appellant’s attorney also asked hi m ab out an ea rlier c onviction from 1990 for dr ug po sse ssi on , a

nd a pp e lla nt t he n te sti fi e d th a t w hil e he wa s a n inf or mant fo r E dd s, he te sti fi e d a g a ins t a fr iend of the complainant’s mother. He testified that the complainant’s a lleg ations were false a nd said that the only

rea son he could imag ine for he r alleg ations was re taliation. The State then qu e sti on e d a

pp e lla nt exte ns ive ly a

bo ut his his tor

y of dr ugus e in t

he e arl y 19 90 s and

his wo rk wi th Edds, and then asked appellant a series of questions, attempting to re but appellant’s a ssertion that he wa s only

the driver

and did not commit the robbery itself. Part of appellant’ s closing statement made the a

rg ument t hat the cha

rg es must be fa lse bec ause he would not have molested the4

complainant with his stepdaug hter a nd mother nea

rby and while on pa

role be cause he wa s try ing very hard to comply

with his parole conditions. The State br iefly ref err ed to the robbe ry

conviction,
as s er t i n g t h at ap p el l an t ’s v er s i o no f t h e e v en t s s u rr o u n d i n g t h e r o b b ery k ep tch an gi n g. On appe al, appe llant argues t hat “the only char acte r trait in issue” wa s his mother’s opinion that appellant would not “mess wi t h a littl e child like this.” He argues that his robber y conviction was irrele vant and that the State’s questioning forc ed him to take the stand to e x plain the circ umstances surrounding the robber y conviction. Appellant argues he was ha rmed by this error, as evidenced by a note sent by the j ury during deliberations, asking whe ther it should only consider the evidenc e of the night of the allege d offe nse “or the charac ter iss ue.” The State ar g ues that the questions a sked of Har

ris wer e prope r to dispel any false impre ssion left by

her te stimony

on direc t examination about appellant’s long stint in jail befor e trial. The S tate further a rg ues that the issue of c ha ra c te r w a s r a ise d w he n a

pp e lla nt a sk e d h is moth e r if he ha d “ the kin d o f c ha ra c te r t hat w ou ld mess with a little child like this ” bec ause a ppellant did not limi t his question to s exual activity . The State also asser

ts that be cause appellant took the stand to e x plain his prior conviction, he w aived a ny
e rr or fr om t he qu e sti on s a sk e d o f h is m oth e r r e g ard inghis pr ior c on vic tio n. Ap pe lla

nt a nd the Sta te bo th s pe nt c on sid e ra

ble tim e dis c us sin g a

pp e lla nt’ s h ist or

y wi th d ru g s and wo rk a s an in for mant, with appellant arguingthat his work as a n informant made him a targ et for r etaliation by the
c o mp l a i n an tan d

h e r m o t h e r m an y ye ar s l a t e r

an d t h e S t a t e ar g u i n g t h a ta

p p e l l an t ’ s d r

u g h i s t o r y, pr ior c on vic tio ns , a

nd wo rk a s an in fo rm ant s ho we d th a t he wa s n ot t ruthf ul. A witness who testi fies about a defenda nt’s g ood char acte r m ay be cr oss-examined wi th r e le va

nt a nd sp e c if ic ins tanc e s o f m isc on du c t th a t mi g ht a ff e c t th e wi tne ss’ s o pin ion . T e x. R.Rule 405 does not distinguish betwee n opinion and reputa tion testim ony . W

ils on v . S tat e , 2 71 S.W. 3d

34 6, 35 0 n .4 (T e x. Cr im. Ap p. 20 02 ); see Tex. R. Evi d
. 4 0 5
. Ho we ver, “ the better prac tice is to follow the traditional method of impeach i ng opinion witnesses with ‘did y ou know’ questions and re putation w itnesses with ‘ have y ou hear d’ questions.” W ilson , 71 S.W .3d at 350 n.4; se e Ru tle dg e v . S

tat e , 749 S.W .2d 50, 52-53 (Te x . Crim. App. 1988) (pre -rule 405 c ase discussing when “ have you hear d” questions may be aske d of cha

rac ter witnesse s). 5 Evid. 405(a)
. Charac ter evidence can be elicited either throug h a witness’s opinion testimony or by t e s t i m o n y a

b o u t a d e f

e n d an t ’ s r e p u t a t i o n i n t h e c o m m u n i t y. W ils on v . S tat e , 71 S.W .3d 346, 350 2 (Tex. Crim. App. 2002). Although a defendant’s tendencie s towards pedophilia or sex ual abuse of a child ar e not “true c ha ra c te r trait[s] ,” a de fenda nt may brin g forth evide nce a

bout “the more g ener al charac ter trait for ‘safe and mora l treatment of c hildren.’” W he e le r v . S

tat e , 67 S.W .3d 879, 882 n.2 (Tex. Crim. App. 2002). To “prof fer evidenc e of his go o d ch ar ac ter (or propensity

) for moral and sa fe r elations with small children or young g irls,” the def endant must lay a pre dicate that the witness is familiar with the defe ndant’s re putation or the fa cts on which the w itness’s opinion is based, and the witness may testify only as to his or her “ opinion concer ning this cha

rac ter tra it or [t he defenda

nt’s] gene ral re putation in the community conce rning this trait.” Id
. a t8 8 2

- 8 3 n . 3
. If a def endant make s such a showingand pre sents opinion or reputation testim ony as to his char acte r for mora l and safe relations with children, the witness may be cr oss-examined on specific instances of ba d c on du c t if

the ba d c on du c t is “ relev ant to the character traits at issue ” and ha s a ba sis in f a c t. W ilson , 71 S.W .3d at 350-51 (e mphasis added)
.

The State spends a g reat de al of time attempting to explain how appellant’s que stion to his mother of whether appellant would “mess with a littl e child like this” should b e considered a question about a

ppellant’s cha

rac ter in g ener al. The State parse s out “ mess with,” citing to case s6

in which the phra se is used to r efe r to non- sexual be havior, and then explains that a “ child like” the complainant can be “messed with” in a ny number of way s, from assa ultive conduct like robbe ry or being pushed to the g round to sexual conduct such a s was at issue in this case . We have r eviewe d the State’s ar g ument and believe it to be disingenuous. Rea d in context, t he question aske d of appellant’ s mother, “doe s he have the ki nd of charac ter that would mess with a little child like this,”
c le arl y inq uir e d a s to wh e the r she be lie ve d he r son ha d the kin d of ch ara c te r that w ou ld l e a d h im t o eng ag e in se x ual behavior with a child and was immediately followed by the question, “Ha

ve y ou
ever in y our life he ard of

him doing any

thing like this to any

body ? ” “Me ss with,” as used i n the question, clea

rly ref err ed to the kind of be havior at issue, that is, inappropriate se x ual behavior, as furth e r s h o w nb y

th e f o ll o w - u p qu e s ti o na

b o u t w h e th e r

H ar r is h a d e v e r h e ar d o f a p p e ll an t d oing “any thing like this” with any one else. I n other words, appellant’s que stion is m ore r easona bly rea d as askingwhether

appellant would “ mess like this” with a child, not whether he would “me ss with,” in a g ener al assaultive wa

y , a “child like” the complaina nt. There fore , appellant’ s question inquired into Harris’s opinion as to appellant’s charac ter for “mora l and safe relations with small children or y oung girls,” not his ge nera l char acte r. See W heele r , 67 S.W .3d at 882. B eca use appe llant’s question inquired about this particular trait, the State’s questions re lated to his robber y conviction
wer e not rele vant to the trait at issue and we re not prope r impeac hment questions. See W ilson , 71 S.W. 3d a t 35 1; see also Rutledge v . S tat e , 749 S.W .2d 50, 53 (Tex. Crim. App. 1988) (pre -rule 405
case in which witness testified about “persona l and work relationship” with defe ndant; “‘ha ve y ou he ard ’ qu e sti on s c on c e rn e d [de fe nd ant’ s] re pu ta tio n fo r ill e g a l se xua l c on du c t wi th c hil dr e n a nd did not refe r to ac ts inconsistent with t he cha rac ter tra its that the witness testified about”).T h e St a te a ls o ar g u e s th a t a p p e ll an t’ s qu e s ti o n s a

b o u t h o w lo n g h e h a d

b e e nin ja il “ on 3 these c harg es” a

nd “on this stuff” g ave the impression that he had be en in jail for a bout two y ear s due solely

to the indece ncy

char g es. Se e W

hee le r v . S

tat e , 67 S.W .3d 879, 885 (Tex. Crim. App. 20 02 ) ( “ Th e State ’s c ro ss- e xami natio n w a s a lso pe rm iss ibl e to c or re c t th e fa lse imp re ssi on

that Ms
. Br umley ’s testimony

clea rly left with the jury

conce rning appellant’ s risk of abuse .”). 7 Howeve r, althoug h the State’s questions about appe llant’s robber y conviction wer e
no t r e le va nt t o th e c ha

ra c te r t ra it t e sti fi e d to by

Ha rr is, any erro r in th ose q

ue sti on s w a s h arm le ss beca use, as discusse d below, evide nce of the robbe ry conviction was pr operly

admitted later, dur ing
a p p e ll an t’ s te s ti mo n y an d c r o s s - e xa mi n a ti o n . A p p e ll an t to o k th e s ta n d an d te s ti f

ie d about the robber y , explaining that he was strugg ling with drug addiction at the time and that he had only driven the ca r and did not commit the robber y himself. Thus, the State ar g ues, appe llant waived a ny err or, pointing to the g ene ral rule that a def endant wa ives any

err or in the admission of evidenc e if the
same e vidence is offer ed at a nother point in trial by

the def endant himself. Se e Le da yv . S tat e , 983 3 S.W .2d 713, 718 (Tex. Crim. App. 1998). Howeve r, an e x cep t i o n t o that rule a rises whe n the defe n d an t ’s t es t imony

is impelled by

the State’s introduction of the ina dmissibl e evide nce. Id . at 718-19. In such a case , the State must prove that it did not impel the testimony , and we look f or (1) evidenc e that the de fenda nt’s attorney

would not have c alled the d ef en d an t to testify

but for the
ov e rr uli ngof the ob

je c tio n to the e vid e nc e ; (2 ) e vid e nc e that th e de fe nd ant w ou ld h a ve te sti fi e d in the same ma

nner but for

the evidenc e; (3) other evidenc e of g uilt and the streng th of that evidenc e;
and (4) oth e r e vid e nc e to w hic h th e de fe nd ant d id n ot o bje c t th a t w ou ld h a ve ind uc e d th e same testimony from the de fenda

nt. Id . at 719 (quo t i n g Sh e rlo c k v . S tat e , 6 3 2 S. W. 2 d

6 0 4 , 6 0 7 ( T e x. Crim. App. 1982)).8 We must t here fore determine whether appellant’ s testimony

about the robbe ry conviction was i mpelled by the State’s improper

questions asked of H arr is. Appellant testified at leng th about the robbe ry and its surrounding circ umstances. How ever , his tes t i m o ny went fa r bey ond explaining the robbe ry co nv ic tion. Appellant also explained his role in Edds’s investigations and the r esulting c onvictions, testified that he did not touch the complaina nt, describe d his version of t he eve n in g ’ s e v e n ts , an d a s s e rte d th a t h e b e li e v e d

h e h a d b e e ns e t u

p b y th e c o mp la inant’s mother, who a

ppellant asser

ted might still be harbor ing a g rudg e ag ainst him for his role in sending a fr iend of he rs to jail. I t does no t ap p ea r t h at appellant did not intend to testify and instead w as forc ed to t ak e t h e stand to explain the robber y conviction, nor doe s it appear that appellant’ s testimony would have be en ver

y differ ent had the State not a sked Ha rris about the r obbery
c on vic tio n. F ina lly , o nc e a pp e lla nt t oo k th e sta

nd to t e sti fy , th e State c ou ld have imp e a c he d h is te sti mony by int ro du c inge vid e nc e that he ha d b e e n c on vic te d of ro bb e ry , a fe lony of fe ns e . T e x. R. Evid. 609(a) (evide nce of witness’s prior c onviction “shall be a dmitted . .
. if the crime w as a f elony or in v o l v ed m o ral turpitude” and probative value outwe ighs pr ejudicial ef fec t). Thus, eve n if the State h a d n o t r a is e d

th e is s u e o f

a p p e ll an t’ s r o b b e r

y c o n v ic ti o nd

u r in g H ar r is ’ s te s ti mo n y , the conviction was a

proper issue to be explored during appellant’ s testimony . We theref ore hold that any err or in the State’s questions of Har ris was waived by appellant’ s later testimony . Fur thermore , e ve n if we a ssume that a

pp e lla nt did no t wa ive his c omp la int and that it wa s e rr or to a llo w t he State to a sk Ha rr is i ts r ob be ry -r e la te d q

ue sti on s, the e rr or

wa s h arm le ss. To mandate reve rsal, a non-constitutional err or m ust aff ect a defe ndant’s substantial rig h t s . Tex. R. App. P . 44.2(b). A substantial r ight is af fec ted if an e rror

had “a substantial and9

injurious eff

ect or influence in determining the jury ’s ver dict.” Lop e z v . S tat e , 990 S.W .2d 770, 777 (T ex . Ap p . —

Au s t i n 1 9 9 9 , n o p et
. ) ( qu o t i n g Kin g v . S tat e , 953 S.W .2d 266, 271 (Tex. Crim. App. 19 97 ))
. I f ev ide nc e is er

ro ne ou sly a dmi tte d, we mus t det e rm ine wh e the r it ac tua lly c on tr ibute d to the jury ’s ver dict. Id . at 77 7- 78 . In cond uct ing a ha rm ana ly sis , w e re vie w t

he re c or d a

nd a sk whether the er ror ha d more than a

slight influenc e on the ve rdict. Id . at 778. On the nig ht in que sti on , the c omp la ina nt, S.L ., sp e nt the nig ht at a pp e lla nt’ s h ou se with her fr iend, appe llant’s stepdaug hter, S
. S
. T h e two g irls and appe llant were in a bedr oom watchinga movie, and S.S. testified that she fe ll asleep for a fe w minutes while ly ing on a ppellant’s l egs; S.L . was lying on the floor and S.S. and appe llant were on the bed. S.S. testified that as she
was drifting off to slee p, she hea rd appe llant saying some thing a bout how she and S.L . should not let boy s touch them. S.S. di d not hear any thing or notice any

thing that made her

believe some thing had happe ned betwe en S.L . and appe llant. She also testified t hat t he nex t morning , S.L ., who has asthma, aske d to go home ear lier than usual be cause her c hest was hur ting a nd looked like she mig ht cry . S.L
. testified that during the movie, appellant talked about “[h] ow boy s are immature and the y do n’ t kn owho w t o to uc h g ir ls in the ri g ht spo ts” a nd that late r, wh ile S.S. wa s sle e pin g , he pu t hi s hands under

S.L .’s shirt and bra as she sat on the floor. In the morning , she aske d to go home , telling S.S. i t was bec ause he r asthma wa s bothering her.

Ap pe lla nt t e sti fi e d a

bo ut h is wo rk w ithEd ds a s a n in fo rm ant a

nd wi tne ss a nd sa id he helpe d send at lea st one of S.L .’s mother’s friends to jail. Appe llant also testified at leng th about his str u ggl es wi t h d rug addiction and his history of drugabuse a

nd drug dealing . Appellant’s robber y conviction was me ntioned when a ppellant explained the circ um s tance s surrounding the10

r o b b e r y. H e t e s t i f

i e d t h a th e w a s o n l y t h e dr i v e r f o r t h e r o b b e r

y an d d e n i e d c o m m i t t i n g t h e r o b b e r y,
say ingthat th e pe rs on

wh o c omm itt e d th e ro bb e ry bo rr ow e d a

pp e lla nt’ s ja c ke t and

hat to co mmi t the ro bb e ry . App e lla

nt w a s o n p aro le fo r t

hat c on vic tio n and we ari ng a le g mon ito r o n th e nig ht i n question. Appellant denied touching S.L ., saying, “I sure g ot e noug h sense to know wi t h a leg monitor on if I rea ch down there and touch this c hild, I could g et life in prison . . . . I would have to b e c ra zy to do that.” Ap pe lla nt be lie ve d tha t S.L .’ s moth e r ha d set him up in r e ta liatio n f or his work a s an informa

nt and witness. Appellant points to a note sent by the jury during deliberations, which asked, “ Do we
o n l y c o n s i d e r e v i d e n c e o n l y o f A p r 2 9 , 2 0 0 1 [ t h e d a t e o f t h e a l l e g e d o f f e n s e ] o r t h e c h ar a c t e r

i s s u e ?” He a rg ues that th e j u ry ’s not e is evidenc e that he w as har med by the questions about the robbe ry conviction. We disag ree . Viewe d as a w hole, the re cord c ontains signific ant evidenc e about appellant’ s char acte r and history with drug addiction, dea ling, a nd use. Appellant admitted to using and dea ling dr

ug s and that he w as involved in the robb ery , althoug h he testified that his fr iend committed the offe nse. Appe llant also testified ab o u t h is work with Edds as an infor mant and te sti fy ingwi tne ss. He te sti fi e d th a t he did no t to uc h S. L ., and

a sse rt e d th a t S. L .’ s mot

he r h a d s e t hi m up to ge t reve ng e for

his work with E dds. The State argued that appellant was not a truthful person, as evide nced by

his criminal history

and his dec ision to act as an infor mant. The robbe ry

conviction was discussed mostly

during the S tate’s cross-examination of appellant, when the State pointed out inconsistencies in appe llant’s testimony and attempted to show that appellant c ommitt ed the r obbery himself and then lied a

bout i t during this trial. I t is also important to not e that evide nce of the11

robber y conviction would have been admitted during appellant’ s testimony even if the State had not raised the subject with Har ris. See Tex. R. Evi d. 609(a)
. We hold that the two q u es t i o n s asked of Har ris by the State, when vie wed in the context of t he entire rec ord, could not have had m ore than a slight impac t on the jury ’s ver dict and did not affe ct appe llant’s substantial rig hts. See Lopez , 990 S.W .2d at 777-78.

We o ve rr ule a pp e lla nt’ s is su e on

a pp e a l and a ff ir m th e tr ia l c ourt ’s jud g me nt.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice L aw, Justi ces Patter son and Pury ear Affir med Filed: September

14, 2005 Do No t Pu

bli sh