By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law

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Not error to refuse to permit defendant to question witness about juvenile record [Esparza v. State] (03-3-05).

On June 4, 2003, the Court of Criminal Appeals held that it was not error for the trial court to deny permission to the defendant to question a state's witness about his juvenile record in view of the witness' extensive adult record admitted into evidence.

03-3-05. Esparza v. State, ____ S.W.3d ____, No. 74096, 2003 WL 21282765, 2003 Tex.App.Lexis ___ (Tex.Crim.App. 6/4/03) Texas Juvenile Law (5th Ed. 2000).

Facts: On March 27, 2001, appellant was convicted of capital murder for raping and strangling a seven year old girl, Alyssa Vasquez. Tex. Penal Code Ann. § 19.03(a)(2). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071, § 2(g). Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises twenty four points of error.

Held: Affirmed.

Opinion Text: In his ninth and tenth points of error, appellant contends that he was denied his right to confront the witnesses against him, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 10 of the Texas Constitution. Appellant specifically argues that he was prevented from effectively cross examining Ernest Rodriguez when the trial court refused to allow him to question Rodriguez about his juvenile record.

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. Davis v. Alaska, 415 U.S. 308, 315 (1974). Confrontation means more than being allowed to confront the witness physically; it also encompasses the right of cross examination. Id. Cross examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Id. at 316. The exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross examination. Id.

State's witness Ernest Rodriguez testified on direct examination that he was housed at the Bexar County Jail at the same time as appellant. Rodriguez was in jail on a pending charge for possession of cocaine and a parole violation. Rodriguez testified that appellant confessed to him that he committed the instant crime while they were both in jail. After appellant admitted his involvement, Rodriguez told his wife to contact the District Attorney's Office with this information. Rodriguez gave two statements detailing what appellant had told him. He gave one statement to a police detective on July 23, 1999, and a second statement to an investigator from the District Attorney's Office on November 1, 1999.

Rodriguez further testified that he had a deal with the State whereby his possession charge would be dropped in exchange for his testimony. He testified that he did not have a deal with regard to his parole situation, but stated: "After the possession charge was dropped, parole reinstated my parole, and I was released." He stated that he would have testified even if his pending charges had not been dropped.

Prior to cross examination, defense counsel, outside the jury's presence, requested that the trial court allow him to question Rodriguez about his juvenile record. Defense counsel "agree[d] with the State that normally juvenile records are not admissible for purposes of impeachment," but argued:

The purpose is to show the experience, the involvement of this individual, to show his motive; not his credibility, but his motive and his intent in talking with the District Attorney's office and talking with law enforcement; and that he has been so involved in the criminal justice system since he was a small child, that he is fully aware of the benefit.

The trial court denied defense counsel's request. See Tex.R. Evid. 609(d). Defense counsel made a bill of exception and questioned Rodriguez about his juvenile record. Rodriguez stated that he never provided information to law enforcement regarding other people's criminal offenses as a juvenile. The first time he provided such information to law enforcement was in 1990 when he was twenty one or twenty two years old. In that instance, he was in jail for auto theft and his case was dismissed as a result of providing information.

Defense counsel questioned Rodriguez before the jury regarding his extensive criminal record as an adult and his history of making deals in exchange for providing information to law enforcement. Rodriguez testified that he had two burglary charges, one of which resulted in a conviction, three theft charges, one auto theft charge, three drug arrests, and one arrest for obstructing the police. He was convicted of shoplifting in 1988 and was placed on probation and required to pay a fine. He was convicted of delivery of a controlled substance in 1989 and received a ten year sentence. He violated his parole and was jailed on the auto theft charge in 1990, but the charge was dropped after he provided information to police regarding another crime. His parole was revoked at that time, but he served only ninety days instead of seven years.

Rodriguez further testified that, while out on parole in 1991, he was convicted of burglary of a habitation and received a sixteen year sentence. He was released on parole in 1993, was returned to TDCJ on a parole violation, was released on parole again in 1998, and was charged with possession of cocaine and placed in Bexar County Jail in 1999, at which point he was incarcerated on the same floor as appellant. Rodriguez testified that he knew he could get a life sentence if he was convicted on his pending possession of cocaine charge because he had two previous felony convictions. He knew that he had a prior case dismissed in exchange for providing information to the police in the past. He was also aware that appellant was charged with capital murder and was incarcerated on the same floor in the county jail.

Appellant essentially argues that he could have been even more successful in exposing Rodriguez's motivation in testifying if he had been able to question him about his juvenile record; however, "the Confrontation Clause only guarantees an opportunity for effective cross examination, not cross examination that is effective in whatever way, and to whatever extent, the defense might wish." Thomas v. State, 837 S.W.2d 106, 112 (Tex.Crim.App.1992)(citing Delaware v. Fensterer, 474 U.S. 15, 20 (1985)(emphasis in original)). It is evident from the record that appellant was able to impeach Rodriguez despite being unable to question him about his juvenile record. Appellant has not shown that he was denied his right to confront witnesses against him under the federal or state constitutions. Points of error nine and ten are overruled.

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