# Carroll v. State

> Court of Criminal Appeals of Texas · January 24, 1996 · 916 S.W.2d 494

URL: https://www.frixlaw.com/law-library/cases/9775386

## Case

- **Full name:** Johnny Eugene CARROLL, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 24, 1996
- **Citations:** 916 S.W.2d 494; 1996 Tex. Crim. App. LEXIS 9; 1996 WL 22736
- **Precedential status:** Published
- **Opinion:** Dissent by Mansfield
- **Judges:** Meyers, Keller, Baird, White
- **Cited by:** 384 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/9775386

## How later opinions describe it (automated extraction)

- holding that, even in the absence of express agreement with the State, cross-examination of witness with pending criminal charges about any motivation witness might have to testify favorably on the State’s behalf should be allowed
- recognizing that confrontation is the check and balance that ensures fairness 73 in our adversary system of justice, and cross-examination is the essential means by which opponents test evidence proffered against them
- recognizing that confrontation is the check and balance that ensures fairness in our adversary system of justice, and cross-examination is the essential means by which opponents test evidence proffered against them
- characterizing the purposes of cross-examination as: to identify the witness within his community so that independent testimony may be offered regarding his reputation for veracity; to allow the jury to assess witness credibility; and to allow facts to be brought out tending t…
- holding impeachment of the witness to show bias toward the State should have been allowed because the witness had a pending criminal charge with the same prosecutor’s office with possible punishment as a habitual criminal

## Opinion text

*502 MANSFIELD, Judge,
dissenting.
Appellant was convicted of murder and was sentenced to thirty years’ confinement in the Texas Department of Criminal Justice— Institutional Division. Appellant’s conviction was affirmed by the Fourteenth Court of Appeals. Carroll v. State, No. A14-93-01141-CR, 1994 WL 605870 (1994). We granted appellant’s petition for discretionary review to determine if the Court of Appeals erred in holding that a State’s witness may not be cross-examined about a pending aggravated robbery charge against him. As I believe the court of appeals’ holding is correct, I respectfully dissent.
The State presented two witnesses who testified they were in the bar at the time the murder was committed. Charles Fitzgerald testified appellant showed him a pistol and observed him arguing with Robert Brzowski, the victim. Fitzgerald testified further appellant followed him and Mr. Brzowski to another table, shot Mr. Brzowski with the pistol and continued shooting at Mr. Brzow-ski as he fled toward the back of the bar. Appellant introduced evidence, including the testimony of two police officers who interviewed Fitzgerald after the shooting, that Fitzgerald was intoxicated at the time of the shooting.
The second witness, Herman Russell, the bartender, testified and gave essentially the same version of what occurred as Fitzgerald. Russell testified appellant and Mr. Brzowski argued over a mutual female acquaintance and things went down hill from there, concluding with appellant shooting and killing Mr. Brzowski.
At trial, appellant sought to impeach Russell with evidence of prior felony convictions, i.e., two convictions for cattle theft from 1962 and 1965. Though conceding Texas Rule of Criminal Evidence 609(b) would ordinarily bar use of the convictions for impeachment as the convictions were too remote (over ten years old), appellant claimed they were relevant as they could be used to enhance punishment if Russell were convicted of his pending charge. Additionally, appellant sought to impeach Russell with evidence of a pending aggravated robbery charge and that he was currently incarcerated awaiting trial on that charge. Appellant alleged Russell was potentially biased because his testimony in the present case might affect the outcome in his pending aggravated robbery case, and he was entitled to show the jury Russell’s testimony might be influenced by the charge pending against him.
At the hearing, Russell testified there had been no deals made with the State concerning the pending aggravated robbery charge in relation to his testimony in the present ease. He testified he had already given a statement regarding the present case (the killing occurred on April 11, 1992) prior to being arrested on the aggravated robbery charge (the robbery allegedly was committed in 1988). Finally, he testified his testimony in the present case would not be affected by the case pending against him, which was scheduled to be prosecuted in a different court. The trial court denied appellant’s motion, and Russell testified without being impeached by evidence of his prior convictions or of the pending aggravated robbery charge.
In Ramirez v. State, 802 S.W.2d 674 (Tex.Crim.App.1990), we held that Texas Criminal Evidence Rule 608(b) does not allow a witness to be impeached, for purposes of attacking his credibility, by proof of specific instances of conduct, other than conviction of crimes as provided by Rule 609, either on cross-examination or by extrinsic evidence. Ramirez, at 676. We emphasized that Rule 608(b) is much more restrictive as to impeachment of witnesses by instances of conduct other than convictions than its federal counterpart, and that any federal cases discussing the exception to federal rule 608(b) are not instructive. Ramirez, at 677. We followed our ruling in Ramirez in Moody v. State, 827 S.W.2d 875, 891 (Tex.Crim.App.1992). See also, Tex.Code Crim.Proc., Art. 38.29 (repealed Sept. 1,1986).
We did hold, under now-repealed Art. 38.29, that trial courts should allow the accused latitude to show any fact, including pending charges, which would tend to establish bias or motive of a witness testifying against him. Carmona v. State, 698 S.W.2d 100 (Tex.Crim.App.1985); Green v. State, 676 *503 S.W.2d 359 (Tex.Crim.App.1984); Miller v. State, 741 S.W.2d 382 (Tex.Crim.App.1987). It is important to note that these eases were decided prior to the effective date of Rule 608(b). However, we held in these cases that the trial court has discretion in limiting cross-examination and does not have to permit the accused to show, by impeaching a witness with evidence of a pending unrelated charge, the witness’ bias or motive to testify falsely. Furthermore, we implied the decision of the trial court on this issue shall be subject to harmless error analysis under Texas Rule of Appellate Procedure 81(b)(2). See Alexander v. State, 740 S.W.2d 749, 763 (Tex.Crim.App.1987).
In the present case, the trial judge conducted a hearing on appellant’s motion in limine to permit him to cross examine Russell concerning his prior convictions and his pending charge to show bias for motive to testify falsely. Russell testified he had made no “deals” with the State concerning his testimony and that his testimony would not be affected by the charge pending against him. Appellant also had available Russell’s prior statement, given before Russell was arrested on the aggravated robbery charge. This pri- or statement could have been used for impeachment purposes under Rule 612 had his trial testimony been inconsistent with that prior statement. The trial court chose to believe Russell’s testimony at the hearing which, as the sole judge of the credibility of witnesses at a hearing, the trial court has discretion to do. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993); Meek v. State, 790 S.W.2d 618 (Tex.Crim.App.1990). Appellant fails to demonstrate the trial judge abused his discretion in overruling appellant’s motion and we have held that, where as here, the record supports the decision of the trial court, we will defer to that decision on appeal. Alvarado, supra, at 23 .
Appellant cites Davis v. Alaska, 415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974), in support of his claim that the Confrontation Clause of the U.S. Constitution requires that he be permitted to show any fact, including a pending charge, which would tend to establish bias or motive of a witness (i.e. Russell) testifying against him. The majority, I respectfully assert, reads Davis in a too-broad manner.
In Davis , counsel for petitioner was denied the opportunity to cross-examine a State’s witness as to his status as a probationer, which counsel alleged would tend to show possible motive or bias on the part of the witness. The Supreme Court held “petitioner was thus denied the right of effective cross-examination which would be constitutional error of the first magnitude and no amount of showing or want of prejudice would cure it.” Davis, at 318, 94 S.Ct. at 1111 .
The present case differs markedly from the facts of Davis . First, the witness in Davis was on probation resulting from a recent adjudication of delinquency in a juvenile court and likely could have been impeached with that adjudication under Rule 609(d) had this been a Texas case. Second, unlike in Davis , appellant in the present case had available to him, under Rule 612, for impeachment purposes, Russell’s statement taken at the time of the killing and before he was arrested on the aggravated robbery charge. Third, in the present case, a hearing was held at which the witness (Russell) testified that he would testify truthfully, he would not be affected by his pending charge as to his testimony and no “deal" had been made with the State concerning his testimony. No such examination of the witness (Green) for bias or motive took place in Davis . Fourth, a juvenile adjudication is a final determination by a court and is analogous to a conviction. In the present case the witness had merely been charged with a crime and had not been even tried, much less been convicted. Given these differences, appellant’s right to an effective cross-examination was not denied. 1
There is little doubt — notwithstanding Rule 608(b) — Davis mandates that a criminal defendant be permitted to impeach a State witness on cross-examination with evidence *504 of a pending charge against the witness where a deal concerning the witness’ testimony with the State existed or was under discussion. Similarly, Davis would be implicated where, unlike in the present ease, the defendant had no other reasonable means to impeach the witness (e.g. by a prior statement if inconsistent with his testimony) or had not been afforded a hearing by the court at which he could support his claim of bias or motive of the witness which could be shown only by allowing him to cross-examine the witness — before the jury — as to a pending charge.
Justice Stewart, in his concurring opinion in Davis, wrote: “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.” Davis, at 321, 94 S.Ct. at 1112-13 . At issue in the present case is a pending charge — not a conviction. I would affirm the judgment of the court of appeals. I respectfully dissent.
. It should also be noted that Russell's testimony was essentially identical to the testimony of the other witness, Fitzgerald.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9775386. Public record. Not legal advice.