Opinion
NUMBER 13-17-00368-CR
05-03-2018
DREW EDWARD DOWLEARN, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa
Memorandum Opinion by Justice Contreras
Appellant Drew Edward Dowlearn was convicted of violating a protective order two or more times within a twelve-month period, a third-degree felony. See TEX. PENAL CODE ANN. §§ 25.07, 25.072(a) (West, Westlaw through 2017 1 st C.S.). By one issue, appellant argues that the trial court violated his right to fully confront an adverse witness during the punishment phase of trial. We affirm.
I. BACKGROUND
Appellant was indicted for the offense of violating a protective order two or more times within a twelve-month period. See id. §§ 25.07, 25.072(a). He pleaded not guilty and waived his right to a jury trial.
On June 15, 2017, the case was tried to the bench. Evidence offered at the guilt-and-innocence phase of trial established that complainant, appellant's former wife, obtained a restraining order against him, and that appellant committed two instances of family violence against complainant while the restraining order was in effect. Law enforcement officers and complainant testified as to the events surrounding each violation. The trial court heard all the evidence and arguments of counsel and found appellant guilty of the charged offense.
At the punishment phase, appellant's defense counsel sought to cross-examine complainant over her communication via text message with appellant while the restraining order was in effect. As defense counsel questioned complainant, the following exchange occurred:
Defense Counsel: Ma'am, in December of 2016, this incident that you testified earlier, something about a ring, you text[ed] Mr. Dowlearn; is that correct?
Complainant: He texted me multiple times. That's one of his tactics, where he will text you—
Defense Counsel: Well, ma'am, excuse me. Answer my question. Did you text him in December—did you contact—did you make contact with him?
Complainant: He made contact with me; and I replied back to him, yes.
Defense Counsel: So your answer is, yes, you did make contact with him?Defense counsel then continued questioning complainant over her communication via text message with appellant while the restraining order was in effect.
Complainant: Yes.
Defense Counsel: How many times did you text him back in December?
Complainant: I don't know. He texted multiple times, and I would reply back.
Defense Counsel: Well, okay. Multiple times. Ten times?
Complainant: I don't know.
Defense Counsel: Maybe [fifteen] times?
Complainant: He—I don't know.
The State: Objection, argumentative.
The Court: She doesn't know how many times.
Defense Counsel: Did you ever discuss with the law enforcement or the District Attorney's office these texts that occurred in December of 2016?
Complainant: I did. I showed them multiple messages.
Defense Counsel: So the answer is, yes, you did tell them that he had been texting you and you had been texting him?
Complainant: Right.
The trial court heard arguments from counsel and assessed appellant's punishment at ten years' imprisonment in the Texas Department of Criminal Justice-Institutional Division. Appellant did not make an offer of proof or file a bill of exception. This appeal followed.
II. DISCUSSION
We review a trial court's decision to limit cross-examination under an abuse-of-discretion standard. See Machett v. State, 941 S.W.2d 922, 940 (Tex. Crim. App. 1996). An abuse of discretion occurs when the trial court acts without reference to any guiding rules and principles. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (en banc) (op. on reh'g).
The Confrontation Clause of the United States Constitution guarantees a defendant the right to cross-examine witnesses. See U.S. CONST. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986); Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). A defendant may cross-examine a witness on any subject "reasonably calculated to expose a motive, bias[,] or interest for the witness to testify." Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). However, this right is not without limits. Saglimbeni v. State, 100 S.W.3d 429, 435 (Tex. App.—San Antonio 2002, pet. ref'd) ("Although the rights to confrontation and cross-examination are constitutionally protected, these rights are not absolute."). The trial court has considerable discretion in determining how and when bias may be proved and what collateral evidence is material for that purpose. Van Arsdall, 475 U.S. at 679; Ho v. State, 171 S.W.3d 295, 304 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd). To this end, the trial court has the discretion to limit the scope of cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. Van Arsdall, 475 U.S. at 679. This limitation does not violate the defendant's right to confront a witness so long as: (1) the possible bias and motive of the State's witness is clear to the trier of fact, and (2) the accused has otherwise been afforded an opportunity for a thorough and effective cross-examination. Ho, 171 S.W.3d at 304.
Here, appellant argues that he was not allowed to fully cross-examine complainant about her communication with him via text messages while the restraining order was in effect. Specifically, appellant wanted to question complainant about the number of times she texted him during the month of December. In response to appellant's questions, complainant admitted to texting him while the protective order was in effect, albeit in response to text messages he sent. However, she also testified she did not remember the specific number of times she had sent appellant a text message. We note that appellant's line of questioning made it clear to the trier of fact that he sought to expose bias and question the credibility of complainant by showing that she had communicated with him while the restraining order was in effect. See Ho, 171 S.W.3d at 304.
The record also shows that the trial court in no way restricted appellant from pursuing this particular line of questioning, but rather prevented appellant from harassing complainant by repeatedly asking a question to which she did not know the answer. Here, the question the State objected to was clearly repetitive since appellant had already asked complainant: (1) how many times she had texted appellant during the month of December, and (2) whether she had texted him "ten times" during that period. Thus, when appellant immediately after asked complainant if she had texted appellant "maybe fifteen times", appellant was essentially asking the same question he had already asked twice, and the question was not going to introduce any new information to the trial court. Furthermore, the record shows that appellant was allowed to continue his cross-examination of complainant regarding her communication with him via text message. Therefore, appellant was afforded an opportunity for a thorough and effective cross-examination. See Ho, 171 S.W.3d at 304.
We conclude that the trial court did not abuse its discretion or violate appellant's right to confront a witness by preventing appellant from repeatedly asking complainant the same question. See TEX. R. EVID. 611(a); Van Arsdall, 475 U.S. at 679; Ho, 171 S.W.3d at 304. The possible bias and motive of the State's witness was clear to the trier of fact, and appellant was otherwise afforded an opportunity for a thorough and effective cross-examination. Ho, 171 S.W.3d at 304. Finally, any claim that the trial court improperly denied appellant an opportunity to elicit a specific response from complainant to the specific question asked was not preserved for our review since no bill of exception or offer of proof was made. See TEX. R. APP. P. 33.2; TEX. R. EVID. 103(a)(2); Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987) (en banc) (noting that the defendant must submit a bill of exception or offer of proof to preserve error concerning a limitation on the scope of cross-examination when the defendant seeks to elicit a certain specific response from the witness); see also Holmes v. State, 323 S.W.3d 163, 170 (Tex. Crim. App. 2009) (noting that to preserve error when there is a limitation on the scope of cross-examination in regard to a matter that might affect the witness's credibility, the defendant needs to establish the general subject matter on which the witness would have been questioned).
We overrule appellant's sole issue.
III. CONCLUSION
We affirm the judgment of the trial court.
DORI CONTRERAS
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 3rd day of May, 2018.