DIXON v. STATE

BAIRD, Judge.

Appellant was convicted of incest, indecency with a child, and aggravated sexual assault and sentenced to 25 years on each of the first two offenses and 45 years on the latter. Tex. Penal Code Ann. §§ 25.02, 21.11, 22.021. The Court of Appeals affirmed.Dixon v. State, 923 S.W.2d 161 (Tex.App.-Fort Worth 1996) (Dixon I). This Court vacated that judgment and remanded the case to the Court of Appeals. Dixon v. State, 928 S.W.2d 564 (Tex.Cr.App. 1996) (Dixon II). On remand, the Court of Appeals again affirmed.Dixon v. State, 955 S.W.2d 898 (Tex.App.-Fort Worth 1997) (Dixon III). We granted review of that decision to determine if the Court of Appeals erred in holding that a defense witness could be properly impeached by evidence of a pending felony, and whether that error, if any, was preserved for review.

During his case-in chief, appellant called Elmer Pelfrey as a witness. At the time of his testimony, Pelfrey was under indictment for two felonies pending in the same court as the instant case. Before Pelfrey testified, his attorney, Bradford Shaw, presented the following motion:

My name is Bradford Shaw. I'm an attorney for Elmer Pelfrey. He has been charged with two felony indictments in this particular court, and I would motion the Court, at this time, to enter an order prohibiting the State's attorneys from asking him any questions concerning his guilt in these two offenses that are currently pending, based on his Fifth Amendment rights and under Article I, Section 10 of the Texas Constitution.

That would also include asking whether or not he is charged with these offenses. As you are well aware, he is presumed to be innocent, and that the rules of evidence provide that a person may be — testimony may be impeached by the admission or the asking of a felony conviction. And in this instance, he has not been convicted. These cases are pending. We would ask the Court enter an order in accordance with my request.

The trial judge denied Pelfrey's request based upon "bias and motive." When the State attempted to question Pelfrey regarding his two pending charges, appellant objected and the trial judge stated, "[f]or the reasons stated previously, I will overrule the objection."

The Court of Appeals originally held appellant had failed to properly preserve error by his general objection.

Based on these facts, we find that Dixon waived his complaint about the admission of Pelfrey's pending charges. First, to the extent Dixon is relying on the objections of another attorney to preserve his present complaint, his reliance is misplaced. See Martinez v. State, 833 S.W.2d 188, 191 (Tex.App.-Dallas 1992, pet. ref'd) (a defendant who has not voiced his own personal objection or adopted that of his codefendant is foreclosed from relying on the objection of his codefendant to preserve error). There is no indication in the record that Dixon adopted or intended to adopt the objections urged by Pelfrey's attorney in the hearing held immediately before Pelfrey's testimony. Therefore, Dixon cannot use an objection that he did not advance at trial to preserve his complaint for appellate review.

On discretionary review, we considered the preservation issue. Dixon II, 928 S.W.2d at 564. In a unanimous decision, we held:

In his petition for discretionary review, Appellant submits that the Court of Appeals failed to recognize that under this Court's opinions in Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App. 1977) and Lankston v. State, 827 S.W.2d 907 (Tex.Cr.App. 1992), a general objection will preserve error if its grounds are apparent to the trial judge. He argues that because the trial court overruled the objection and ruled the impeachment proper "for the reasons stated previously," it understood the grounds for Appellant's objection to be the same as those previously voiced by Pelfrey's counsel.

We agree. Since the trial court explicitly overruled Appellant's objection for the reasons stated previously, i.e., the reason given for overruling Pelfrey's objection, the judge was treating Appellant's objection as an adoption of Pelfrey's. Therefore, the Court of Appeals erred by holding that error was not preserved because counsel's objection was too general to apprise the trial court of its grounds.

On remand, (Dixon III), the Court of Appeals again determined appellant had failed to preserve error. The remand decision was based on the ruling of the trial court when appellant's objection was made. The Court held:

Although Dixon argues on appeal that the evidence is inadmissible under Rule 612(b), neither Dixon's nor Pelfrey's counsel objected on that ground either during the hearing or during the State's cross-examination of Pelfrey. Even after the trial court informed defense counsel that it would admit the evidence to show bias or motive, no objection was made to the court's ruling on the basis of Rule 612(b). When the evidence was admitted, Dixon's counsel made only a general objection based on Rule 608(b) grounds.

We begin our review by determining whether appellant preserved error, if any.

To preserve error for appellate review, the complaining party must make a timely, specific objection. Armstrong v. State, 718 S.W.2d 686, 699 (Tex.Cr.App. 1985). The objection must be made at the earliest possible opportunity. Marini v. State, 593 S.W.2d 709 (Tex.Cr.App. 1980). The complaining party must obtain an adverse ruling from the trial court. DeRusse v. State, 579 S.W.2d 224 (Tex.Cr.App. 1979). Finally, the point of error on appeal must correspond to the objection made at trial. Thomas v. State, 723 S.W.2d 696 (Tex.Cr.App. 1986).

In Dixon II, we determined appellant's objection to the State's cross-examination of Pelfrey regarding his pending charges adopted the objection lodged by Pelfrey's attorney. Dixon II, 928 S.W.2d at 564-65. Appellant specifically objected to:

1. Asking Pelfrey any questions concerning his guilt in these two offenses that are currently pending,

2. based on Pelfrey's Fifth Amendment rights and

3. under Article I, Section 10 of the Texas Constitution.

4. That would also include asking whether or not Pelfrey was charged with these offenses.

5. Pelfrey is presumed to be innocent, and

6. the rules of evidence provide that a person may be testimony may be impeached by the admission or the asking of a felony conviction.

7. And in this instance, Pelfrey has not been convicted. These cases are pending.

Appellant's objections were based on two distinct rules of evidence. First, by requesting the court not to go into the fact Pelfrey had been charged with two felonies, Tex. R. Crim. Evid. 608(b), wherein specific instances of conduct may not be inquired into on cross-examination, was implicated. The rule provides:

Specific instance of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor provided by extrinsic evidence.

Tex. R. Crim. Evid. 608(b).

Second, because Pelfrey had not been convicted, Tex. R. Crim. Evid. 609, which provides only for impeachment by evidence ofconviction of a crime, was implicated.

From the record, it is clear the trial judge was sufficiently apprised that these were appellant's objections. See, Dixon II, 928 S.W.2d at 564 (quoting Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App. 1977), and Lankston v. State, 827 S.W.2d 907 (Tex.Cr.App. 1992) (a general objection will preserve error if its grounds are apparent to the trial judge) (emphasis supplied)). Appellant's objections were timely and the trial judge overruled the objections, thus under Tex. R. App. P. 52, those objections were sufficient to preserve this issue for appellate review.

Having determined the error was preserved for appellate review, we now address the merits of the issue. The State argues the Tex. R. Crim. Evid. 612 trumps Tex. R. Crim. Evid. 608 or 609. The Court of Appeals, relying on two of their own decisions, held "the plain language of Rule 612(b) creates an exception to Rule 608(b) where the evidence shows bias or a motive for the witness to testify untruthfully." Dixon III, 955 S.W.2d at 900. However, neither case is on point. The first case,Sparks v. State, 943 S.W.2d 513 (Tex.App.-Fort Worth 1997), dealt with the propriety of the State's cross-examination of an expert witness with prior testimony from another trial. And,Thomas v. State, 897 S.W.2d 539 (Tex.App.-Fort Worth 1995), was a case of sexual assault where the defendant claimed the sex was consensual. The Court of Appeals reversed the conviction because the trial judge erred in prohibiting cross examination of the complainant regarding the jealous nature of her boyfriend. While the Court of Appeals correctly determined this was an appropriate area of cross-examination, Thomas has absolutely nothing to do with the instant case.

The Rules of Evidence provide specific and general directives and are meant to work in conformity. Should an inconsistency arise, it should be removed by reasonable construction. Simply stated, general rules are not meant to supercede specific rules. Under Tex. R. Crim. Evid. 612, the parties are allowed to question a witness regarding a bias or interest. This is a general rule because

The possible reasons that might cause a witness to be biased or interested in the outcome of a particular lawsuit are as numerous and varied as the infinite range of human emotions and motives. Some common forms of impeachment to show bias include racial prejudice, family relationship, employment, personal friendship or enmity, prior business dealings, prior "bad blood," threats, and many others. A witness's bias may be directed toward a particular person or it may be that he harbors a general bias against a group or class of which the opposing party is a member. (footnotes omitted). . .

Cathleen C. Herasimchuk, Texas Rules of Evidence Handbook § 613(b), p. 611-612 (3d ed. 1998). In contrast, Rules 608(b) is a specific rule relating to "specific" instances of conduct. Similarly, Rule 609 is a specific rule which provides an exception to Rule 608(b) and provides for impeachment by evidence of a criminal conviction.

In the instant case, the trial judge overruled appellant's objection under Tex. R. Crim. Evid. 608(b) and 609 under the guise of allowing impeachment under Tex. R. Crim. Evid. 612, to show motive or bias. However, the State's cross-examination was merely to bring out evidence of the pending charges; the State never questioned Pelfrey regarding his possible bias or motive. Consequently the cross-examination was specifically prohibited by Rules 608(b) and 609.

Accordingly, we hold the Court of Appeals erred in holding the trial judge did not err in permitting the State to cross-examine Pelfry as to his pending charges. To hold otherwise would eviscerate Rules 608(b) and 609. The judgment of the Court of Appeals is reversed and the case remanded to that Court for a harm analysis. Tex. R. App. P. 44.2.

BAIRD, Judge.

BAIRD, Judge.

The State has asserted five grounds in a motion for rehearing requesting the Court to reconsider its December 16, 1998, opinion on original submission. We granted rehearing on grounds one through three. We will sustain grounds one and two in the State's motion for rehearing, dismiss ground three in the State's motion for rehearing, overrule ground for review one in appellant's discretionary review petition, dismiss as improvidently granted ground for review two in appellant's discretionary review petition, and affirm the judgment of the Court of Appeals.

The procedural history and facts of this case are set out in the opinion of the Court of Appeals. Dixon v. State, 955 S.W.2d 898, 899 (Tex.App.-Fort Worth 1997). The prosecution sought to impeach defense witness Pelfrey with two pending felony indictments. Id. Appellant objected under Tex.R.Crim.Evid. 608(b) claiming that only "final felony convictions may be used to impeach testimony." The trial court permitted the impeachment under Tex.R.Crim.Evid. 612(b) to show "bias and motive." Dixon, 955 S.W.2d at 899.

On direct appeal, appellant claimed the impeachment was improper under Rule 612(b). The Court of Appeals decided appellant's Rule 608(b) trial objection failed to preserve his Rule 612(b) claim for appeal. Dixon, 955 S.W.2d at 200. We exercised our discretionary authority to review this decision (ground for review one). The Court of Appeals also decided the impeachment was proper under Rule 612(b). Dixon, 955 S.W.2d at 200. We exercised our discretionary authority to review this decision (ground for review two). The Court's December 16, 1998, opinion on original submission sustained both grounds for review, reversed the judgment of the Court of Appeals, and remanded the case there for a harm analysis.

The Court's opinion on original submission decided appellant's trial objection under Rule 608(b) preserved a Rule 608(b) claim for appeal. The Court's opinion on original submission then decided the impeachment was improper under Rule 612(b) because the prosecution "never questioned Pelfrey regarding his possible bias or motive." The Court's opinion on original submission then decided the impeachment was also improper under Rule 608(b) — a proposition with which everyone including the trial court did not dispute. In this way the Court's opinion on original submission managed to avoid addressing the preservation issue presented in ground for review one of appellant's discretionary review petition.

Of greater concern is some language in the Court's opinion on original submission which suggests an inconsistency exists between Rule 608(b) and Rule 612(b) when it comes to impeaching a witness with specific instances of conduct. This language might lead some within the bench and bar to conclude erroneously that when specific instances of conduct are used for impeachment purposes, the "specific" provisions of Rule 608(b) control over the more "general" provisions of Rule 612(b) even if the specific instances of conduct are otherwise admissible under Rule 612(b) to show bias and motive. The opinion of the Court of Appeals also contains some language saying Rule 612(b) is an "exception" to Rule 608(b). Dixon, 955 S.W.2d at 900.

While Tex.R.Crim.Evid. 608 and Rule 612(b) deal with the same general subject matter of impeaching witnesses, they nevertheless are distinct rules which serve different purposes. Tex.R.Crim.Evid. 608(a) says how to impeach a witness's general character for truthfulness. Rule 608(b) expressly bars impeaching a witness's general character for truthfulness with specific acts of conduct "other than conviction of crime as provided in" Tex.R.Crim.Evid. 609.

Rule 612(b) permits impeaching a witness by proof of "circumstances or statements" showing the witness's bias or interest in a particular case. Unlike Rule 608(b), Rule 612(b) does not expressly bar the use of specific instances of conduct to show bias or interest.

"Rule 608 does not bar evidence of specific acts not resulting in conviction as an impeachment device in all instances. It proscribes such proof only when offered for a particular purpose: to establish a witness's character for veracity so the jury may infer that he is more or less likely to be testifying truthfully. Specific acts may, however, be proved for other purposes. For example, a witness's acts may reveal a bias toward or against one of the litigants."

So Rule 612(b) is different from Rule 608. Rule 608 addresses a witness's general character for truthfulness. Rule 612(b) addresses a witness's trustworthiness in the particular case because of some bias or interest.

"Unlike attacks on a witness's character, which reflect on the witness's truth telling tendencies generally, attacks concerning bias or interest relate only to specific litigation or parties. The impeaching party must attempt to show that the witness's attitude is such that he is likely to favor or disfavor a particular litigant's position for reasons unrelated to the merits of the suit."

Therefore, our opinion on original submission incorrectly suggested Rule 608(b) controls over Rule 612(b) when a party seeks to impeach a witness with specific instances of conduct to show bias or interest and the Court of Appeals also incorrectly suggested Rule 612(b) is an "exception" to Rule 608(b). These are distinct rules which serve different purposes.

It also is noteworthy the Court's opinion on original submission relied on a Texas Evidence treatise which the opinion on original submission apparently considered to be persuasive, learned and authoritative. Cathleen C. Herasimchuck, Texas Rules of Evidence Handbook, Section 613(b), at 611-12 (3d ed. 1998). After our opinion on original submission was handed down, the author of this treatise filed an amicus curiae letter brief stating this treatise was "never intended to convey that Rule 612 is somehow a `general' rule of impeachment while [Rule 608 was] more `specific.'" This letter brief also says the treatise states precisely the opposite of what our opinion on original submission decided.

Consistent with the foregoing discussion, the letter brief states:

"What I intended to say was that we have various means of impeachment for credibility. One of those means is by demonstrating that the witness, as a general proposition (on Monday to the cleaners, on Tuesday to the bank, on Wednesday to the police, on Thursday in Court) is not a truth teller. He should not be believed whenever he opens his mouth. One way of demonstrating that general lack of credibility is by showing that he has a poor reputation in the community for truth telling; another is that a specific character witness testifies that, in his opinion, the fact witness is not a truthteller, is not worthy of belief. These two types of general credibility impeachment are explicitly permitted under Rule 608(a). A third way of attacking the general credibility of a witness and demonstrating that he is simply never to be believed on any day on any topic is to prove that he did not tell the truth on certain specific occasions, e.g. he lied to the IRS in 1985, he lied to his wife in 1997 about an extramarital affair, he lied to his boss about making personal phone calls on the company phone in 1995. Under Federal Rule 608(b), the trial judge has discretion to allow this third type of impeachment — all those little lies out on the street that paint a picture of a generally untruthful person. The drafters of the original Texas Rules of Evidence, both Civil and Criminal, considered this `greasy kid stuff' that was all too likely to distract the jury from its proper function and take up more time than the proposition was worth. It was basically character assassination. Under [Rule 608(b)], it is prohibited. A fourth, entirely distinct, way of showing that a person is generally unworthy of belief is to prove that he has previously been convicted of a felony or certain misdemeanor offenses which presumably reflect upon his character for truthfulness. That general mode of impeachment is covered by Rule 609 with all its caveats. Each of the four major modes of impeachment for general lack of credibility is governed by the specific evidentiary rules and/or precedent relating to those specific modes.

" [Rule 612(b)] deals with any (sic) entirely different type of impeachment. Under this mode of impeachment, the fact witness might be the Pope or George Washington, or some other witness known far and wide for his probity, general honesty and truth telling. But, for some unique, special reason, he might have a particular reason to slant his testimony, unconsciously or consciously, for or against one party. Surely, if the defendant in a criminal case were the Pope's mother, bodyguard, banker, or favorite Archbishop, the jury is entitled to know that fact since it is a possible reason for the Pope to be a slightly less neutral observer in this case than in some other trial. For this reason, the right to impeach for bias and motive is especially significant in American jurisprudence.

"Under [Rule 612(b)], we still follow `Queen Caroline's Rule.' That is, in Texas we are still gentlemen and require the cross-examiner to ask the witness about the facts which might give rise to the motive or bias. We must ask the Pope, `Isn't it true that the defendant is your mother, bodyguard, banker or favorite Archbishop?' But that is all. It gives him an opportunity to deny, admit, or explain the factual basis for his possible bias. If the potential bias concerns a specific event or prior statements the witness has made, then we must also tell him where and when, and, if a statement, to whom the statement was made.

"Thus, [Rule 612(b)] deals with a specific reason why a witness might slant or shade the truth in this one instance while [Rule 608(b) deals] with the witness who, it is asserted, does not tell the truth as a general proposition. The rules do not deal with the same type of impeachment and should be considered as distinct and independent."

In this case appellant objected to the prosecution's cross-examination of Pelfrey under Rule 608(b) immediately before Pelfrey was called to the stand. Dixon, 955 S.W.2d at 899. The basis of appellant's Rule 608(b) objection was that only "final felony convictions may be used to impeach testimony." The trial court permitted the cross-examination under Rule 612(b) to show "bias and motive" which effectively was a ruling sustaining appellant's Rule 608(b) objection. Dixon, 955 S.W.2d at 899. Appellant made no further objection except for another general objection during the prosecution's cross-examination of Pelfrey which the trial court overruled "for the reasons stated previously." Dixon, 955 S.W.2d at 899. On appeal appellant claimed the trial court erred to permit the cross-examination under Rule 612(b). Dixon, 955 S.W.2d at 899.

On this record appellant failed to preserve the Rule 612(b) issue for appeal because his appellate complaint does not comport with his trial objection. See Broxton v. State, 909 S.W.2d 912, 918 (Tex.Cr.App. 1995) (to preserve error for appellate review, complaint on appeal must comport with objection at trial, and an objection stating one legal theory may not be used to support a different legal theory on appeal); Tex.R.App.Proc. 52(a) (to preserve complaint for appellate review, party must, among other things, present an objection stating the specific grounds for the ruling he desires). Based on the foregoing discussion about the distinct and different purposes served by Rule 608(b) and Rule 612(b), appellant's Rule 608(b) objection that "only final felony convictions may be used to impeach testimony" failed to articulate any kind of an objection under Rule 612(b). See Lankston v. State, 827 S.W.2d 907, 909 (Tex.Cr.App. 1992) (when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost).

In addition, the trial court effectively sustained appellant's Rule 608(b) objection when it initially permitted the prosecution's cross-examination under Rule 612(b) to show "bias and motive" and then later overruled appellant's general objection again "for the reasons stated previously." Dixon, 955 S.W.2d at 899. In other words, the trial court, recognizing the distinct and different purposes served by Rule 608(b) and Rule 612(b), agreed with appellant that the prosecution's cross-examination of Pelfrey was impermissible under Rule 608(b). After this, appellant pursued no other objection or complaint to an adverse ruling. See Rule 52(a) (to preserve complaint for appellate review, party must, among other things, obtain a ruling on his objection); cf. Cockrell v. State, 933 S.W.2d 73, 88-89 (Tex.Cr.App. 1996), cert. denied, 117 S.Ct. 1442 (1997) (to preserve appellate complaint about jury argument, party must pursue objection to an adverse ruling). On this record, appellant received all the relief he specifically requested when the trial court effectively sustained his Rule 608(b) objection. Cf. Cockrell, 933 S.W.2d at 88-89.

The judgments of the Court of Appeals are affirmed.