
    Rickey Lynn HARRISON, Appellant v. The STATE of Texas.
    No. PD-1226-05.
    Court of Criminal Appeals of Texas.
    Sept. 26, 2007.
    Rehearing Denied Dec. 19, 2007.
    Charles W. McDonald, Waco, for Appellant.
    Christy Barber, Asst. District Attorney, Waco, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion for a unanimous Court.

Appellant was convicted of manslaughter and injury to a child. The jury assessed Appellant’s punishment at fifteen years’ confinement for manslaughter and twenty years’ confinement for injury to a child. Appellant appealed his conviction, arguing that the trial court erred under Texas Rules of Evidence 404 and 405 by allowing the State to ask a defense witness “were you aware” questions about Appellant’s prior assault convictions.

The court of appeals agreed. Holding that the witness’s volunteered and nonre-sponsive opinion testimony that Appellant was a “good” and “sweet” person did not open the door to character evidence, the court reversed the judgment and remanded the case to the trial court. The State filed a petition for discretionary review, which we granted. We will reverse.

Background

Appellant was tried for murder and serious bodily injury of his eight-month-old son. The baby lived with the baby’s mother, grandmother, and mother’s brothers and sisters. On the night before the baby died, Appellant had stayed at the house and slept in the room with the baby and its mother. The mother testified that, after she put the baby to bed, she left Appellant in the room with the baby while she took a shower. While she was showering, she heard the baby crying. When she returned to the bedroom from the shower, the baby was having a hard time breathing and looked sleepy. A few minutes later, the baby vomited. During the night, the baby vomited twice more and fell out of the bed. The next morning, the grandmother took the mother to school while the baby was at home with one of his uncles. When the grandmother returned home, she and the uncle decided that they should take the baby to'the doctor, but the baby stopped breathing on the way there. After the baby stopped breathing, they stopped at a nearby police station and an officer attempted CPR on the baby. They called 911, and the baby was taken to the hospital where he was later pronounced dead.

A forensic pathologist performed an autopsy on the baby and testified that the baby had died of blunt force trauma to the abdomen, which could be caused by trauma such as a punch, kick or stomp, but not by a fall. The baby also had many older bruises and injuries. The pathologist estimated that the fatal injuries had occurred within fourteen hours of the baby’s death and that such an injury would likely cause a baby to cry, have difficulty breathing, vomit, and appear sleepy.

Appellant did not testify, but a statement he had made to police was admitted into evidence. In the statement, Appellant said that he used to play-fight with his son and would “softly hit him” in the body. The officer who took the statement testified that Appellant told him that he could have hit the baby too hard. Another officer testified that Appellant had mumbled, “I killed him,” under his breath while he was being taken to jail. That officer testified that, after booking Appellant, he asked Appellant, “Now you confessed to killing your son, didn’t you?” Appellant responded that he hadn’t said anything like that and didn’t know what the officer was talking about.

The defense called two child witnesses who testified that the baby’s mother’s youngest sister had told them that she killed the baby. The defense also called several witnesses who testified about Appellant’s relationship with his son. The final defense witness, Hazel Evans, testified as follows:

Q: Could you tell us how you know [Appellant]?
A: Well, I know [Appellant] through my son, Detrick Evans. They were good friends. He was a sweet person, he was a good person. He used to stay here nights at my house. He done watched my kids and I didn’t have a problem with him.
Q: [Appellant] stayed nights at your house?
A: Yes.
Q: Okay. And he’d watch your kids?
A: Uh-huh. He’s watched my kids before, played with them, everything.

After the defense concluded its direct examination of Ms. Evans, the State asked to approach the bench. The State argued that Ms. Evans’s statement that Appellant was a “good” and “sweet” person was character testimony and had opened the door to cross-examination about Appellant’s prior assault convictions. The defense countered that Ms. Evans’s statement had been confined to Appellant’s character around her children and did not open the door to Appellant’s prior assault convictions. After reviewing the testimony in question, the court overruled the defense’s objection. The State then posed several “were you aware” questions concerning Appellant’s prior assault convictions.

On appeal, Appellant argued that the trial court erred in allowing the State to ask questions concerning his prior assaults. In a criminal case, the general rule is that evidence of a person’s character is not admissible to prove conforming conduct. However, under Texas Rule of Evidence 404(a), a defendant may bring his character into issue by introducing character or reputation evidence. Once the defendant has done so, the State may offer rebuttal character evidence. Rule 405 describes the methods through which a defendant can offer character evidence and through which the State can offer rebuttal evidence. Proof may be made by testimony as to reputation or by testimony in the form of an opinion. Rebuttal evidence may be elicited in the form of “have you heard” or “were you aware” about specific instances of conduct inconsistent with the character trait brought into issue by the defendant. The purpose of permitting this cross-examination is not to discredit the person whose character is in issue, but rather to discredit the testimony of the character witness.

The court of appeals reversed the judgment and remanded the case, holding that the trial court committed harmful error by permitting the State to ask Ms. Evans “were you aware” questions. Harrison v. State, 2005 WL 2665421, at *9, 2005 Tex.App. LEXIS 8654 at *24 (October 19, 2005). The court framed the issue before it as “whether [Ms. Evans’s] volunteered and nonresponsive opinion testimony placed [Appellant’s] character at issue, thus opening the door for “were you aware’ questions.” Id. 2005 WL 2665421, at *7, 2005 Tex.App. LEXIS 8654 at *19. The court cited five cases from the 1980’s for the proposition that “[c]ourts [had] found similar witness testimony insufficient to place the defendant’s reputation at issue so as to allow the State to rebut with ‘have you heard’ questions.” Id. 2005 WL 2665421, at *7, 2005 Tex.App. LEXIS 8654 at *19-20 (citing Rutledge v. State, 749 S.W.2d 50, 51 (Tex.Crim.App.1988), Stephens v. State, 660 S.W.2d 85, 86-87 (Tex.Crim.App.1983), Nixon v. State, 653 S.W.2d 443, 444 (Tex.Crim.App.1983), Smith v. State, 763 S.W.2d 836, 840 (Tex.App.-Dallas 1988, pet ref'd), and Powell v. State, 663 S.W.2d 465, 466-67 (Tex.App.-Houston [1st Dist] 1983, no pet.)). The chief justice dissented, arguing that the trial judge did not abuse his discretion in permitting the questions and pointing out that the cases relied upon by the majority were decided before the Rules of Evidence were enacted. Id. 2005 WL 2665421, at *14, 2005 Tex.App. LEXIS 8654 at *25.

The State filed a petition for discretionary review, asking us to determine whether the court of appeals’s reliance upon Rutledge v. State, 749 S.W.2d 50 (Tex.Crim.App.1988) was appropriate in light of Texas Rule of Evidence 405(a), or whether the court of appeals erred in holding that the trial court abused its discretion by permitting the State to test the basis of Ms. Evans’s opinion that Appellant is a “good” and “sweet” person.

The State argues that Ms. Evans was a character witness for the defense and that her testimony that Appellant was a “good” and “sweet” person opened the door to rebuttal evidence by the State under Texas Rule of Evidence 405(a). The State asserts that the court of appeals erred in relying exclusively on pre-Rule 405(a) caselaw, including Rutledge, to support its decision.

Appellant responds that Ms. Evans’s testimony was innocuous and insufficient to place Appellant’s character in issue. In the alternative, Appellant argues that Ms. Evans’s statements, when viewed in the context of her entire testimony, are limited to the specific character traits of being a good father and being with children. Therefore, Appellant argues, the State’s rebuttal with prior violent acts did not relate to the pertinent character traits as required by the Rules of Evidence. At oral argument, Appellant argued that the prior assault convictions introduced by the State were not pertinent because they were violent acts toward adults, rather than violent acts toward children.

Analysis

The court of appeals framed the issue as “whether the defense witness’s volunteered and nonresponsive testimony nonetheless placed Harrison’s character at issue, thus opening the door for ‘were you aware’ questions.” Harrison, 2005 WL 2665421, at *7, 2005 Tex.App. LEXIS 8654 at *19. The court of appeals held that the testimony did not place Appellant’s character at issue through Ms. Evans’s testimony. The court stated that other courts have found similar witness testimony insufficient to place the defendant’s reputation at issue, citing Rutledge, 749 S.W.2d at 51, Stephens, 660 S.W.2d at 86-87, Nixon, 653 S.W.2d at 444, Smith, 763 S.W.2d at 840, and Powell, 663 S.W.2d at 466-67. These cases are not analogous to the case before us. In each of the cases, the questions were found to be improper because they were reputation questions asked of a character witness, not because the witness testimony was insufficient to place defendant’s character at issue. At the time these cases were decided, opinion witnesses could only be impeached with “did you know” questions, not with “have you heard” questions. See Smith, 763 S.W.2d at 843 (citing Rutledge, 749 S.W.2d 50). Further, each of these cases was decided before the Texas Rules of Evidence were adopted, so none address the proper use of rebuttal character evidence under Rule 405(a). The court of appeals did not note this important distinction in its analysis.

The Smith case is somewhat more applicable than the others. In Smith, one issue was the nonresponsiveness and volunteered nature of a witness’s statement. The direct examination of a defense eyewitness was focused solely on the events he had witnessed the evening of the crime. Smith, 763 S.W.2d at 840. On cross, the State questioned the witness about his ability to remember the events of that night and then asked the witness if he knew the defendant in the case. The witness responded, “Yes, ma'am. I’ve been knowing him for about a whole year. I have never known him to be in any kind of trouble.” Id. The defense immediately objected to the nonresponsiveness of the answer. The trial court permitted the State to continue, but when the State began a “have you heard” question, the defense again objected, and the court heard the objection outside the jury’s presence. Id. at 842. The defense argued that the non-responsive answer should be removed from the jury’s consideration. The trial court overruled the defense objection, and the State asked several “have you heard” questions of the witness. Id.

The court of appeals reversed the case and remanded for a new trial because the defense witness’s volunteered response did not open the door to “have you heard” questions. However, the court limited its holding to the facts of the case, explaining that the witness’s statement had not opened the door because: the defense counsel stated that he had instructed the witness not to volunteer any information; the defense tried to “shut the door” by requesting that the answer be stricken from the record and disregarded by the jury; and because the State improperly posed “have you heard” rather than “did you know” questions to an opinion witness. Smith, 763 S.W.2d at 843.

The Smith court’s reasoning for holding that the character of the defendant was not brought into issue by the nonrespon-sive statement does not apply to this case. None of the reasons listed by the Smith court for its decision are present in the case before us. The defense in our ease never stated that he had instructed the witness not to volunteer testimony, nor did he request that Ms. Evans’s testimony be stricken from the record and disregarded by the jury. Further, as stated above, in Smith, the State rebutted the witness’s nonresponsive opinion testimony with “have you heard” questions. In our case, the opinion witness was properly asked “did you know” questions.

In the case before us, the court of appeals stated that the issue was whether Ms. Evans’s opinion was volunteered and not given in response to the question posed by the State. However, none of the cases relied upon by the court of appeals support its holding that Ms. Evans’s non-responsive and volunteered testimony did not open the door to character evidence.

Under Rules 404 and 405, if the defendant offers evidence of his good character, the prosecution can introduce its own character evidence to rebut the implications of the defendant’s character evidence. There is no nonresponsiveness exception to this right. Ms. Evans offered evidence of Appellant’s character through her statement that Appellant was a “good” and “sweet” boy. Although Appellant did not intentionally elicit Ms. Evans’s character testimony, the nonresposiveness of Ms. Evans’s statement does not change the fact that it was character evidence offered by a defense witness. The trial court correctly permitted the State to rebut the character evidence introduced by Ms. Evans with the evidence of Appellant’s prior assault convictions and citations.

Conclusion

Because the court of appeals incorrectly analyzed the issue, the decision is reversed, and the conviction is upheld. 
      
      . All subsequent references to "Rule” or "Rules” refer to the Texas Rules of Evidence, unless otherwise stated.
     
      
      . "Were you aware” questions are more commonly phrased as "did you know.”
     
      
      . The State asked Ms. Evans whether she was aware that Appellant had been sent to juvenile detention after an arrest for assault in 2001, that he had been adjudicated for assault on a public servant at Waco High School in 2002, and that he had been given citations for disrupting class in 2002.
     
      
      . We do not address whether the outcome would be different if the defense had objected to the nonresponsive statement or asked that it be stricken from the record and removed from the jury’s consideration.
     