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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 UNDER TEX.R.APP.P. 47.7 UNPUBLISHED OPINIONS MAY NOT BE CITED AS AUTHORITY.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, Amarillo.

Doyle NEWSOME, Appellant,

v.

The STATE of Texas, Appellee.

No. 07-97-0179-CR.

Oct. 8, 1998.

FROM THE COUNTY COURT OF HALE COUNTY; NO. 96C-360; HONORABLE BILL HOLLARS, JUDGE.

Before BOYD, C.J., and QUINN and REAVIS, JJ.

JOHN T. BOYD, Chief Justice.

*1 In this appeal, appellant Doyle Newsome challenges his conviction of assault and the resulting punishment of confinement for one year in the Hale County Jail, probated for two years, and a fine of $4,000. In mounting his challenge, he presents fifteen issues for our determination in which he asserts that he was denied his right to a speedy trial and that the trial court abused its discretion in excluding evidence regarding the victim. Disagreeing that any of those issues require reversal, we affirm the judgment of the trial court.

On November 6, 1994, appellant was arrested for assaulting his wife, Lana. On January 16, 1995, he was indicted for aggravated assault, but on April 4, 1995, the indictment was dismissed. On April 4, 1996, exactly one year later, by complaint and information, the State charged him with assault arising out of the same occurrence. Trial on that charge began on May 20, 1997, and resulted in a guilty verdict on May 21, 1997.

***

Appellant's next theory pertains to his defense that Lana's injuries were caused by accident, not assault. This question was preserved for review as appellant asked Lana if she had fallen in the past because of her substance abuse. Although Lenna did not testify during appellant's second offer of proof that she ever saw Lana suffer injuries from a fall, she did testify that she had seen Lana fall after drug and alcohol use. Thus, the question was preserved for our review.

In response, the State argues that the testimony was not admissible because it was character evidence which is excluded under former Rule 404(a). Tex.R.Crim. Evid. 404(a) (now enumerated without material change in content or number in the present Rules of Evidence). We agree. That rule, with certain exceptions not relevant here, prohibits the use of a person's character or character traits for the purpose of proving action in conformity therewith on a particular occasion. Character is a generalized description of a person's attributes, traits, or abilities. The American Heritage Dictionary of the English Language (3d ed. 1992). Depending upon the circumstances, evidence regarding a person's general history of substance abuse may be nothing more than character evidence.

In this case, appellant was attempting to show that because Lana had fallen and hurt herself in the past because of her substance abuse, then the same occurred on this occasion. Unless this evidence rose to the level of habit evidence admissible under former Rule of Criminal Evidence 406, the trial court's decision would fall within the zone of reasonable disagreement in concluding that the evidence amounted to nothing more than inadmissible character evidence.

*9 Former Rule 406 provided that evidence of a person's habit, whether corroborated or not, and regardless of the presence of eyewitnesses, is relevant to prove that the person acted in conformity with his habit upon a particular occasion. Tex.R.Crim. Evid. 406. That is significantly different from character evidence, which is inadmissible under the rule. The variance arises from the difference between one's general character and one's habits. We note the Texas rule tracks the federal rule verbatim. Thus, we find the Advisory Committee's note on the federal rule is helpful in explaining the difference. In the note, the committee cited Professor McCormick's treatise on evidence and called attention to his definition of the difference between habit and character:

Character and habit are close akin. Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. Habit, in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation. If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street. A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic.

Fed.R.Evid. 406 (Notes of Advisory Committee on Rules). The committee further noted that the uniformity of a person's response to habit is far more consistent than his response in conformity with his character or disposition. Id.

Under this definition, and as related to appellant's contention, in order to qualify as habit evidence, appellant must have laid a predicate showing not only that Lana habitually used drugs and alcohol, but that each time she used them, she habitually repeated acts that resulted in injuries similar to those she suffered here. No such predicate was laid. Additionally, there was no testimony in the offer of proof showing with any particularity with regard to how, when, how frequently, or in what circumstances Lana would abuse alcohol or drugs. Suffice it to say that under the record before us, we cannot say the trial court abused its discretion in arriving at its evident conclusion that the evidence as tendered was character evidence within the purview of the rule.

In sum, all of appellant's issues are overruled and the judgment of the trial court is affirmed.

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