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NOTICE: NOT DESIGNATED FOR PUBLICATION. UNDER TEX.R.APP.P. 47.7 UNPUBLISHED OPINIONS MAY NOT BE CITED AS AUTHORITY.
Court of Appeals of Texas, Dallas.
Clay Alan WILLIAFORD, Appellant,
v.
The STATE of Texas, Appellee.
No. 05-93-00133-CR.
Dec. 8, 1994.
On Appeal from the County Court At Law # 3 Collin County, Trial Court Cause No. 3-1077-91
Before THOMAS, OVARD and WHITTINGTON, JJ.
OPINION
*1 Clay Alan Williaford appeals his conviction for driving while intoxicated. Williaford pleaded not guilty. The case was tried to a jury. The jury found Williaford guilty and assessed punishment. The trial court sentenced Williaford to two years' confinement and probated a $2,000 fine. In seven points of error, Williaford contends (A) the prosecutor's request of Williaford to perform field sobriety tests during trial violated his privilege against self-incrimination under the Texas Constitution article I, section 10, and the United States Constitution's fifth and fourteenth amendments; (B) the trial court abused its discretion by failing to grant a mistrial sua sponte after the prosecutor made her request; (C) the trial court abused its discretion by excluding habit and character evidence that Williaford would have had only two to three beers the night the police arrested him; (D) the trial court abused its discretion by admitting the audio portion of the videotaped intoxilizer interview because the tape does not contain the required Texas Code of Criminal Procedure article 38.22, section 3(a) warnings; and (E) the prosecutor made two improper jury arguments. For the following reasons, we affirm the trial court's judgment.
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EXCLUSION OF HABIT/CHARACTER EVIDENCE
In his third contention, Williaford asserts the trial court abused its discretion by excluding Mrs. Williaford's testimony that Williaford would have consumed only two to three beers the night the police arrested him. At trial, the following exchange took place:
*3 Q: [DEFENSE COUNSEL] Mrs. Williaford, do you feel as though-based on your understanding of Mr. Williaford's habits, do you feel as though it is at least within the range of his habits that he would have had only two or three beers?
A: Yes.
[PROSECUTOR]: Objection speculation, Your Honor.
THE COURT: Just one moment, please. Objection sustained. Please continue, sir.
Williaford contends his wife's testimony was relevant. He maintains the testimony constituted character or habit evidence. He argues the trial court should have admitted the testimony under Texas Rules of Criminal Evidence 404(a) or 406.
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Even had Williaford properly preserved his complaint, we find that the trial court did not abuse its discretion if it refused to admit the testimony on Rule 404(a) or Rule 406 grounds. Williaford asserts the testimony constituted either character or habit evidence. We disagree.
Character is a generalized description of one's disposition. Reyes v. Missouri Pac. R.R. Co., 589 F.2d 791, 794 (5th Cir. 1979). Character may describe one's overall disposition or one's disposition regarding a general trait. Id. A propensity toward violence and a reputation for temperance are examples of character evidence. See Preston v. State, 769 S.W.2d 375, 377 (Tex. App.-Fort Worth 1989, pet. ref'd) (testimony that defendant did not have a propensity for violence constituted character evidence); see also Reyes, 589 F.2d at 794 (temperance is a generalized description of one's disposition in respect to a general trait) Character represents one's tendency to act in accordance with that general disposition in all life's various situations. Reyes, 589 F.2d at 794.
*4 Defense counsel failed to show Mrs. Williaford's testimony constituted character evidence. See Tex. R. Crim. Evid. 404(a)(1). Defense counsel asked if Williaford would have had a certain amount of alcohol on a certain night. Mrs. Williaford's testimony describes a specific action on one particular night. Character evidence describes a general disposition, not a specific action. Reyes, 589 F.2d at 794. It represents a tendency to act according to that disposition in any and all situations, not just on one particular occasion. Id. Thus, the excluded testimony did not constitute character evidence. See id.; compare with Preston, 769 S.W.2d at 377, and Robles v. State, 830 S.W.2d 779, 785 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd) (testimony that defendant was peaceful and law- abiding constituted pertinent character evidence).
Habit evidence is more specific than character evidence. Reyes, 589 F.2d at 794. Habit describes one's regular response to a repeated, specific situation. Id. Habit represents one's regular practice of meeting a particular kind of situation with a specific type of conduct. Id.; see also Bishop v. State, 837 S.W.2d 431, 435 (Tex. App.-Beaumont 1992), aff'd, 869 S.W.2d 342 (Tex. Crim. App. 1993), citing Jones v. Southern Pac. R.R., 962 F.2d 447, 449 (5th Cir. 1992). Although no precise formula exists to determine the consistency with which behavior must occur to constitute a habit, "adequacy of sampling and uniformity of response" are controlling considerations. Reyes, 589 F.2d at 795. The behavior should be a semi- automatic response to a certain situation. See id.
Defense counsel failed to show Mrs. Williaford's testimony constituted relevant habit evidence. See Tex. R. Crim. Evid. 406. Defense counsel offered testimony about a specific action on one particular night under one specific set of facts. This singular example does not constitute an adequate sample to show the action was a uniform or semi-automatic response. Cf. Reyes, 589 F.2d at 795 (four prior convictions for public intoxication in three- and-a-half year period did not rise to the level of habit evidence); cf. Jones, 962 F.2d at 449- 50 (nine citations for safety violations during twenty-nine year career did not rise to the level of habit evidence). Defense counsel did not show that Williaford made a regular practice of drinking two to three beers in response to any particular situation. See Bishop, 837 S.W.2d at 435, citing Jones, 962 F.2d at 449. He did not define the specific situation that triggered Williaford's response. Id. Consequently, Williaford did not show the excluded evidence constituted habit evidence. Id.; see also Reyes, 589 F.2d at 794-95. Based on the foregoing reasons, we overrule Williaford's third contention.
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We affirm the trial court's judgment.
END OF DOCUMENT