Bartolome ZUNIGA, Appellant, v. STATE of Texas, Appellee.
No. 13-81-157-CR
Court of Appeals of Texas, Corpus Christi
May 26, 1983
Rehearing Denied Sept. 15, 1983
664 S.W.2d 366
It is true that in several instances the prosecution, in the punishment phase of the trial, has been permitted to show a defendant‘s past connection with drugs. In Cleveland v. State, 502 S.W.2d 24 (Tex.Cr.App. 1973), there was no error in allowing the defendant to testify that he had bought marijuana in the past (the defendant had previously pleaded guilty to possession of marijuana). In Holmes v. State, 502 S.W.2d 728 (Tex.Cr.App.1973), there was no error in admitting evidence showing the defendant‘s hospitalization for drug addiction (the offense being burglary with intent to commit theft). In McCrea v. State, 494 S.W.2d 821 (Tex. Cr.App.1973), the State in a prosecution for sale of marijuana was permitted to question the defendant as to his possible drug addiction, marijuana addiction, and prior use of methamphetamine.
One basis for distinguishing those cases from the present appeal is that in Cleveland, Holmes, and McCrea the evidence related only to the defendant‘s own predilections or conduct. In this appeal, to the contrary, Dr. Coons’ testimony was concerned with the effects of methamphetamine on users in general.
As authority for reversal, appellant relies primarily on Martinez v. State, 138 Tex. Cr.R. 51, 134 S.W.2d 276 (1939). Martinez held that an officer‘s testimony regarding the effects of marijuana in a prosecution for possession of marijuana was inadmissible because such effects were not in issue in such a prosecution. The State endeavors to distinguish Martinez on the basis that it was decided before the advent of separate hearings on the questions of guilt and punishment. Martinez, however, has been cited with approval by the Court of Criminal Appeals since the introduction of the bifurcated system. See Franklin v. State, 494 S.W.2d 825 (Tex.Cr.App.1973).1
Dr. Coons’ testimony, of course, did not relate to appellant‘s prior criminal record, his general reputation, or to his character,
The judgment of conviction is reversed and the cause is remanded for new trial.
Reversed and Remanded.
Robert Salinas, Dist. Atty., Edinburg, for appellee.
Before NYE, C.J., and KENNEDY and GONZALEZ, JJ.
OPINION
NYE, Chief Justice.
Appellant was convicted of the Class A misdemeanor official oppression by mistreatment under
At the time of the incident which gave rise to this prosecution, appellant was an officer of the Mission, Texas, police force. Appellant was charged with intentionally mistreating Juanita Barrera by restraining her, while acting under color of his office or employment, and knowing that his conduct was unlawful. Barrera testified that late in the evening of April 28, 1980, she was working at Gilbert‘s Fried Chicken in Mission. At 11:00 p.m., closing time, she telephoned her boss to inform him of where she placed the key to the store and to tell him that she did not have a ride home. Acting on the suggestion of her employer, she walked to the police department to ask for a ride. There, she was told that there was no one available but that she could wait for a ride with someone from the county sheriff‘s department. After about a half an hour, she became worried about her children and tired of waiting, so she struck out from the police station on foot with the intent of walking home. According to her testimony, somewhere along the way, she was stopped by a Mission police officer who offered her a ride home. She identified the appellant as that officer. Barrera voluntarily got in the police car. Instead of taking her straight home, the appellant turned off on a dead end road, saying something about having to check something down there, parked the car and turned off the lights. He then offered her something, which she described as a small, white pill, “for her nervousness,” and said he wanted “to be with her.” Barrera became frightened, got out of the car and fled on foot. Barrera admitted that the appellant did not touch her, threaten her or attempt in any way to force her to remain in the car after they had stopped. However, she bruised herself when she fell into a ditch in fleeing from appellant. She testified that she became frightened as soon as appellant deviated from the path to her home.
The appellant testified that he had seen Barrera twice on the night in question, once at the police station and walking on U.S. Highway 83 later in the evening. He admitted stopping to question her but denied picking her up. He maintained that he refused her a ride home because it was outside the city limits. Appellant admitted that he had trained at a police academy and was knowledgeable of what is unlawful under the Penal Code.
By his first four grounds of error, appellant claims he was denied his federal and state constitutional right to confront the witnesses against him when the trial court refused to allow him to cross-examine Barrera as to certain matters designed to demonstrate interest, motive and bias of Barrera against appellant.
Appellant‘s trial counsel attempted to question Barrera about whether or not she was pressing a civil claim against the City of Mission in connection with the incident
Next, appellant‘s counsel questioned Mrs. Barrera about whether she had previously filed other complaints against other police officers. This was denied by Barrera, who admitted that she had complained unofficially to an officer investigating the present case that an officer Flores, a friend of the appellant, was “following her and bothering her” prior to the trial.
An accused‘s right to confront the witnesses against him and, through reasonable cross-examination, place the witness in his proper setting and test the weight and credibility of his testimony has long been held essential to a fair trial. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Spain v. State, 585 S.W.2d 705 (Tex. Cr.App. 1979). Quoting from Davis, the Court of Criminal Appeals in Spain stated:
“The erroneous denial of this right to confrontation is ‘constitutional error of the first magnitude and no amount of showing of want of prejudice [will] cure it.‘” 585 S.W.2d at 710.
See also Evans v. State, 519 S.W.2d 868 (Tex.Cr.App.1975).
In this context, the accused is to be allowed wide latitude in showing any fact which would tend to establish bias or interest on the part of any witness testifying against him. Harris v. State, 642 S.W.2d 471 (Tex.Cr.App.1982); Spain v. State, supra, at 710; Simmons v. State, 548 S.W.2d 386, 388 (Tex.Cr.App.1977). We hold that evidence of the bringing of a civil suit is proper evidence of bias or interest. Cox v. State, 523 S.W.2d 695, 700 (Tex.Cr.App.1975); Rhodes v. State, 387 S.W.2d 413 (Tex.Cr.App.1965); Blake v. State, 365 S.W.2d 795 (Tex.Cr.App.1963).
The State argues that appellant failed to preserve his error because there was never a direct ruling prohibiting Barrera from answering the initial question and because appellant‘s counsel never attempted to re-ask the questions concerning the civil claim after the in camera hearing. The record shows that the trial judge did expressly exclude all evidence of a suit against the city and of the letter of intent allegedly sent on behalf of Barrera. The original offer and the showing of what Barrera‘s testimony would have been on the matter of the civil claim were sufficient to preserve the error. Loyd v. State, 506 S.W.2d 600, 601 (Tex.Cr.App.1974). Cf. Passmore v. State, 617 S.W.2d 682 (Tex.Cr. App.1981).
The record supports the State‘s argument with regard to the evidence of other complaints about police officers. It appears there was no ruling from the court on that evidence, nor was there an attempt to offer such evidence before the jury. The ground of error concerning appellant‘s right to cross-examine Barrera concerning other complaints about police officers is over-
The State contends that Barrera‘s denial at the in camera hearing of any knowledge about the civil claim against the city justifies the trial court‘s action in precluding the appellant from attempting to impeach her credibility by questioning her about such claim. We disagree. The essence of the error committed was the denial of an opportunity to question the witness in the presence of the jury. The jury should have been given the opportunity to observe Barrera‘s response to the questions. “An unbelievable denial of the existence of a fact can be even more probative as to lack of credibility than an affirmative admission of the fact.” Spain v. State, supra, at 710; Harris v. State, supra, at 480. Appellant‘s grounds of error one, two and three are sustained.
Appellant contends that he should have been tried for false arrest, a Class B misdemeanor, rather than official oppression. His argument is that the false arrest statute is more specific than the official oppression provision, and should therefore control. Compare
Appellant‘s argument fails to consider the difference between the two offenses. Simply put, false arrest is unlawful restraint of an individual by another individual.
The appellant challenges the sufficiency of the evidence to support his conviction. The record in this case, as briefly summarized above, presented the jury with conflicting evidence on whether the appellant‘s conduct amounted to “mistreatment” as that term was defined in the indictment and charge. The jury was the sole judge of the credibility of the witnesses and the weight to be given their testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App.1978). Viewing the evidence in the light most favorable to the jury‘s verdict, as we are charged with doing in this direct evidence case, we hold that the evidence was sufficient to sustain the judgment of conviction.
Appellant alleges that
The particular object of appellant‘s complaint is the inclusion of the term “mistreatment” in the statutory definition of the offense of official oppression. The pro-
“(a) a public servant acting under the color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment . . . that he knows is unlawful;”
Therefore, not all forms of mistreatment are proscribed, but only those which are “unlawful.” “Unlawful” is defined by the Penal Code as conduct which is “criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to a justification or privilege.”
Appellant also brings a number of other complaints about the indictment and the jury charge. We have considered each of them and find them without merit. They are all overruled.
In accordance with our disposition of the first three grounds of error, we reverse the judgment of the trial court and remand the cause for a new trial.
OPINION ON MOTION FOR REHEARING
On motion for rehearing, the State argues that this Court erred in sustaining appellant‘s first three grounds of error. The State argues that appellant failed to preserve error by not obtaining an adverse ruling on his attempt to question Mrs. Barrera about the civil claim against the City of Mission. We disagree. The record indicates that appellant‘s counsel asked Mrs. Barrera about the claim. State‘s counsel objected to the question, a bench discussion was held, and the trial court gave defense counsel “an opportunity to go into this problem at the recess time.”
Later, out of the presence of the jury, the issue was presented to the court. Defense counsel argued that he should be able to cross-examine Mrs. Barrera in front of the jury about any civil claim against the city because the civil claim gave her a financial interest in fabricating a story against the officer. During the argument, defense counsel presented to the court a letter from Mrs. Barrera‘s attorney concerning the possible claim. Out of the presence of the jury, the trial court repeatedly ruled that evidence of the claim was inadmissible. At one place in the record, the trial court said, “I‘m going to rule that this is not admissible.” Later, the court said, “(M)y ruling is that the notice of intention to the City of Mission, whatever it amounts to, or the written instrument itself is not admissible. You have your objection and you have your bill and I think a full record of it.” And again, the court said, “I‘m going to rule it‘s inadmissible and give you a complete bill on it.” Finally, the Court reiterated:
“(M)y final ruling as far as a suit against the city is concerned and that letter is concerned, is that it will be excluded and you can have your objections and exceptions and if you want to expand on it later after this case goes to the jury, you can do so. Now, let‘s go to the next question.”
The State is correct in pointing out that the letter was never offered as evidence in front of the jury. The State is wrong in arguing here that the appellant never received an adverse ruling from the court with regard to whether Mrs. Barrera had filed a claim against the city of Mission. As noted above, the “final ruling as far as a suit against the city is concerned and that letter is concerned, is that it will be excluded.”
The State also argues in its motion for rehearing that defense exhibit no. 4 (the letter) was a duplicated copy and, because of that, was inadmissible. We again disagree.
We have carefully considered all of the State‘s grounds of error in its motion for rehearing, and they are overruled.
Jose Raul BARRERA, Appellant,
v.
STATE of Texas, Appellee.
No. 13-81-365-CR.
Court of Appeals of Texas, Corpus Christi.
June 9, 1983.