Koehler v. State

KOEHLER, Appellant, Jesse Joe Texas, Appellee. STATE

No. 767-83. Texas,

Court of Criminal

En Banc.

Oct. he refused to allow erred when had counsel, Marquez, Hon. Julietta

his trial cross-examine Verna opportunity to witness, Blackwell,1 certain a State’s past occurred in the that had “incidents” Blackwell, appel- which him and between that the have established lant claims would him as Blackwell testified reason malice, ill because she she did wаs will, bias, prejudice, or animus feeling, ill him. refus Antonio Court San after it appellant’s contention ed to review record did not establish that the concluded excluded testimo nature of Blackwell’s (Tex. ny. Koehler 1983). We find that we Antonio App.-San Our disagree that conclusion. must with ap reflects that of the record examination There his error. clearly perfected pellant holding, consider fore, set aside we will issue, judgment and reverse appeals. prior us reflects that The record before of Blackwell to the cross-examination Marquez, outside the Ms. following transpired between Antonio, Manning, appel- Fred J. San prosecuting appellant, counsel for at- lant; Chаpman, Antonio, K. David San torney, judge: the trial Counsel. (the prosecuting attorney): MR. MATA White, Mata, Bill M. Atty., Dist. and Ron counsel) (defense Judge, Marquez Ms. Lawrence J. Souza and Charles B. Tenni- has the witness on cross now [Blackwell] son, Antonio, Attys., Asst. Dist. Robert San from the first trial I examination and Huttash, Austin, Atty., for the Marquez try get will know that Ms. State. I would specific acts of misconduct. hearing in front of the like to regarding exactly what Ms. Mar- court quez— PETITION OPINION ON APPELLANT’S why THE That’s we are here. COURT: FOR DISCRETIONARY REVIEW hearing. is it that Let’s have What TEAGUE, Judge. you lady? want to ask counsel): (defense MARQUEZ MS. Koeh- The record reflects that Jesse Joe she had attacked Judge, incidents where ler, was convicted appellant] Mr. Koehler Pun- committing the offense of murder. [the to at- throwing drinks at him and triеd also ishment was assessed in his tack that have been penitentiary. On imprisonment life that na- the trial at clubs and appeal, appellant asserted that jury in that appel- when the al ended in a mistrial The record reflects that Blackwell was regarding appel- girlfriend and was a critical wit- a verdict lant's former cause could not rеach trial, was the the State at his which guilt. ness for lant’s The first tri- second trial underwent. ture and I want to show motive and flas thrown chairs in prejudice. him. THE THE COURT: COURT: You don’t She will have to telling mind her tell him why she did it. She did it about him if want because he to show her char- did it and open we will have an thing acter? and it will up be all to him. MARQUEZ: MS. put We have not MR. MATA: I am sorry interrupt. to reputation in saying issue. Wе are she is This happened is “what in the first trial. motive, because she has a she THE COURT: This is the first trial. prejudiced, is attacked him on numerous happened What in the first trial has no occasions and attacked other women he bearing in this case and I don’t think it is has been with. proper and I will rule it out. Let’s have THE COURT: She going [Blackwell] a fifteen minute recess.2 to have to tell about him [the Thereafter, appellant’s appellant], what he cross-ex- has done to her and However, amined Blackwell. due to the other women that she knows It about. judge’s ruling, counsel did not cross- works ways. both understand any examine Blackwell about “incidents” right, have a but she has a [Blackwell] that past had occurred in the whiсh had right to know things about certain he has involved appellant, Blackwell and such as Besides, done. is not material. “attacking appellant subject That would be to introduction throwing drinks at him trying to attack anyway, what she has done to people. girls that had been in his company and MR. MATA: our position, That’s what— of that nature...” involvement between her peo- and other In 479- ple relevancy. has no 480 (Tex.Cr.App.1982), expressly this Court MARQUEZ: MS. It does insofar as it pointed out appellant that “an is not re shows her animosity prejudice, Your any stricted to in showing any one method Honor. fact which would tend to establish ill feel MR. Against MATA: people, other bias, motive and animus on the against not the defendant. against a witness him... And finally, lest THE COURT: It show what she has forgotten it be that the error committed in against done people. other What has she the first instance was the denial of an done him? opportunity propound questions in the MARQUEZ: MS. She has attacked him quote Spain we publicly. THE WITNESS: Not half as much as he 1979): States, ‘Just as v. United has attacked me. 51 S.Ct. 75 L.Ed. 624 MARQUEZ: MS. talking (1931), I am not to the held thаt a required defendant is not talking witness. I am to the Court. She to show what facts the cross-examination transcription 2. A of the first trial was in evi- cidents" which she asserted had occurred be- occurred, colloquy Nevertheless, dence appellant when the above but it tween and Blackwell. placed had been colloquy, into evidence for another rea- from the above it is obvious to us that clear, however, Mata, son. record is prosecuting attorney, that trial Mr. who was appellant trial, counsel for never prosecuting attorney referred to the tran- also the at the first scription during colloquy, clearly the above nor did the understood in which direction Ms. Mar- prosecuting attorney judge, quez trying go. nor did the trial was A review of the tran- judge presided scription who was other than the who first trial reflects ‍​‌​‌​‌‌‌​‌​​‌​​​‌​‌​‌‌​‌​​​‌​​​‌​​‌‌‌‌‌‌​​‌​‌​‌‌‍that Ms. Mar- Unquestionably, quez permitted go great over first trial. during had coun- was deal appellant transcription sel for referred to the her cross-examination of Blackwell about the trial, judge the first prior relationship appellant and showed the trial and Blackwell trial, had, permitted she had been to do at the first which cross-examination included probably questioning this would have made this record her about "incidents” that had oc- clearer, regarding plea to the trial curred her and between both in and prior public eye. let her cross-exаmine Blackwell about "in- out of the malice, ill feeling, ill shown that she had have revealed order to establish will, bias, ap- or animus towards present prejudice, case prejudice, required pellant. that his cross- [was] affirmatively es- examination would have pointed this Court out Har As ” sought.’ the facts

tablished State, supra, in a defendant ris v. order for holding find in this instance that We appellate re perfect type error for appeals, “In the of the court of ab- required purposes he is not to show view excep- sence of a formal or informal bill of would have af that his cross-examination transcription report- tion or a of the court sought; firmatively established the fаcts er’s notes the nature of ex- merely establish what mat he must objections excep- cluded he to examine the witness about ter desired made, preserved for tions no error course, during [was] cross-examination. Of review,” conflicts with what this Court on cross- any question asked of witness State, supra. We be- stated Harris examination, tendency which proof lieve that counsel’s offer of was the credibility, always to the witness’ is affect if equivalent promise to a she was State, supra. proper question. a so, permitted to do she would have cross- self-evident in these It is now subjects Blackwell on as examined such great that one of the consti United States attacking “Mr. Blackwell Kоehler right rights tutional an accused has is the throwing at him Blackwell drinks and [that to and cross-examine the State’s confront tried to attack that had been in had] in a forum. v. witnesses Pointer his and different of that 400, 1065, Texas, 13 85 S.Ct. nature...” Thus, (1965). “[g]reat L.Ed.2d latitude 923 point out at We that the situation the accused in should be allowed as that a defend bar is not the same where ill- any fаct which would tend to establish certain, specific ant desires to elicit re bias, upon the feeling, motive and animus witness, sponses pre is but testifying against part any witness doing cluded from so the trial court. In 277, State, 279 v. 511 S.W.2d Blair instance, upon it is the de incumbent State, v. (Tex.Cr.App.1974),also see Wood fendant to either call the witness to (Tex.Cr.App.1972), 359 when 486 S.W.2d him testify stand and have and answer the is to purpose of the cross-examination specific questions counsel desires to have give bring out facts which will answered, State, see v. 548 Simmons attitude, interest which motive and 386, (Tex.Cr.App.1977); 388 Bolden S.W.2d witness, might credibility of the affect State, 300, v. 489 S.W.2d 303 864, (Tex. State, 482 S.W.2d 867 Jackson v. 1972),or the defendant must make an offer Unquestionably, mo Cr.App.1972). “[t]he quеstions of the he would have of a operate upon the mind tives which might asked and the answers he have re regard he are never witness when testifies permitted question ceived had he been immaterial or collateral matters.” ed as presence jury. in the the witness State, supra, at 279. Further v. Blair State, 952, 953 v. 646 S.W.2d See Cook more, or interest “[ejvidence to show bias 40.09, Art. (Tex.Cr.App.1983). Also see range a wide a in a cause covers of witness 6(d)(1),Y.A.C.C.P. Sec. external circumstances and the field of may or interest Thus, probable from which bias the case at bar does not involve The rule encom permit inferred is infinite. judge refusing be issue of a trial which, and circumstances passes In- all facts specific questions. to answer witness experience, tend to by human stead, whether when tested the issue us concerns before may shade his testimo that a witness oppor- was denied the counsel helping to establish ny purpose for the question the State’s witness tunity to only.” v. the cause Jackson one side of v. State, at Also see Harris supra, 868. subject might matters that have certain 10 State, have, (Tex.Cr.App.1982); might nation of Blackwell that which 471 642 S.W.2d malice, interest, animus, will, State, 137, (Tex.Cr. shown ill ill v. 140 Steve 614 S.W.2d bias, any State, feeling, prejudice, or other mental Hooper v. 494 S.W.2d App.1981); which, fairly state or status on her State, v. 846, Wood (Tex.Cr.App.1973); 848 construed, might have tended to affect Blake (Tex.Cr.App.1972); 359 credibility. mat- Blackwеll’s State, v. (Tex.Cr.App.1963); 365 S.W.2d 795 sought ters which State, 128 Barr v. Tex.Cr.R. unquestion- cross-examine Blackwell about v. (1935); Kissenger 126 999 ably might only have not established a mo- (1934); 182, 70 Tex.Cr.R. S.W.2d did, her as she it tive for State, v. 122 S.W. O’Neal Tex.Cr.R. additionally predi- served as a could have (1909). have cate for further out that the We also State, supra, v. Hooper fn. impeached her. by the accused or cross-examination Thus, p. proffered cross-ex- witness, pur for the counsel of a State’s amination, gone which would credibility, affecting the pose of witness’ real, feelings, imag- Blackwell’s whether may dual: “A witness be asked at least ined, feigned, or could may question, answer to which judging jury’s affected the decision tendency credibility. affect his thus would have been credibility,

And anything if that would show he denies See Wood proper cross-examination. for, to, testify against a a motive ‍​‌​‌​‌‌‌​‌​​‌​​​‌​‌​‌‌​‌​​​‌​​​‌​​‌‌‌‌‌‌​​‌​‌​‌‌‍or animus State, supra, Seal page 362. Also see party, be shown by other witnesses it (Tex.Cr.App.1973). 496 S.W.2d 621 facts.” by independent and refusing permit in The trial court erred State, 476-477, quoting supra, pages opportunity the State, supra. v. [Emphasis Jackson on the cross-examine Blackwell proffered. added.] matters she appeals is judgment of the court of instance, the witness In this the cause remanded the reversed and unimportant not an witness Blackwell was trial court. case.3 We find from to the State’s appellant’s trial counsel made proffer that ONION, P.J., and and W.C. DAVIS judge thаt she made it known to the trial CAMPBELL, JJ., dissent. Blackwell wanted to cross-examine that she CLINTON, Judge, concurring. in “attacking appellant throwing trying drinks at him and to attack petition for re- granted This Court in girls that had been whether the San in order to determine view ijature.” things of that Notwith correctly over- Antonio Court gen proffer made in standing that her was error five and six on its grounds ruled terms, require her “to the law did eral circumstances finding that under [specific] the cross-exami facts show what presented “no error is in the record shown v. have revealed...” Harris nation would State, v. review.” Koehler 653 S.W.2d State, general find that supra. We 1983). 617, (Tex.App.—San Antonio 622-623 might referred to which she subjects aspect A of the constitutional significant established, malice, bias, ill feel shown, if implicated here. process is principle of due animus, prejudice on the or States, 687, 51 v. United Alford appellant. (1931), viz: 218, L.Ed. 624 75 S.Ct. of a fair trial “It is the essence hold that

We therefore given the cross-ex- latitude be refusing appellant oppor reasonable court erred though he is unable to еven aminer, present through her eross-exami- tunity to furnished a night question, would have that if the had believed 3. We out chain of evidence in the circumstantial testimony had admit- vital link Blackwell’s against appellant. on the the State he had killed someone ted to her that

H to the court what a reason- state exception complete “A bill оf must be facts develop. within itself and must stand or fall its able cross-examination allegations. plainly own The bill must Prejudice ensues from a denial of the sought preserved set out error to be opportunity place the witness in his State, v. Garza for review. 622 S.W.2d proper setting put weight of his 85, Herrin (Tex.Cr.App.1981); 89 test, testimony credibility and his a State, 29 fairly ap- without whiсh the cannot 1975) (Opinion on Re State’s Motion for praise them. To [Citations omitted]. 2 hearing).” say prejudice can be established only by showing specifically Both authorities cited that the cross-examina- bill tion, purported that at if issue was pursued, necessarily formal § 6(a) exception provided for in of Arti- brought tending out facts to discredit the 40.09, suрra, cle rather than an “informal” chief, deny is to a substan- one. right tial and withdraw one of the safe- guards essential to a fair trial. Next, appeals interprets [Cita- the court of

tions of remarks made portions omitted].” two selective the trial during hearing conduct- Id., U.S. at S.Ct. at “Erroneous ed outside denial of this to confrontation is ‘con finds that the first nоt be construed magnitude stitutional error of the first ruling excluding proffered ‍​‌​‌​‌‌‌​‌​​‌​​​‌​‌​‌‌​‌​​​‌​​​‌​​‌‌‌‌‌‌​​‌​‌​‌‌‍“as a testimo- prejudice no amount of of want of ny,” limiting nor the second “as the cross- Alaska, cure it.’ Davis v. [will] [U.S. present examination in the trial of the wit- 111; Evans v. 94 S.Ct. at Ordinarily ness Blackwell.” we should not Spain Tex.Cr.App., 519 S.W.2d 868.” quibble with a court of about such (Texas Cr.App. portions made it construсtions 1979). Accordingly, Spain held Court record, problem but when is of constitu- that when permit the trial court refused to fully justified tional dimension this Court question defendant an adverse witness making independent an determination plea bargain, about a under he is examination, from its own and to that required “not to show that his cross-ex now turn. amination would affirmatively es ” colloquy between court and counsel tablished the sought, ibid. facts completely opinion is set out Thus, agree Judge Teague with that appeals by Judge Teague appeals the court applying of erred in opinion, reprised and need not be here. against appellant general rule laid say upon being Suffice to informed down when merely cross-examination has prosecutor “problem” that the was that “limited;” Barnett v. e.g., been [appel- “from the first trial I know that (Tex.Cr.App.1981), S.W.2d 222-223 cit- specific try get lant’s will counsel] appeals. ed the court of acts misconduct” and he wanted a of Accordingly, the court below should not hearing, interrupted say, the court apрel- reached of whether hearing,” inquired “Let’s have that of complied lant had with “the alternative appellant, “What is it want to ask this excep- bills making method of lady?” for Counsel alluded to informal of § tion” permitted by 40.09, 6(d)(1), Article “incidents where she had attacked Mr. Nevertheless, Y.A.C.C.P. it also erred in public, throwing Koehler in him drinks at First, its treatment of that matter. and tried to attack ... in his said; court of that nature” in or- moment, emphasis supplied throughout by 1. All 2. It is of little but I note that the Garza opinion opinion alluded to was handed down on writer of this rehear- unless otherwise indi- panel opinion Herrin is a whereas that did cated. get rehearing. her direct testimony preju- Blackwell “is motive for der to show that motive, аgainst preju- appellant by dice harbored Black- because she has she is say dice,[d]” against appellant. utterly unnecessary, Asked to it is in the well was against record; complained appel- what “she done the errors [has] responded, publicly him “She has attacked grounds lant’s fifth and sixth have been in public she has thrown chairs properly presented ... to the court of judge pondered him.” The trial out loud review. See Harris testimony if he such “we will allowed (Tex.Cr.App.1982). 479-480 S.W.2d open thing,” prosecu- have an and after the reasons, For these I concur. say hap- interrupted tor “This is what trial,” pened in the first the court conclud-

ed, proper “I don’t think it is and I will

rule it out.” 6(d)(1), supra, provides perti-

Section part:

nent discretion, court,

“The in its aliov an a con- offer form of party offering сise statement BULLARD. parte Edwin Ex Charles same what the excluded evidence No. 69317. show, to be made before the re- porter out of the as Appeals of Texas. Court of Criminal causing an alternative method Oct. testimony such excluded record to show accepted ... and shall be on the same what ex-

appeal establishing as suсh ‍​‌​‌​‌‌‌​‌​​‌​​​‌​‌​‌‌​‌​​​‌​​​‌​​‌‌‌‌‌‌​​‌​‌​‌‌‍testimony ... would have con-

cluded it been admitted into evi-

sisted dence." judge plain

It is at once just proof, such an offer of

here invited appellant concisely

and that counsel for would show

stated of Blackwell had committed acts of violence

she companions; later

appellant and his female asked for a statement of

when against appellant, Blackwell had done factually that “she has

counsel reiterated

thrown chairs having “an

as the worried thing,” prosecutor open confirmed statements,

verified factual perhaps the concern voiced well, telling judge, “This is

court as in the first trial.” There- happened

fore, proof states concisely the offer of

factually what the excluded show, ‍​‌​‌​‌‌‌​‌​​‌​​​‌​‌​‌‌​‌​​​‌​​​‌​​‌‌‌‌‌‌​​‌​‌​‌‌‍and the accepted method estab-

should

lishing its content. Spain, among under While authorities,

many other an offer of

Case Details

Case Name: Koehler v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 17, 1984

Citation: 679 S.W.2d 6

Docket Number: 767-83

Court Abbreviation: Tex. Crim. App.