*1 they acts are so connected with the transac not have Ap- should been submitted. they may tion at part issue that all be of a pellants question further contend four was system, plan. scheme or Underwriters rendered immaterial the ques- answer to Life (Tex. Cobb, Ins. Co. v. liability. tion regarding Appellants one claim 1988, writ); App. Corpus Christi consumers, they falsity because were Tex.R. — intent must be shown Where established, appellees’ conduct was damages Evid. A, plaintiff under the DTP must show law, were established as a matter of and either intent “knowing” deceive or con judgment in their favor should have been Pennington Singleton, duct. 606 S.W.2d entered at trial. (Tex.1980). 682, 689 Appellants alleged a A disregard trial court jury requiring cause of action a showing of know findings grant and a motion for judgment ing jury conduct and the found that Land notwithstanding only the verdict when there that, mark “knowingly” acted and at least as upon is no jury evidence which the could false, plaintiffs, to four engaged Landmark findings. have made its To determine deceptive practices producing that were a evidence, any whether there is we must re damages. Appellants cause of have not light view the in the record most favorable to shown, however, that the exclusion of the jury findings, considering only the evi evidence of acts was harmful because dence support and inferences which the find jury found in their favor on the issue ings rejecting and the evidence and infer Furthermore, “knowing” conduct. we are contrary findings. Mancorp, ences necessary unconvinced that this evidence was Inc. v. Culpepper, 802 S.W.2d to rebut that Landmark was forth 1990). When there is more than a scintilla of right with get customers or that the rush to competent support jury’s evidence to an advertisement on the air led to the mis findings, judgment notwithstanding takes or omissions in the advertisement. verdict should be reversed. Id. at 228. jury Because the plain found in favor of four issues, liability on damages tiffs we can Because we have found there is more than not conclude that the excluded support evidence was a scintilla jury’s of evidence to appellants’ Accordingly, crucial to findings case. we appellants were not consumers (under point overrule of error three. jury questions eight), four and trial properly appellants’ denied motion points through eight of error six judgment notwithstanding the verdict. ten, appellants challenge sufficiency point We overrule of error twelve. supporting jury’s findings liability damages. on Having upheld the judgment We affirm the of the trial court. jury’s finding appellants that none of were consumers, points we need not consider these
of error. five, point appellants of error claim the
jury’s greater weight verdict preponderance of the evidence. This LOPEZ, Appellant, Rudolfo
general point of error relates to the objections points found of error six through upheld eleven. Because we have Texas, Appellee. STATE jury’s finding appellants were not con- No. 04-96-00343-CR. sumers, point we need not address this error. Texas, Appeals San Antonio. twelve,
Finally, point appel- of error denying lants claim the trial court erred in Jan. 1999. appellants’ judgment motion for non obstante Appellants veredicto. contend the an- questions eight (regarding
swers to four and status) were immaterial
consumer *2 Adkins,
Jacquelyn Snyder, appel- for L. lant. Atty., Hilbig Criminal Dist. San
Steven C. Antonio, appellee. RICKHOFF,
Sitting: Justice ALMA TOM ANGELINI, LÓPEZ, L. Justice KAREN Justice.
OPINION LOPEZ, Justice. was Lopez aggravat-
Rudolfo convicted indecency of a ed sexual assault child by with child contact. Punishment by years pris- at assessed twelve court, Lopez appealed arguing to this on. by excluding evi- that the trial court erred twelve-year-old complainant, that the dence P.M., accusation of made false and re- his mother. We reversed manded, holding that trial court erred excluding rele- this evidence because was credibility. Lopez v. vant 04-96-00343-CR, WL 404268 No. 1997) (unpublished). Antonio (Tex.App.—San petition discretionary On the State’s changed re- questioning. the line of The court view, the court of appeals criminal vacated later report stated that the was irrelevant. opinion our remanded cause to this Lopez’s attorney exception, made bill of argument to address the State’s explaining that she had intended to elicit pursuant evidence was inadmissible some report statements in the and to im- *3 608(b) Rule of the Texas Rules of Criminal peach P.M. with a inconsistent state- Evidence.1 We hold that the trial court’s ment, specifically, his accusation about 608(b) application imper- of in this instance his mother. missibly appellant’s conflicted with constitu- testimony given by The heard Lopez’s tional of confrontation. reverse the We wife, Rosie, judgment relationship about their of conviction with and remand the case for a new Lopez trial. each other and with P.M. met his April future wife in of 1992 while he was Background
Factual And Procedural living Lopez began living with P.M.’s father. August year with complainant, they Rosie of that who in 1992 was a 1, 1993, twelve-year-old student, learning January married on disabled moved appears to have endured a troubled child- February Dallas at the of end 1993'. Rosie years hood. Two making outcry before during many testified this time she had statement Lopez, P.M. accused his occasions to observe J.M’s mistreatment and mother of hitting throwing him and him son, neglect of frequently that she ad- against a “steel washer.” A case worker maltreatment, monished J.M. for this includ- Department with the Texas of Protective ing inappropriate gave sex education he (TDPRS) Regulatory investigated Services his own son. Lopez Rosie and Rudolfo fre- this report. accusation and filed The case quently took care of P.M. Under cross-exam- worker “very provocative described P.M. as ination, Rosie stated: handle,” and hard to and had “the run was, Paul, am suggesting What I house.” She found that P.M. was unable to conversations, during our come tell her what a “steel washer” was or where me and tell me that he wanted —he— home, it was in his that P.M. did not have was —he hated Joe much he so wanted to any injuries, and the incident was “ruled leave. He didn’t want to live with [his out.” report indicated that P.M. had got father] [his When he keeping mother]. trouble friends because he my refused to bathe got part and because he lied to know me and sons and to be a them. constantly making up had, He “is stories.” relationship Rudy and I he The case worker recommended that the case Rudy adopt asked for me and him. be closed.2 I adopt When told him that we couldn’t him, very upset. he was that,
P.M. living testified at trial while with following year, father the Lopez he and that, is, my opinion So Rudy that when engaged in various sexual acts. On cross- Dallas, only and I left to he felt that the examination, Lopez’s attorney attempted to people that had taken the time to talk to impeach credibility by asking him if give any type him and him of attention he ever “big things.” lied about P.M. re- deserting were him. sponded that he did not. Counsel then be- that, gan question opinion, P.M. about the Rosie also testified in her P.M. TDPRS re- child, port, objected. and the State After an off- was an abused but she did not conference, the-record bench her counsel believe husband was abuser. remanded, 1. Since part this case was our state civil 2. This recommendation based on the merged and criminal rules of evidence have one set of rules into case worker’s conclusion that there was no cor- adopted both the Texas Su- physical roborative evidence abuse and also preme Court and Texas Ap- Court of Criminal very cooperative P.M.’s mother was because peals, effective March 1998. See Texas Rules counseling seeking help' her deal with P.M.’s (April 1998). Journal Evidence, Texas Bar behavior. 608(b) language unchanged. of Rule remains State, 802 608(b) rule. See Ramirez Rule Instead, the Tex- (Tex.Crim.App.1990). Lopez argues that trial court 608(b) very is described as as version Rule by excluding regarding P.M.’s erred restrictive, allowing exceptions. See id. against his prior accusation mother because Nevertheless, justice concurring noted that credibility. it was relevant to P.M.’s regarding rule im- general the common law State counters that even if evidence was survives on a collateral matter peachment relevant, it was inadmissible under Texas 608(b). Miller adoption of Justice Rule Rule Criminal Evidence credi- which pointed allows 608(b) in provided “[specific by any impeached bility of a witness to be witness, stances the conduct of a vehicle which one correct party, as purpose attacking supporting his credi *4 by by impression false made a witness a bility, as other than conviction a crime of a of utilizing instance that witness’s 609, may inquired provided Rule not be (Miller, J., at 677 concur- conduct. See id. into on of nor cross-examination the witness is to the ring). exception There an additional by proved Lopez argues evidence.” extrinsic 608(b) reading of Rule under Rule restrictive prior that P.M.’s accusation moth against his 613(b) where about mat- “cross-examination false er was and should have been considered showing ters that are relevant to that by determining whether his accu bias, a has interest or motive witness against Lopez sation was also false. Howev testify untruthfully,” permitted. are See er, prior accusation his mother Schlueter, WendoRF, David A. D. Helen by be could considered to be a fact finder Barton, and Robert R. Rules of Texas (P.M.) “specific ly instance” of the witness (5th 608, Manual, Rule at VI-41 Evidence ing, and it purpose was offered “for of 613(b) ed.1998); (formerly Tex. Tex.R. Evid. Therefore, attacking credibility.” ... his un 612(b)); State, Carroll 916 v. R.Crim. Evid. express der the terms Texas Rule of Crim 494, (Tex.Crim.App.1996). 500-01 S.W.2d 608(b), prior inal Evidence may inquired not be into on cross-examina Texas adoption Since the of the former proven by tion nor extrinsic See evidence. 1987, at least Rules of Criminal Evidence State, 546, v. Gonzales 929 S.W.2d 549 that courts that evidence two have indicated 1996, State, ref'd); App. pet. Ruiz v. — Austin ac complainant previously has made false a 302, (Tex.App. 891 S.W.2d 306 Antonio — San cusations is admissible demonstrate 1994, ref'd); State, pet. Ramirez 830 v. falsity Lape v. of the accusation at issue. See 827, (Tex.App. Corpus S.W.2d 828-29 — State, 949, (Tex.App.— 955-56 1992, pet.). Christi ref'd); 1994, pet. [14th Dist.] Houston 608(b) 260, substantially Rule 262-63 Hughes to Rule v. similar ref'd). 608(b) 1993, pet. of the (Tex.App. Federal Rules of Evidence. Worth — Fort But the ad exception attempted federal rule an to reconcile the contains Neither that provides specif- is relevant here. It of this evidence with Rule mission indicated, however, may, Hughes ic instances of the conduct of a witness court, “in the be if the de probative discretion if the evidence would admissible untruthfulness, inquired truthfulness that it in or be fendant established demonstrated terest, bias, testify falsely. into on ... or motive to See cross-examination the witness concerning (citing Moody at 827 for truth- S.W.2d 263 v. witness’ character 850 (Tex.Crim.App.1992)). fulness untruthfulness-” S.W.2d 891 Fed.R.Evid. 608(b)(1); Reid, apparent Moody, the distinc see United 634 court drew States (9th Cir.1980) (Federal merely attacking a F.2d tion between evidence 473-74 608(b)(1) and evi for truthfulness of a witness’s character authorized cross-examination motive showing the witness had a his state- regarding defendant false dence 827 cause him lie. See credi- bias would purpose attacking ments for if at 891. The court concluded bility). appeals of criminal has S.W.2d The court 608(b), show bias or motive it did not the evidence adopting noted that in defendant, evi- against provided the federal the witness adopt exceptions 406 pursuant confi admitted found that the State's interest in the
denee should be
id,.;
See
right
dentiality
juvenile
constitutional
of confrontation.
out
proceedings was
also Carroll v.
weighed by
right
see
S.W.2d
the criminal defendant’s
Driggers
(Tex.Crim.App.1996);
juvenile
cross-examine a
witness about
(Tex.App.
probationary
effect of
status on his testimo
— Texarkana
ref'd); Gonzales,
pet.
at 549.
ny.
scope
The trial
effort to limit the
court’s
false
Lopez argues only
that P.M.’s
concerning
of this
a wit
cross-examination
character
accusations are relevant
juvenile
the Sixth
ness’s
record violated
any
does
in
truthfulness and he
not assert
Alaska,
Amendment.
Davis v.
415 U.S.
fringement
right of con
of his constitutional
at
v. United
(1895).
Davis,
cross-
appropriate
the Court
tation is violated when
407 counsel investigation. appellant’s limited. v. examination is See Hurd as (Tex.Crim.App.1987). 252 there 725 S.W.2d conceded falsity allegations. Id. appropriate these scope cross-examination the truth or this rul- necessarily upheld A entitled appellate broad. defendant is at 262. merely avenues pursue surmising appellant all of cross-examination ing, motive, reasonably expose calculated to jury to able to “draw be wanted testify. or interest bias witness had cried complainant inference (Tex. any “showing Lewis of falsi- there been wolf.” Had Crim.App.1991). discussing When would have ty,” the other two accusations scope bias, criminal interest, breadth of that the court of as showing admissible been held, appeals bar, has at Id. at 263. In the ease motive. evidence that report contains some Evidence show bias or interest excluded could range P.M.’s mother witness in a cause covers a wide the accusation itself report external from false. The the field of circumstances be considered coupled jury, may helpful bias be when probable which or interest have been wife, testimony encompasses Appellant’s inferred is infinite. The rule with circumstances, any motive determining when whether all facts and which P.M. experience, human to show tested tend interest in a false Appellant. that a witness shade his helping side purpose to establish one disagrees analysis with this be The State only. of the cause appellate two of the three intermediate cause State, 482 Jackson v. Hughes pri- issued upon were opinions relies (quoting Insurance Crim.App.1972) Aetna adoption rules of of the former or to (5th Paddock, Company v. F.2d evidence. See Rushton criminal Cir.1962)). (Tex.App. Corpus Christi *6 — State, 1985, al 689 S.W.2d Appellant’s pet.); in this ease Polvado v. defense lied, 945, (Tex.App. about leged complainant [14th Dist.] that the either 950 —Houston ref'd); State, 1985, abused, abused, pet or if who the Thomas v. 669 S.W.2d being about 1984, was, that, 420, (Tex.App. Dist.] neglected [1st and a 423 perpetrator as —Houston ref'd). Nevertheless, child, get parties trial both seek pet. he lied to attention. The which, turn, Lape v. in prevented appellant’s counsel from in State cited court reliance State, Hughes. complainant prior Lape questioning persuasively the about a See (Tex.App. physical lodged against S.W.2d 957 accusation abuse 893 —Houston ref'd). 1994, pet. Lape, investigated his the Dist.] mother which TDPRS had [14th sought testimony the Complainant’s out in 1991. sexual elicit and ruled defense lodged alleged of child molesta April claims were of 1993 mother of victim charges previously brought false beginning incidents in December of tion had alleging ap argues this line of child abuse the defendant. Appellant 1992. relevant, highly found and questioning appropriate it was court it pellate was because 609(a)4, laying bring a foundation forward admissible been prior had convicted false of the witness’s false accusation. mother But the police report, 262-63 misdemeanor. Hughes v. ref'd). found that trial court had erred in pet. also (Tex.App. Worth — Fort allowing cross-examination into trial court excluded evidence further Hughes, the of sexual details behind that conviction to subsequent accusations and general established bias and motive. “While neither had been show assault because one, prevented it good case noted that is a in this as at 262. The court rule false. Id. presenting] from evidence cru merely appellant that: were both of these accusations in this ease defense jail await to his defense. His had died in while cial accused first Lape’s eonvic behind Felicia trial, subsequent was still the details ing accusation and turpitude it involves dis- of moral in that came under crime 4. conviction prior misdemeanor Lape 958. 609(a) lying honesty. S.W.2d at police to a officer is a because confronting from his accuser this ignored appellant tion in 1986 are too similar to be manner, to the Constitu jury to hear the evidence.” the Rule must bow was entitled VI, 2; cl. Carroll v. Lape v. tion. U.S. Const. art. ref'd). App. pet (Tex.Crim.App. [14th Dist.] —Houston P.M., 1996). inves prior physical abuse claim of tigated agency “ruled out” a state therefore, We, again conclude investigator, carrying while not the full permit the trial court erred when it did not determination, clearly weight judicial aof pri- about a appellant to introduce evidence tendency the witness part shows a on the accusation. As we stated our or false up damaging to make stories about others. say beyond a opinion, we cannot previous Lape sought The motive to establish the error made no reasonable doubt that custody attempts her to win the witness was Lopez’s en contribution to the conviction. bar, of her from him. In the case at son based on P.M.’s lack of tire defense was motive, testimony presented through as jury veracity lie. The did and motives to wife, appears be P.M.’s ef appellant’s problems emotional not know about P.M.’s get jealousy over forts to attention and they them had earlier manifested and how appellant’s marriage recent and a corre mother in an selves sponding loss of attention. If the judged to be unfounded. however, Lape, upheld The court in also heard this evidence or seen objection ruling sustaining the State’s P.M.’s testimo report, it could have viewed questions specific to the mother about in- ny differently may have reached a dif stances in which she had stated that her ferent result. (the daughter complainant) had been un- of error is sustained Appellant’s point first unwilling per- truthful. The court seemed necessary to further it and we do not find mit such under rule 608 unless point of error. For the id., his other consider was somehow tied to Rule 609. See herein, judgment of the stated permitted reasons at 959. The mother was the case is re- testify trial court is reversed reputation to her child’s for untruth- fulness, for a new trial. although not the details manded 608(a). id.; such incidents. See Tex.R. Evid. by: Dissenting opinion KAREN complain When the witness is the ANGELINI, Justice. *7 himself,
ant we think the trial court must be particularly vigilant securing in the accused’s Justice, ANGELINI, dissenting. Lape, Rule right of confrontation.5 In The evidence re- respectfully I dissent. 608(b) analysis the mother of the concerned prior accusation of abuse garding P.M.’s (albeit accuser, she was shown to have her excluded properly mother was against his lying). Hughes own motives for In both and bar, impeach in for the case at the candidate 608(b) “[sjpecific in- provides that jury The has the ment was the accuser. witness, a focusing of the conduct of have of on the stances benefit we do not credi- stand, attacking supporting his purpose of accuser on the witness his demeanor is ..., bility, of crime other than conviction observable. How the accuser addresses cross examina- inquired not be into on questions probing prior similar false accusa by extrinsic proved nor extremely helpful tion of the witness tions would be to the Appeals interest, of Criminal The Court determining in motive or bias. To evidence.” 608(b) “very restrictive and that this rule is prevent has held the extent Rule would marginally relevant evidence.” irrelevant or 5. The trial court has considerable discretion in and authority Appellant's right to area. wit this this cross-examine when a trial court uses But Nevertheless, confrontation, cognizant right nesses is broad. we are infringe accused's on the authority preclude, among court's of the "trial Rodriguez of discretion. See v. is an abuse there issues, harassment, things, other confusion (Tex.App. — Waco witness, endangerment delay, to the needless and pet.). admissibility highly prejudicial, repetitive majority Moody The concludes exceptions.” v. incident. for no See allows report concerning P.M.’s (Tex.Crim.App. TDPRS however, have 1992). allegation against mother “could Moody, indicat Court in The coupled with helpful jury, been to the when are of considerations ed that “constitutional recently, Appellant’s wife in deter- import to this issue.” Id. More some any or in- had motive mining a conflict whether P.M. recognized has that if the Court 608(b) against terest in a false accusation right and the cross between Rule exists, I The would Appellant.” disagree. evidence a witness the constitutional examine complainant had made a merely show the right prevail. confrontation would See Car prior allegation apparently that was not roll had a in this case It this constitu true —not he bias 501(Tex.Crim.App.1996). is or a to lie in analysis against that the this motive right tional to confrontation defendant major- majority on. this this opinion relies I do believe case defendant. “appears ity in case analysis applies this case however. states “motive” this this get to be efforts to attention majority recognizes that the Court of marriage jealousy Appellant’s over recent Moody Appeals appar “drew Criminal corresponding loss of That attention.” merely at ent between evidence distinction Appellant’s through evidence did come in tacking a witness’s character for truthfulness wife, nothing to do with the com- but showing that the witness had a evidence plainant’s prior accusations of abuse motive or bias that would cause him lie." his mother. majority properly then states concluded, Moody properly I later reaf conclude that the evidence was 608(b) Carroll, and, therefore, that if the under Rule I firmed excluded show bias motive witness dissent. defendant, be evidence should admit
ted pursuant constitutional Thus,
confrontation. it is clear that evidence 608(b) is,
that is excludable under Rule nev
ertheless, admissible if it shows bias or mo
tive the witness to lie but is not admissi merely
ble the purpose attacking if it is
a witness’s character for truthfulness. Gonzales v. SANCHEZ, Appellant, David ref'd) App. (stating pet. —Austin greater granted prove latitude wit Texas, Appellee. STATE prove bias than to ness’s witness’s untruth character). Therefore, ful whether evi No. 04-97-00799-CR. dence of P.M.’s *8 Texas, improperly Appeals was Court of mother excluded depends upon prove it Antonio. whether tended he San or motivated to lie when he biased testi Feb. 1999. it appellant fied whether mere ly showed untruthful character. attempted prove that P.M. had
Lopez on a prior a false accusation
made attempt This was an obvious
occasion. impeach
use a act conduct to
P.M.’s character truthfulness or motive to lie. The most
show P.M.’s bias P.M. made a prior is that prove mother of abuse investigator had “ruled out”
that the TDPRS