# Harris v. State > Court of Criminal Appeals of Texas · September 15, 1982 · 642 S.W.2d 471 URL: https://www.frixlaw.com/law-library/cases/9684786 ## Case - **Full name:** Curtis Paul HARRIS, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** September 15, 1982 - **Citations:** 642 S.W.2d 471; 1982 Tex. Crim. App. LEXIS 1092 - **Precedential status:** Published - **Opinion:** Dissent by McCORMICK - **Judges:** Clinton, McCormick - **Cited by:** 54 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9684786 ## How later opinions describe it (automated extraction) - holding that the trial court unconstitutionally restricted a defense attorney’s attempted cross-examination of a material witness about whether she had been charged with murder in connection with the offense at bar - concluding that the trial court’s refusal to allow effective cross-examination of a State’s witness to establish her bias or motive in testifying against the defendant violated the defendant’s right to confrontation ## Opinion text McCORMICK, Judge, dissenting. The Court, in reversing this conviction, is not only misconstruing Davis v. Alaska, 415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 247 (1974), but is also misinterpreting the record in this case. The majority reverses the conviction because the appellant was not effectively allowed to cross-examine the State’s witness, Valerie Rencher, in order to establish her bias or motive in testifying. However, in examining the record, I found that the evidence of her possible bias or motive in testifying did come before the jury. It is a logical tactic to try and diminish to the greatest extent possible any harmful effect that a witness can have on the presentation of one’s case. That is the reason that often when a defendant testifies in his own behalf his attorney will open the direct examination by going into the defendant’s past record. This informs the jury that there may be a reason to question the credibility of a witness’ testimony and takes away the “shock effect” that would occur if this evidence was allowed to be first brought out on cross-examination by opposing counsel. This is exactly what the State did in the instant case. Wanting to be open and above-board with the jury, before even calling Valerie Rencher to the stand, the State called her attorney, Richard Mayhan. May-han’s testimony informed the jury that he had negotiated an agreement for his client whereby if she testified in this case she would not receive more than ten years. On cross-examination he testified that a petition to certify Rencher as an adult in connection with the instant offense had been *481 filed. Surely the jury, after hearing this testimony, realized the potential for bias in Rencher’s forthcoming testimony. To say otherwise would be to render a disservice to the jury’s intelligence. Certainly, Rencher’s attorney, who had negotiated with the prosecution and who was trained in the law, could, better than Rencher, testify as to any agreement and the effect her testimony would have on such agreement. Furthermore, appellant has failed to demonstrate any harm suffered as a result of being denied the opportunity to cross-examine Rencher in regard to this matter. My search of the record reveals that appellant did not preserve a bill of exception as to the evidence he would have brought out on cross-examination. As this Court has held in a multitude of cases, failure to preserve a bill of exceptions is failure to preserve error. Passmore v. State, 617 S.W.2d 682 (Tex.Cr.App.1982); Marini v. State, 593 S.W.2d 709 (Tex.Cr.App.1980). The majority relies on Davis v. Alaska, supra. However, Davis may be distinguished from the case at bar. In Davis, the evidence of the witness’ possible bias and prejudice never got to the jury. In the instant case, before the defense could attempt to bring out the possibility of bias, the State introduced the possibility of bias through their own witness. I agree with the Supreme Court in Davis and in Alford v. United States, 282 U.S. 687 , 51 S.Ct. 218 , 75 L.Ed.2d 624 (1931), that defense counsel has a right to impeach a witness by showing a possibility of bias. But when that evidence is already before the jury, no harm is suffered by limiting the defense’s cross-examination of that witness. I would refer the majority to Justice Stewart’s concurring opinion in Davis where he says: “In joining the Court’s opinion, I would emphasize that the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.” 415 U.S. at 321 , 94 S.Ct. at 1112 . I would suggest that this is one of those cases. Finally, I would refer the majority to the dissenting opinion in Davis. There is no constitutional principle at stake here as the majority argues. As Justice White writes: “This is nothing more than a typical instance of a trial court exercising its discretion to control or limit cross-examination .... ” 415 U.S. at 321 , 94 S.Ct. at 1113 . The record shows that defense counsel was afforded opportunity to conduct extensive cross-examination of Rencher. This Court has long recognized that the manner and extent of cross-examination rests in the discretion of the trial judge and rarely will the trial judge’s discretion be disturbed on appeal. Ray, The Law of Evidence (1980). The majority in Davis v. Alaska, supra, recognized this when they wrote: “Cross-examination is the principle means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach; i.e., discredit, the witness.” (Emphasis added) 415 U.S. at 316 , 94 S.Ct. at 1110 . Where, as in the instant case, the impeaching material has already been laid before the jury, the trial judge’s discretion should be upheld. For the above reasons, I vigorously dissent to the reversal of this conviction. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684786. Public record. Not legal advice.