Carroll v. State

KELLER, Judge,

dissenting.

The majority maintains that Russell’s pending criminal charge was not a “specific instance of conduct” subject to R. 608(b) because it was not his commission of aggravated robbery that appellant sought to cross-examine him about but his vulnerable relationship with the State on account of that conduct. According to the majority, incarceration for a pending criminal charge is not a “specific instance of conduct.” Op. at p. 500. This interpretation conflicts with both the language of the rule and prior caselaw.

If, as the majority argues, underlying criminal conduct is a “specific instance of conduct” but incarceration for the resulting charge is not (because the charge is not conduct of the accused), then it follows that criminal conduct underlying a conviction is a “specific instance of conduct,” but the conviction itself is not (because a conviction is not conduct of the accused). This reasoning, however, belies the language of the rule. R. 608(b) provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

(Emphasis added). Necessarily, then, prior convictions in general are a species of “specific instances of conduct” and are admissible only as specifically provided in R. 609. Thus, the majority’s definition of “conduct” is seen to be too narrow; R. 608(b) intends that “conduct” be defined broadly.

This conclusion is also supported by prior caselaw. At least one other court of appeals, relying upon the above-emphasized language in R. 608(b), has stated that incarceration for pending criminal charges cannot be used for impeachment purposes. Jolly v. State, 774 S.W.2d 94, 97-98 (Tex.App.—Beaumont 1989, pet. refused). Moreover, we have addressed the very analogous situation of deferred adjudication. Like incarceration on pending charges, deferred adjudication on pending charges shows the witness’ status as a result of a specific instance of conduct, and therefore, should be admissible under the majority’s reasoning. But, this Court has indicated that, absent confrontation clause concerns, a pending deferred adjudication may not be used for impeachment purposes because it is not a final conviction. Jones v. State, 843 S.W.2d 487, 496 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1035 , 113 S.Ct. 1858 , 123 L.Ed.2d 479 (1993). Callins v. State, 780 S.W.2d 176, 196 (Tex.Crim.App.1986) (opinion on court’s own motion for rehearing), cert. denied, 497 U.S. 1011 , 110 S.Ct. 3256 , 111 L.Ed.2d 766 (1990). Similarly, according to the majority’s reasoning, evidence that a witness is a defendant in a civil lawsuit would not itself be a specific instance of conduct so long as the evidence did not concern the details of the civil rights violations. But we have held that evidence that a witness was a defendant in a civil lawsuit alleging the deprivation of civil rights was inadmissible under R. 608(b). Moody v. State, 827 S.W.2d 875, 890-891 (Tex.Crim.App.1992). Finally, interpretation of the civil rule is at odds with the majority’s reasoning. The corresponding civil rule is identical to the criminal rule. *505 See Tex.R.Civ.Ev. 608(b). It has been held that a party may not introduce, for impeachment purposes, a document that outlines an agreement to cooperate with law enforcement authorities in a criminal investigation and an agreement to enter a guilty plea at some future date. Allied Chemical Co. v. DeHaven, 824 S.W.2d 257, 265-266 (Tex. App.—Houston [14th Dist] 1992, no writ).

Hence, cross-examination regarding the pending charge was, at least for purposes of R. 608(b), 1 properly disallowed. This does not end the matter, though, because of the “vulnerable relationship,” to which the majority refers, that exists between the State and a person the State has charged with an offense. The Sixth Amendment does, as the majority says, prevail over R. 608(b) if the two are in conflict. When a witness may be biased against the accused because of a pending criminal charge, the accused should be allowed to cross-examine the witness about that charge in order to allow the jury to determine whether the witness’ testimony was influenced by that fact. But, in other contexts, we have traditionally required that there be some showing that the specific instance of conduct proffered reveals bias or influence. See Lewis v. State, 815 S.W.2d 560, 565 (Tex.Crim.App.1991), cert. denied, 503 U.S. 920 , 112 S.Ct. 1296 , 117 L.Ed.2d 519 (1992) (no showing that revealing details of the offense would show further bias not already shown by revealing pendency of the charges). Callins, 780 S.W.2d at 196 (no showing that deferred adjudication may have influenced the witness’ testimony). Under the majority’s analysis the failure to allow cross-examination regarding a pending charge is always error. 2 I agree that, ordinarily, the mere existence of a pending charge gives rise to an inference that the witness may have been influenced. But in some cases, additional facts in the record may show that such an inference is not warranted. If the latter is the case, and the defendant fails to otherwise make some showing that the pending charge may have influenced the witness, then the trial court does not abuse its discretion in disallowing cross-examination on that subject. 3

In this ease, Russell was charged with aggravated robbery after he gave the police his statement regarding the offense with which appellant was charged. Russell’s earlier statement was entirely consistent with his testimony at appellant’s trial. One cannot infer from the mere existence of the pending charge that it may have influenced Russell’s testimony because any motive for helping the State arose after Russell reported his version of the events. Appellant has not otherwise shown that the pending charge may have influenced Russell’s testimony at trial. 4

When a witness’ testimony corresponds with his statement given prior to the point at which the motive for bias arose, and the defendant does not otherwise show that the pending charge may have influenced the witness’ testimony at trial, I believe that it is not an abuse of discretion to disallow cross-examination regarding an unrelated pending criminal charge that is alleged to be the *506 motive for bias. Such are the facts in this case.

Accordingly, I dissent.

McCORMICK, P.J., joins.

. A close examination of the "long line” of authority cited by the majority reveals that these authorities rely upon constitutional confrontation clause analysis to establish an "exception” to a statutory prohibition against impeachment based upon pending criminal charges. See Carmona v. State, 698 S.W.2d 100, 102-104 (Tex.Crim.App.1985), relying upon Parker v. State, 657 S.W.2d 137, 139 (Tex.Crim.App.1983). Harris v. State, 642 S.W.2d 471, 475-480 (Tex.Crim.App.1982). Randle v. State, 565 S.W.2d 927, 930-931 (Tex.Crim.App.1978). Evans v. State, 519 S.W.2d 868, 871-873 (Tex.Crim.App.1975).

. This Court has never held that a pending criminal charge is always admissible against a witness to show bias, in spite of the majority’s reference in n. 5 to dicta which suggests otherwise. In fact, in at least one instance, we have held that prohibiting questioning concerning a pending criminal charge, under the particular facts of the case, did not violate the Sixth Amendment’s confrontation clause. See Carmona, 698 S.W.2d at 104 (where defendant was otherwise afforded a thorough and effective cross-examination, and the bias and prejudice of the witness was so patently obvious).

. Although the cases cited by the majority (including Alford) do not require a showing that the pending charge influenced the witness, neither do they have this case’s distinguishing facts.

. In fact, the testimony showed that there was no deal between the State and Russell. Though that fact may not be determinative, it is relevant.