# Wilford v. State > Court of Criminal Appeals of Texas · November 12, 1987 · 739 S.W.2d 854 URL: https://www.frixlaw.com/law-library/cases/9779045 ## Case - **Full name:** Barbara L. WILFORD, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** November 12, 1987 - **Citations:** 739 S.W.2d 854; 1987 Tex. Crim. App. LEXIS 699 - **Precedential status:** Published - **Opinion:** Dissent by Teague - **Judges:** Onion, Teague, Duncan, Miller, Campbell, Clinton, State - **Cited by:** 12 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/9779045 ## How later opinions describe it (automated extraction) - noting exceptions (exited utterance, present sense impression, that subsequently elicited testimony rendered error and then-existing mental, emotional or physical “harmless”). We overrule Issues Two, Three, and Four. condition - noting that subsequently elicited testimony rendered error “harmless” ## Opinion text TEAGUE, Judge, dissenting. The majority opinion holds appellant’s grounds of error numbered two, three, and four are not subject to appellate review because “appellant has not shown what answers she expected to elicit from T.C. Jones” [, a State’s witness], (Page 861), and further finds that appellant “did not perfect a bill of exceptions or make offer of proof in accordance with Article 40.09, § 6(d)(1), V.A.C.C.P.” (Page 861). Appellant asserts in her three grounds of error that the trial court “jeopardized the integrity of the fact finding process by denying appellant the right to develop on cross-examination of T.C. Jones” information concerning the following subjects: (1) “his involvement with other women which might have supported others with a motive to kill T.C. Jone’s wife ..(2) “whether he had an ‘open marriage’ [with his now deceased wife] in that his involvement with another woman would be acceptable to the deceased ..and (3) sought through the cross-examination of T.C. Jones whether there was “any involvement with other men by [Jones’s] wife (the deceased) which might have suggested other people with a strong motive for her death ...” As the excerpts set out in the majority opinion reflect, appellant wanted to, but could not because of the trial judge’s sustaining the prosecutor’s objections, establish the fact that Jones was a philanderer, as well as the fact that Jones’s wife might not have objected to Jones being a philanderer, as well as the fact that Jones’s wife was also a philanderer, and their philandering might have caused a jilted lover to have just as strong a motive as appellant had to kill Jones’s wife. The excerpts make it clear to me that the trial judge was not going to let appellant question Jones about these subjects, either in or outside of the presence of the jury. The majority declines to review the above three grounds of error on the basis that because appellant did not make an “offer of proof” there was nothing to review. I disagree. Because I find that appellant has more than adequately preserved his complaints for appellate review, I must disagree with the majority opinion that appellant’s claims are not properly before this Court for review. In disagreeing with the majority opinion, however, this does not mean that I also find that her contentions have sufficient merit that would warrant this Court reversing her conviction. I simply find at this time that her contentions are properly before this Court for review purposes, and they should be reviewed by this Court. It is to the failure of this Court to review the above grounds that causes me to file this dissenting opinion. The majority opinion obviously fails to draw the distinction between the situation where the accused desires to elicit certain, specific responses from a State’s witness on cross-examination, and is precluded from doing so by the trial court, and the situation where the accused wishes to cross-examine a State’s witness about a certain general subject that might show some relevant fact that would bring into question the credibility of the witnesses’s testimony. In the former, it is incumbent upon the accused to establish on the record, either through the witness himself or herself, answers to specific questions directed at the witness, or through an offer of proof *867 of the questions and the answers. However, that is not true when it comes to the trial judge precluding the accused from questioning the witness about certain general subjects. In that instance, the rule is more liberal; it is only necessary for the accused to show that his cross-examination would have affirmatively established the fact sought to be proved; the accused must merely establish what subject matter he desired to examine the witness about during the cross-examination. See the discussion on these subjects that is set out in Koehler v. State, 679 S.W.2d 6 (Tex.Cr. App.1984); Virts v. State, 739 S.W.2d 25 (Tex.Cr.App. No. 1169-84, October 21, 1987); and Hurd v. State, 725 S.W.2d 249 (Tex.Cr.App.1987). In this instance, I find from the record that appellant wanted to question the witness Jones about the general subject of philandering, as might be applicable to both Jones and his wife, and given the record before us he properly perfected his error for appellate review purposes. Appellant argues that the actions of the trial judge prevented her from establishing through Jones the fact that others might have had the same motive as she had that might have caused them to be responsible for the death of Jones’s wife, for which appellant was convicted of causing. The State argues that appellant’s sought after cross-examination was not permissible as it could not have affected Jones’s credibility as a witness. Given the state of the record before us, these are the issues this Court should be addressing, and not whether the error was perfected for appellate review. Because the majority does not address appellant’s grounds of error, I respectfully dissent. Given the author’s penchant for religiously subscribing to and following what he said for the Court in Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), and Al-laben ⅛ progeny, as to what is admissible at the punishment stage of non-capital case, which this case concerns, I am at a loss to understand how he can dispose of appellant’s grounds of error numbered 10 through 13, inclusive, in the manner he does. I am terribly concerned about the way that the majority opinion disposes of appellant’s complaint that the trial judge did not err in refusing to allow the jury to hear testimony as to why appellant’s father and mother were not present at the trial. This Court has decided many, many cases, too many to cite, where it approved a prosecuting attorney making a big deal to the jury about the absence of family members of the defendant from the punishment phase of the trial. Here, I find that appellant was attempting to cut the prosecutor off from arguing, to the effect, that the absence of appellant’s father and mother from the trial shows that not even they cared whether the jury voted to send her to the penitentiary. In Bodde v. State, 568 S.W.2d 344, 351-352 (Tex.Cr.App.1978), this Court approved a prosecuting attorney testifying before the jury concerning why a child witness was unable to testify at the defendant’s trial, and held: “The court acted properly in allowing the State to explain its failure to produce the child as a witness. (Citations omitted.).” Doesn’t a good rule of law work both for the State and the defendant? For the above and foregoing reasons, I am constrained to dissent to the way that the majority opinion overrules appellant’s above grounds of error. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9779045. Public record. Not legal advice.