By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
No confrontation right violation in refusing to permit criminal defendant to cross-examine regarding witness’ burglary adjudication (00-3-16)
On July 11, 2000, the Dallas Court of Appeals
held that a criminal defendant's right of confrontation was not violated by the
trial court's ruling that the jury would be told that a State's witness had
legal trouble as a juvenile rather than that she had been adjudicated for
burglary.
00-3-16. Nall v. State, UNPUBLISHED, No. 05-98-01224-CR, 2000 WL 948080, 2000
Tex.App.Lexis ___ (Tex.App.—Dallas 7/11/00)[Texas Juvenile Law 238 (4th
Edition 1996).
Facts: Appellant Stacy Charles Nall was charged by indictment with the offense
of aggravated sexual assault. Nall pleaded not guilty. A jury found Nall guilty
and assessed punishment at thirty-five years in prison. In two points of error,
Nall complains of the prosecutor's final argument and of limits placed on Nall's
cross-examination of the complainant.
Held: Affirmed.
Opinion Text: In his second point of error, Nall contends the trial court
improperly limited his cross-examination of the complainant, which precluded
establishing important evidence to his defensive theory. The complainant
testified that he frequently visited Nall's home, and that on one visit Nall
took him into a bedroom and performed oral and anal sex on him. Nall
established, however, that this allegation first arose when the complainant's
mother confronted her son about sneaking out of the house. In this
confrontation, she threatened to send the complainant to the Texas Youth Council
(TYC) if he was doing something wrong. Nall's theory at trial was that the
complainant invented the story of the sexual assault to derail any notion of
being sent to the TYC. Pursuant to that theory, Nall wanted to question the
complainant about his juvenile history to establish for the jury that the
complainant had been adjudicated guilty of burglary and placed on juvenile
probation in 1994. At the time of the alleged sexual assault and at the time of
Nall's trial, the complainant was no longer on juvenile probation. In response
to Nall's request, and over his objection, the trial court limited the
evidentiary presentation of the victim's juvenile record. The trial court
allowed Nall to inform the jury only that the complainant had been threatened by
his mother with incarceration in the TYC and that the victim's fear of the TYC
had something to do with an incident in 1994 when the victim had gotten into
some sort of "legal trouble."
The trial court precluded Nall from informing the jury of the specific nature of
the legal trouble. Nall asserts that his inability to inform the jury about the
burglary adjudication and probation prevented him from adequately demonstrating
that the complainant had a bias against him, or at least a bias in favor of the
State, that motivated him to testify falsely about the alleged sexual assault.
In Nall's view, the allowed term "legal trouble" did not carry the
import of an adjudication for first degree felony burglary. In his brief, Nall
asserts that "legal trouble" could mean "anything, even down to a
traffic ticket" and that a felony burglary conviction "would provide
far more of a motive for the complainant to testify falsely than other varieties
of 'legal trouble.' " Thus, Nall argues that the jury did not receive a
full understanding of the complainant's potential bias without knowing all the
circumstances.
Nall's legal argument is that the trial court's prohibition amounted to a denial
of his right to confrontation of witnesses. See Davis v. Alaska, 415 U.S. 308,
315-16 (1974). Nall correctly asserts that the Confrontation Clause of the
United States Constitution guarantees a defendant an adequate opportunity to
cross-examine witnesses. Id.; Carroll v. State, 916 S.W.2d 494, 497-98 (Tex.Crim.App.
1996). In order to effectuate this guarantee, courts attach a broad scope to
permissible cross-examination, and are often disposed to characterize
cross-examination as permissible whenever the questions asked are reasonably
calculated to expose a motive, bias or interest for the examined witness to
testify in a certain way or for a certain party. Carroll, 916 S.W.2d at 497.
However, there are appropriate limitations to the scope of even seemingly proper
cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986);
Carroll, 916 S.W.2d at 498.
Nall argues that Davis controls resolution of this appeal. In Davis, the defense
sought to impeach the chief prosecution witness with the record of his juvenile
conviction showing that the witness was on probation at the time of the trial.
Davis, 415 U.S. at 310-11. Due to an Alaskan statutory prohibition against
impeachment with juvenile records, the requested line of impeachment questioning
was disallowed by the trial court. See id. The Supreme Court reversed this
ruling, noting that the exposure of a witness' motivation to testifying by
cross-examination that tends to reveal biases, prejudices, ill feeling or
ulterior motives that might affect the witness's testimony is a proper and
important function of the constitutionally protected right of cross-examination.
Id. at 316-17. This was especially true, opined the Supreme Court, where the
witness was on probation under the jurisdiction of the very prosecution office
that was sponsoring him on the witness stand, because he might fear probation
revocation. See id. at 311 & 318.
Texas has a statutory prohibition on disclosure of juvenile records--similar to
that addressed in Davis--which prohibits the use of juvenile records in later
court proceedings, including criminal trials. See Tex. Fam.Code Ann. Sec.
51.13(b) (Vernon 1986). This statute prohibits the use of a record of an
adjudication of delinquent conduct in future proceedings except in future
juvenile proceedings against the juvenile or as punishment evidence against the
juvenile in adult court. Id; Hall v. State, 745 S.W.2d 579, 583 (Tex.App.--Fort
Worth 1988, pet. ref'd). In our case, the trial court relied upon this statute
in denying the requested impeachment. Citing Davis, Nall contends that the
statutory prohibition against questioning a witness about the witness's juvenile
record must give way to the constitutional right of confrontation of witnesses.
The apparent conflict between the statutory prohibition embodied in the Texas
Family Code and the constitutional right promulgated in Davis has been analyzed
by both our Court of Criminal Appeals and one of our sister courts. See Warren
v. State, 514 S.W.2d 458, 465 (Tex.Crim.App. 1974), overruled on other grounds
by Reed v. State, 744 S.W.2d 112 (Tex.Crim.App. 1988); Gilmore v. State, 871
S.W.2d 848, 850-51 (Tex.App.--Houston [14th Dist.] 1994, no pet.). In Warren,
the Court of Criminal Appeals noted that Davis only applied to impeachment that
"sought to show the witness' bias or prejudice because he was still on
probation from the prior offense and possibly subject to pressure from police
and prosecutors." See Warren, 514 S.W.2d at 465. The court in Warren
expressly noted there was no showing that the witness in question was on
probation; therefore, the impeachment was not for the purpose of showing bias or
prejudice, but was rather in the nature of general impeachment with a prior
conviction. Id. The Court of Criminal Appeals held that Davis did not apply in
that circumstance. Id.
Similarly, the Fourteenth Court of Appeals noted that where Davis could be
factually distinguished, the statutory prohibition in the Texas Family Code
might not run afoul of the Confrontation Clause. See Gilmore, 871 S.W.2d at 851.
In Gilmore, as in our case, the witness sought to be impeached was not on
probation and had discharged the sentence he received at his adjudication. See
id. Because the fear of probation revocation was absent, our sister court found
that Warren, and not Davis, controlled. See id.
Recently, the Court of Criminal Appeals added credence to the notion that Davis
is limited to impeachment that seeks to show bias or prejudice because the
witness is on probation from the offense sought to be introduced and possibly
subject to pressure from police and prosecutors. See Carpenter v. State, 979
S.W.2d 633, 634-35 (Tex.Crim.App.1998). In Carpenter, the defendant sought to
impeach a State's witness with evidence of a pending federal conspiracy charge,
under the theory that the pending charge might make the witness inclined to
testify favorably for the State to obtain some benefit or avoid some detriment
in the federal case. Id. at 635. The trial court, acting upon the objection of
the State, did not allow evidence of the pending federal charge before the jury.
See id. The Court of Criminal Appeals affirmed this ruling, reasoning that for
an impeachment by evidence of pending charges to be admissible, a defendant must
establish some causal connection or logical relationship between the pending
charges and the witness' potential bias or prejudice for the State, or testimony
at trial. Id. at 634. The defendant in Carpenter simply had not shown why
prosecution by the federal government for conspiracy would tend to show that the
witness' testimony in the unrelated state prosecution might be biased. Id. at
635. There was speculation offered that it was possible that the witness
believed his testimony in this case would be of some benefit in the federal
prosecution, but there was no evidence that this was what the witness thought or
that the testimony might actually be of some benefit to him in the federal
prosecution. Id. The Court concluded that the defendant simply had not provided
any causal connection or logical relationship between the pending federal
charges and the witness' testimony at trial. Id.
As in Warren and Gilmore, the complainant-witness in our case was not on
probation at the time he testified. Nall seeks to distinguish these cases
because, he maintains, the burglary adjudication he sought to impeach with in
this case was for a different impeachment purpose than the impeachment evidence
sought to be used in Warren and Gilmore. While we see this as a distinction
without a difference, it is unnecessary for us to delve deeply into the merits
of Nall's contention because even if it had merit, the burglary adjudication
would still not be admissible in light of the holding in Carpenter.
Nall was allowed to get his theory of impeachment before the jury. He was
allowed to establish that the complainant had been threatened by his mother with
being sent to the TYC if he was sneaking out of the house for errant purposes.
Nall was allowed to adduce that the complainant knew about the TYC and,
therefore, feared going there because of some "legal trouble" he had
gotten into years earlier. The lone fact Nall was precluded from bringing before
the jury--that the "legal trouble" was a burglary adjudication--has
not been shown to have, in our opinion, any more casual connection or logical
relationship to a motive to lie than the evidence Nall was allowed to proffer.
Nall argues that the burglary adjudication would tell the jury why the
complainant would be so afraid of the TYC; but, as in Carpenter, this is mere
speculation--and not very credible speculation at that. We are unpersuaded that
knowing that the victim feared the TYC because of a burglary adjudication has
more probative force than fear from past "legal trouble." The trial
court preserved Nall's constitutional right to confront witnesses by allowing
cross-examination to the extent necessary to urge to the jury that the
complainant had reason to lie because of a bias or ulterior motive. See Davis,
415 U.S. at 316-17. In our view, introduction of the addition evidence of the
burglary adjudication would have added nothing of note, but would have run afoul
of the holdings in Warren, Gilmore and Carpenter. We overrule point of error
number two.
The judgement of the trial court is affirmed.