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Click here for the full text of this decision FACTS:Authorities tried Rickey Lynn Harrison for murder and serious bodily injury of his 8-month-old son. The baby lived with the baby’s mother and other relatives. On the night before the baby died, Harrison 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 Harrison 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 have been 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 14 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. Harrison did not testify, but a statement he had made to police was admitted into evidence. In the statement, Harrison 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 Harrison told him that he could have hit the baby too hard. Another officer testified that Harrison had mumbled, “I killed him,” under his breath while he was being taken to jail but later denied that he confessed through that statement. 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 Harrison’s relationship with his son. The final defense witness, Hazel Evans, testified that Harrison “was a sweet person . . . a good person.” The state argued that Evans’ statement was character testimony and had opened the door to cross-examination about Harrison’s previous assault convictions. The defense countered that Evans’ statement had been confined to Harrison’s character around her children and did not open the door to Harrison’s previous assault convictions. The court overruled the defense’s objection. The state then posed several “were you aware” questions concerning Harrison’s previous assault convictions. On appeal, Harrison 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. Under Texas Rule of Evidence 404(a), however, 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. The 10th Court of Appeals reversed the judgment and remanded the case, holding that the trial court committed harmful error by permitting the state to ask Evans “were you aware” questions. The court framed the issue before it as “whether [Evans's] volunteered and nonresponsive opinion testimony placed [Harrison's] character at issue, thus opening the door for ‘were you aware’ questions.” HOLDING:The CCA reversed the judgment of the 10th Court and upheld the conviction. The CCA stated that the 10th Court stated that the issue was whether Evans’ opinion was volunteered and not given in response to the question posed by the state. But the CCA found that none of the cases relied upon by the 10th Court supported its holding that Evans’ nonresponsive 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, the court stated. Evans offered evidence of Harrison’s character through her statement that Harrison was a “good” and “sweet” boy. Although Harrison did not intentionally elicit Evans’ character testimony, the nonresposiveness of Evans’ statement did 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 Evans with the evidence of Harrison’s previous assault convictions and citations. OPINION:Meyers, J., delivered the opinion for a unanimous court.

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