The Character Of The Matter: Texas Opinion Reveals Limits On Character Evidence Criminal Defendants Can Present

Like their federal counterparts, Texas Rules of Evidence 404(a)(1)-(2) create a Pandora's box with regard to propensity character evidence and place it firmly in the hands of the criminal defendant. If the defendant does not want the prosecution to present propensity character evidence against him, he merely needs to refrain from presenting any such evidence on his own behalf. Conversely, once the defendant presents propensity character evidence on his own behalf, he opens the door (box) for the prosecution to respond it kind. As the recent opinion of the Court of Criminal Appeals of Texas in Ex parte Miller, 2009 WL 3446468 (Tex.Crim.App. 2009), makes clear, however, there are limits on the types of character evidence that a criminal defendant can present at trial.

In Miller, Carl Miller was charged with murder for the stabbing death of Terry Burleson, a bail bondsman and member of a motorcycle club called "The Humping People." At trial, the evidence was undisputed that Miller killed Burleson, and the only issue was whether he did so in self-defense. The jury rejected that defense and convicted Miller of murder.

Miller thereafter filed an application for writ of habeas corpus, claiming, inter alia, that "his trial attorney was constitutionally deficient because he did not discover and offer evidence of Terry Burleson's prior conviction for misdemeanor assault." The Court of Criminal Appeals of Texas, however, rejected this argument, finding that even if Miller's attorney discovered the assault conviction, he could not have introduced it at trial.

The court did note that, pursuant to Texas Rule of Evidence 404(a)(2),

In a criminal case and subject to Rule 412, evidence of a pertinent character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of character for violence of the alleged victim of assaultive conduct offered on the issue of self-defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same.

But the problem for Miller, according to the court was that Texas Rule of Evidence 405(a) provides that

In all cases in which evidence of a person's character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.

In other words, Miller only could have presented reputation and/or opinion testimony regarding Burleson's alleged propensity for violence, not evidence of specific instances of violence by him, such as the assault leading to his conviction. The court did note that a defendant also

may offer reputation or opinion testimony or evidence of specific prior acts of violence by the victim to show the "reasonableness of defendant's claim of apprehension of danger" from the victim. This is called "communicated character" because the defendant is aware of the victim's violent tendencies and perceives a danger posed by the victim, regardless of whether the danger is real or not. This theory does not invoke Rule 404(a)(2)  because Rule 404 bars character evidence only when offered to prove conduct in conformity, i.e., that the victim acted in conformity with his violent character. Here, the defendant is not trying to prove that the victim actually is violent; rather, he is proving his own self-defensive state of mind and the reasonableness of that state of mind.

The problem for Miller in this regard, though was that Miller "did not know Burleson; he was unaware of his character for violence. Thus, applicant's counsel did not, and could not, offer 'communicated character' evidence." Therefore, because the court also found that the conviction could not have been offered to prove a permissible purpose under Texas Rule of Evidence 404(b) and likely could not have been offered for impeachment purposes, it concluded that Miller's trial attorney was not constitutionally deficient.

-CM