Rudolfo Lopez v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-07-00472-CR

Rudolfo LOPEZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No. 2006-CR-5998

Honorable Catherine Torres Stahl, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

Delivered and Filed: April 2, 2008

AFFIRMED

Rudolfo Lopez was convicted by a jury of aggravated assault with a deadly weapon. Lopez was sentenced to twenty years imprisonment, with the sentence to run consecutively with his fifty year sentence for a prior aggravated robbery conviction. (1) On appeal, Lopez contends that the trial court erred by: (1) excluding a defense witness who was called to testify regarding the complainant's reputation for truthfulness; and (2) ordering that his sentence run consecutively with the prior sentence. We affirm the trial court's judgment.

1. In his first point of error, Lopez contends that the trial court erred in excluding the testimony of a defense witness who Lopez wanted to call to testify that the complainant's reputation for truthfulness was bad. We review the trial court's exclusion of evidence under an abuse of discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006).

Before the witness testified, the State took him on voir dire outside the presence of the jury to question him about the basis for his reputation testimony. In response to the State's questions regarding the basis for his testimony, the witness stated that he once asked the complainant a question, and the complainant did not answer him truthfully. The witness also stated that the complainant had lied about whether he was Lopez's friend. In response to the State's question as to whether the witness had any other basis for his opinion, the witness responded, "No, sir." In response to the State's question as to whether the witness had talked to a lot of people to find out what they thought about the complainant, the witness responded, "No, I haven't."

A reputation witness's testimony that the general reputation of a witness is bad for having a particular character trait in the community in which he lives must be based on discussions with others concerning the witness, or on hearing others discuss the witness's reputation, and not just on personal knowledge. Adanandus v. State, 866 S.W.2d 210, 226 (Tex. Crim. App. 1993); Jackson v. State, 628 S.W.2d 446, 450 (Tex. Crim. App. 1982). A reputation witness's testimony cannot be based on specific acts of conduct by the witness whose credibility is being attacked but must be based on a synthesis of observations and discussions which results in a conclusion as to the individual's reputation. Adanandus, 866 S.W.2d at 226; Manning v. State, 126 S.W.3d 552, 555 (Tex. App.--Texarkana 2003, no pet.); Garza v. State, 18 S.W.3d 813, 824 (Tex. App.--Fort Worth 2000, pet. ref'd). To be an appropriate reputation witness, the reputation witness must have a substantial familiarity with the reputation of the person about whom the reputation witness is supposed to testify. Garza, 18 S.W.3d at 824. While it is not error to consider specific acts in determining the reputation of the witness whose credibility is being attacked, "alone they cannot combine with personal knowledge to establish [the reputation witness's] competence to testify." Manning, 126 S.W.3d at 556. Because the only predicate established for the reputation witness's testimony in this case was two specific acts and the reputation witness's personal knowledge, the trial court did not abuse its discretion in excluding the testimony. See id.

2. In his second point of error, Lopez contends that the trial court erred in imposing a consecutive sentence because the trial court previously considered the evidence involving the underlying aggravated assault offense in determining punishment for a prior aggravated robbery conviction. Lopez contends that imposing a consecutive sentence punishes him a second time for the aggravated robbery offense.

A complaint about consecutive sentences is reviewed under an abuse of discretion standard. Macri v. State, 12 S.W.3d 505, 511 (Tex. App.--San Antonio 1999, pet. ref'd). A jury's consideration of subsequent criminal activity in assessing punishment for a previously tried offense does not equate to a trial, conviction or punishment for that unadjudicated offense. Lester v. State, 824 S.W.2d 775, 778-79 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd); Barnes v. State, 839 S.W.2d 118, 121 (Tex. App.--Dallas 1992, pet. ref'd). Furthermore, a trial court may consider a prior conviction in deciding whether to order consecutive sentences without violating the double jeopardy clause. See Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999); see also Macri, 12 S.W.3d at 511 (rejecting argument that double jeopardy clause was violated because stacking of sentence punished defendant twice for prior conviction). Lopez's second point of error is overruled.

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH

1. Although the trial judge verbally pronounced that the sentences would run consecutively, the judgment states that the sentences are to run concurrently. Because this appears to be a typographical error that could be corrected with a nunc pro tunc judgment, we will address Lopez's issue challenging the consecutive nature of the sentence.