Bates v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

DALLY, Judge.

We have granted the appellant’s motion for leave to file his motion for rehearing to reconsider his first ground of error which reads:

“THE LEARNED TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO ALLOW THE WITNESS, JOHN TANNER, AN UNDER *141 COVER DEPUTY SHERIFF WITH THE HARRIS COUNTY, TEXAS SHERIFF’S OFFICE, TO TESTIFY AS A REBUTTAL WITNESS TO REBUT CERTAIN TESTIMONY GIVEN BY THE STATE’S WITNESS, NUKIE FONTEN-OT, DURING THE STATE’S CASE IN CHIEF, FOR THE REASONS HEREINAFTER SET FORTH IN THIS BRIEF.”

After reconsidering this ground of error we are confident that it was properly decided and that the applicable law was clearly stated in the majority opinion on original submission. However, the appellant cites many recent cases which he argues are in conflict with our holding in this case and of which he has not obtained the “benefit;” we agree that two of the cases he cites are in conflict with our holding in this case. We will therefore discuss these cases and restate the law that we believe is applicable.

The appellant’s statement of the ground of error omits an important fact, one which was also not recognized in the dissenting opinion on original submission. The testimony of Fontenot, which appellant wanted to “rebut,” was not elicited by the State, but was elicited by the appellant on cross-examination of Fontenot. The appellant is complaining that he was not permitted by extrinsic evidence — that is by the testimony of Tanner — to contradict the testimony that he elicited from Fontenot.

The appellant is complaining that the testimony of Tanner was not admitted before the jury; appellant’s ground of error is not concerned with his constitutional right of confrontation and cross-examination of the State’s witness Fontenot. Davis v. Alaska, 415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974), and Evans v. State, 519 S.W.2d 868 (Tex.Cr.App.1975) are therefore not applicable and not helpful in deciding the issue presented by the appellant in this ground of error.

The applicable rule is stated by Professor McCormick as follows:

“[T]he courts maintain the safeguarding rule that a witness may not be impeached by producing extrinsic evidence of ‘collateral’ facts to ‘contradict’ the first witness’s assertions about those facts. If the collateral fact sought to be contradicted is elicited on cross-examination, this safeguarding rule is often expressed by saying that the answer is conclusive or that the cross-examiner must ‘take the answer.’ .

“What is to be regarded herein as within this protean word of art, ‘collateral’? The inquiry is best answered by determining what facts are not within the term, and thus finding the escapes from the prohibition against contradicting upon collateral facts. The classical approach is that facts which would have been independently provable regardless of the contradiction are not ‘collateral.’

“Two general kinds of facts meet the test. The first kind are facts that are relevant to the substantive issues in the case .

“The second kind of facts meeting the above mentioned test for facts that are not collateral includes facts which would be independently provable by extrinsic evidence, apart from the contradiction, to impeach or disqualify the witness. Among these are facts showing bias, interest, conviction of crime, and want of capacity or opportunity for knowledge. Facts showing misconduct of the witness (for which no conviction has been had) are not within the second kind of facts, but are collateral, and if denied on cross-examination cannot be proved to contradict.

“Finally, a third kind of fact must be considered . . . . [T]he contradiction of any part of the witness’s account of the background and circumstances of a material transaction, which as a matter of human experience he would not have been mistaken about if his story were true [is permissible].” [Emphasis added.] McCormick, Evidence, Sec. 47 (2d ed., 1972).

A review of the authorities demonstrates that this Court has long followed the rule as stated by McCormick.

The following statement of the rule appears in Sims v. State, 4 Tex.App. 144 , 145 (1878):

*142 “The rule in such cases is that, upon cross-examination to try the credit of a witness, only general questions can be put, and he cannot be asked as to any collateral and independent fact merely with a view to contradict him afterwards by calling another witness. The danger of such practice is obvious, besides the inconvenience of trying as many collateral issues as one of the parties might choose to introduce, and which the other could not be prepared to meet.”

In Drake v. State, 29 Tex.App. 265 , 15 S.W. 725 (1890), the prosecuting attorney, during his cross-examination of a defense witness, elicited testimony with regard to a collateral matter. He was then permitted, over the defendant’s objection, to impeach this collateral testimony through other witnesses. The Court held that such impeachment was impermissible, and reversed the judgment. In the course of its opinion, the Court reviewed the authorities as follows:

“ ‘When a witness is cross-examined on a matter collateral to the issue his answer cannot be subsequently contradicted by the party putting the question.’ Nor is it proper to allow a witness to be cross-examined as to any matter which is collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence. Whart.Crim.Ev. (9th Ed.) Sec. 484; Rainey y. State, 20 Tex.App. 473 ; Hart v. State, 15 Tex.App. 202 ; Johnson v. State, 22 Tex.App. 206 , 2 S.W.Rep. 609; Brite v. State, 10 Tex.App. 368 ; Stevens v. State, 7 Tex.App. 39 . What is collateral and irrelevant matter within the rules above stated? In his work on Criminal Evidence (9th Ed. Sec. 484), Mr. Wharton, quoting from the opinion in Hildeburn v. Curran, 65 Pa.St. [59,] 63, says: ‘The test of whether a fact inquired of in cross-examination is collateral is this: Would the cross-examining party be entitled to prove it as a part of his case tending to establish his plea?’ This test has been quoted and adopted by this court in Hart v. State, 15 Tex.App. 202 , and in Johnson v. State, 22 Tex.App. 206 , 2 S.W.Rep. 609.” 15 S.W. at 727 .

More recently, the correct rule was stated and applied in Arechiga v. State, 462 S.W.2d 1, 2 (Tex.Cr.App.1971):

“In Gatson v. State, Tex.Cr.App., 387 S.W.2d 65 , this Court held that when a witness is cross-examined on a collateral matter even to impeach his testimony, the cross-examining party cannot then contradict the witness. The test as to whether a matter is collateral is whether the cross-examining party would be entitled to prove it as a part of his case tending to establish his plea. Britton v. State, 130 Tex.Cr.R. 241 , 93 S.W.2d 744 ; 1 Branch’s Annotated Penal Code 221, Sec. 200. See: Corpus v. State, 463 S.W.2d 4 (1970).

“If appellant as a part of his direct evidence, had tried to prove that Serna was in the state hospital on a particular date it would have been inadmissible. The Court, in excluding the inadmissible evidence, in no way violated the due process clause of the Fourteenth Amendment to the United States Constitution as alleged by appellant.”

The two principal cases on which appellant relies are Montemayor v. State, 543 S.W.2d 93 (Tex.Cr.App.1976), and Binnion v. State, 558 S.W.2d 485 (Tex.Cr.App.1977), which were also relied upon in the dissenting opinion on original submission. In Montemayor , the prosecution was for aggravated assault on a peace officer. The defendant contended he acted in self-defense. During his cross-examination by defense counsel, Officer Menchaca, the complaining witness, admitted knowing one Oscar Antu but denied ever having a fight with him. The defense later called Antu as a witness, but the trial court refused to permit Antu to testify to an alleged beating he had received at the hands of Officer Menchaca. We held that the proffered testimony was proper impeachment and was erroneously excluded.

In Binnion , the prosecution was for delivery of marihuana. The State’s chief witness was an undercover agent who denied, during cross-examination by defense counsel, ever smoking marihuana or offering to *143 sell heroin to the defendant. The defendant subsequently offered the testimony of two other witnesses who would have contradicted this testimony by the agent. Citing Montemayor , we held that the proffered impeachment testimony was erroneously excluded by the trial court.

We have concluded that Montemayor and Binnion were not correctly decided. In both cases, the facts adduced during cross-examination were collateral; that is, they would not have been independently provable regardless of the contradiction: the facts were not relevant to the substantive issues in the case; the facts were not independently provable by extrinsic evidence, apart from the contradiction, to impeach or disqualify the witness; the facts were not part of the background of a material transaction about which the witness would not have been mistaken if his story were true. To the contrary, the facts concerned alleged acts of misconduct by the witness for which no conviction had been had. The holding in Montemayor and Binnion , that the defendant should have been permitted to elicit testimony on a collateral matter during cross-examination of a State witness and subsequently impeach that testimony through a different witness, is contrary to the well-established rule in this and other jurisdictions. Montemayor and Binn-ion are overruled to the extent they conflict with this opinion and the majority opinion on original submission.

In Cooper v. State, 578 S.W.2d 401 (Tex.Cr.App.1979), not cited by appellant, the trial court refused to permit a defense witness to testify on the grounds that the witness had entered the courtroom after the Witness Rule had been invoked and his proffered testimony constituted impeachment of a State witness on collateral matters first brought out during cross-examination. The majority opinion in Cooper , while upholding the action of the trial court on the first ground, stated that the trial court had been in error concerning the second ground. The majority cited Binnion and Montemayor with approval. To this extent, the majority opinion in Cooper is in error and is overruled.

In the instant case, Fontenot denied, during cross-examination by defense counsel, negotiating an unlawful gun sale to Tanner and asking Tanner to kill a man. These matters were wholly collateral, involving alleged acts of misconduct by Fontenot for which no conviction had been had. The trial court did not err in refusing to permit the impeachment of Fontenot on these collateral matters.

The other cases cited by appellant involve situations in which this Court concluded that the trial court had improperly excluded evidence offered by the defendant tending to show a witness’ bias, prejudice, interest, or motive to testify against him. Blair v. State, 511 S.W.2d 277 (Tex.Cr.App.1974); Jackson v. State, 482 S.W.2d 864 (Tex.Cr.App.1972); Simmons v. State, 548 S.W.2d 386 (Tex.Cr.App.1977); Randle v. State, 565 S.W.2d 927 (Tex.Cr.App.1978). Of course, the accused should be allowed great latitude to show the bias or prejudice of a witness against him. Indeed, evidence of pending criminal charges against a witness is admissible under certain circumstances for the limited purpose of showing bias or motive as an exception to the statutory rule that unadjudicated criminal offenses may not be used for impeachment. Art. 38.29, V.A.C.C.P.; Randle v. State, supra; Castro v. State, 562 S.W.2d 252 (Tex.Cr.App.1978). But no charges had been brought against Fontenot for either of the alleged activities to which Tanner would have testified. It should also be noted that appellant did not call Tanner to testify be fore the jury concerning Fontenot’s involvement in the Mize robbery although the trial court ruled that such testimony was admissible. See Adams v. State, 577 S.W.2d 717 (Tex.Cr.App.1979). Finally, the record does not show that Tanner had any personal knowledge as to whether or not the State had offered Fontenot any consideration for his testimony. We adhere to our opinion on original submission that the trial court did not abuse its discretion in concluding that the testimony in question was not admissible to show Fontenot’s bias or motive to testify against appellant.

*144 The appellant’s motion for rehearing is overruled.

ROBERTS, J., concurs in result.

PHILLIPS, J., dissents.

ODOM and CLINTON, JJ., not participating.