                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-04-207-CR




ERIC PAUL MICHAEL                                              APPELLANT

                                             V.

THE STATE OF TEXAS                                                  STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                DISSENTING MEMORANDUM OPINION 1
                   FROM REFUSAL TO MODIFY ON
                PETITION FOR DISCRETIONARY REVIEW

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     On original submission of this appeal, this court affirmed Appellant’s

conviction, holding that impeachment of the complainant witness with prior

inconsistent statements was an attack on her character for truthfulness. We



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         … See T EX. R. A PP. P. 47.4.
reasoned that impeachment by prior inconsistent statements is always such an

attack, and that the cross-examination here thus justified rehabilitative opinion

testimony offered by the State from her former second grade teacher as to her

good character for truthfulness under Texas Rule of Evidence 608(a). Michael

v. State, 173 S.W.3d 829, 833 (Tex. App.—Fort Worth 2005). On petition for

discretionary review, the Texas Court of Criminal Appeals vacated and

remanded for consideration of the issue whether the character evidence was

properly admitted, based on the test of whether a reasonable juror would

believe the complainant’s character for truthfulness was attacked by cross-

examination, evidence from other witnesses, or statements of counsel. Michael

v. State, 235 S.W.3d 723, 728 (Tex. Crim. App. 2007).

      On remand, this court assumed, without deciding, that the trial court

abused its discretion by admitting the evidence of the complainant’s good

character for truthfulness but again affirmed the conviction, holding that the

assumed error was nevertheless harmless because it did not have a substantial

and injurious effect or influence on the jury’s verdict. Michael v. State, No. 02-

04-00207-CR, 2008 WL 426180 (Tex. App.—Fort Worth, Feb. 14, 2008, pet.

filed) (mem. op., not designated for publication).




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      On March 19, 2008, Appellant filed his petition for discretionary review

by the court of criminal appeals of our decision on remand. On reconsideration,

I am convinced that our opinion on remand is wrong, and I disagree with the

decision of the majority not to withdraw and modify or correct the opinion and

judgment. See T EX. R. A PP. P. 50. I would hold that the trial court abused its

discretion by admitting the testimony of the complainant’s former teacher as

to the complainant’s character for truthfulness because the cross-examination

of the complainant was specific impeachment merely highlighting testimonial

defects in the accuracy of her memory.         I would hold that allowing the

teacher’s opinion testimony improperly bolstered the complainant’s testimony.

      The teacher’s opinion carried an aura of authority and expertise (together

with references to the school records). The verdict was based solely on the

complainant’s in- and out-of-court statements in a trial that turned on the

complainant’s credibility from beginning to end, versus the testimony of

Appellant. The complainant said it happened; Appellant said it did not. The

teacher’s opinion of the complainant’s good character for truthfulness went to

the heart of the case. Considering everything in the record, including the voir

dire and closing arguments and the theories of the case espoused by the State

and Appellant, I would further hold that the error had a substantial and injurious


                                        3
effect on the jury’s verdict. See T EX. R. A PP. P. 42.2(b); Shutz v. State, 63

S.W.3d 442, 444 (Tex. Crim. App. 2001). Consequently, I would reverse the

conviction and remand for a new trial.




                                                ANNE GARDNER
                                                JUSTICE

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: April 17, 2008




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