No. 13-01-861-CR.
January 30, 2003. Do not publish. Tex.R.App.P. 47.2(b).
On appeal from the 197th District Court of Cameron County, Texas. — —
Before Chief Justice VALDEZ and Justices YAñEZ and CASTILLO.
ERRLINDA CASTILLO, Justice
Appellant, Rita Cruz Hinojosa, was convicted by a jury of the offense of injury to an elderly individual and sentenced by the court to five years imprisonment, suspended for five years. From this conviction, she appeals, raising three issues complaining of the trial court's action in limiting cross-examination of the complaining witness, appellant's mother-in-law. Specifically, appellant asserts that the trial court erred in: 1) "excluding evidence to establish ill-feelings, bias, motive, and animus on the part of the complaining witness which would explain why this witness was lying about whether [appellant] hit her;" 2) violating appellant's sixth amendment right to confrontation by "refusing to allow defense counsel to make proper inquiry about bias and motive on the part of the complaining witness as to why the complaining witness may be lying about appellant's alleged act against her;" and 3) violating rule of evidence 613 "in denying defense counsel's attempt to impeach the complaining witness through inquiry into her prejudices against aliens and knowledge of the immigration consequences of a conviction." We affirm. FACTUAL BACKGROUND Appellant married the complaining witness's son, Wally. Wally did not tell his mother of the marriage for some time and after he did, relations between appellant and her mother-in-law were fractious. The mother-in-law believed that appellant, a Mexican national without legal immigration status, had only married Wally in order to "fix her papers" and change her immigration status and that of her children. The mother-in-law also was afraid of appellant, who had assaulted her and her son during the marriage and who had threatened her on other occasions. Appellant believed that her mother-in-law disapproved of the marriage, interfered with her relationship with Wally, and would say negative things about her to Wally, accusing her of not loving Wally and marrying him solely for immigration and pecuniary benefits. After a few years of marriage, Wally died. Relations between appellant and the complaining witness continued to deteriorate after Wally's death. A few months after the funeral, appellant had her husband's body disinterred and moved to another grave without any notice to her mother-in-law. Shortly thereafter, upon arrival for a visit to her son's grave, the mother-in-law found a man filling in a hole where her son had been buried. The man informed her that the body had been moved the day before and she went to the office to find out where the new grave was located. According to the complaining witness, the office manager did not want to provide her the information because appellant did not want the complaining witness to know where Wally was buried or to visit his grave. Nevertheless, the manager did show the complaining witness the new grave site. About a month later, the complaining witness went to make a payment at the cemetery where her son was buried. Finding the office closed, she began to leave when appellant arrived at the scene, screaming and yelling at her. The complaining witness explained that appellant was angry that the complaining witness had been told where the new grave was located and that she had told others that appellant had had Wally moved and had not informed her. Appellant grabbed the complaining witness by the hair and shoulder, pulled her out of her car, and punched her in her face and mouth, while using foul language, telling the complaining witness that "this [was] for [her] to learn" to "keep her mouth shut," and threatening to disinter Wally's body again and have it cremated. This assault formed the basis for the conviction.
As appellant, the complaining witness, and the complaining witness's son all shared the same surname, we will refer to the son by the name by which he was referred to at trial.
Appellant testified that she had lived in the United States for over eighteen years; that eight months before her husband died, at his request, she had begun processing her "papers" and those of one of her children who was not a U.S. citizen; that her other two children were already U.S. citizens; and that she had not begun the process earlier because of her mother-in-law's accusations about the motives for her marriage.
The office manager denied making these statements.
Appellant admitted meeting the complaining witness at the cemetery and having an argument with her, but denied assaulting her and testified to a different basis for the argument.
THE CROSS-EXAMINATION
All of appellant's complaints arise out of the alleged restriction of her right to effectively cross-examine the complaining witness at trial for purposes of showing bias and prejudice toward persons of appellant's immigration standing, thus hampering appellant's attempts to impeach the witness. Appellant concedes that defense counsel was able to show proof of the witness's hostile attitude toward appellant. However, appellant argues, the trial court foreclosed her efforts to impeach the witness by showing that it was the witness's intent to prevent appellant from acquiring United States citizenship and that such intention was her motivation for falsely claiming that appellant hit her. The State argues that the trial court had the right to reasonably restrict cross-examination and did, in fact, afford appellant "great latitude" to establish the ill-feelings and bad history between appellant and the complaining witness. The State claims that the bias and prejudice that appellant was trying to establish was "patently obvious" to the jury and that further questions regarding the witness's feelings toward persons of appellant's immigration status would have confused the jury as to the issues before it. There are three portions of the record to which appellant refers us in order to demonstrate error by the trial court. All occurred during the cross-examination of the complaining witness. The first question
The first complained-of limitation of cross-examination involved the trial court sustaining an objection as to relevancy regarding the following question: "Mrs. [witness], you never accepted my client as your son's wife, did you?" After the trial court sustained the objection, defense counsel argued that it was necessary to go into the relationship between the two women (appellant and witness). The trial judge stated, "I think you have done that. I think it is very clear. It is clear to me. I am sure it must be clear to the jury. But if you have more questions, go ahead, but let's get going." The second question
The very next question asked of the witness is the second portion of the record to which we are referred by appellant. Immediately after the preceding comments by the judge, defense counsel asked, "Isn't it true, Mrs. [witness], that one of the reasons you did not like my client was because she was what you called a mojada ?" The witness responded "No" before the trial court sustained the State's objection that the question was argumentative. Appellant did not object to the trial court's action and turned to questioning the witness on another, unrelated, topic. The third question
The last portion of the record to which appellant refers us occurs later in the cross-examination. After asking the complaining witness whether she interfered in the lives of appellant and her husband [complainant's son] and whether the complaining witness ever told her son "things about [appellant]," both of which the witness answered in the negative, defense counsel asked, "You never told Wally that [appellant] was a mojada and all she wanted was to marry him to fix her papers?" The State objected, the witness answered, "No, ma'am," and then the trial court sustained the State's objection, stating, "We've been over this once before." Defense counsel agreed and the trial judge stated that he would not "sit here all day long and have the same questions asked of the same witness again. So if you can't think of some new questions, let's just go ahead and terminate your cross-examination if you are through." Defense counsel argued that she had more questions about the interference of the witness in the relationship between Wally and appellant. The judge stated he did not think the matter was relevant and counsel urged that the history between the witness and appellant was relevant to bias and credibility. The judge agreed but observed that such matters had already been gone into and there was no reason to be repetitious. Counsel stated she was not being repetitious and the judge said, "All right." The prosecutor then argued that the question of the witness's interference had nothing to do with what the State had to prove. Defense counsel agreed and the judge then stated that if it had nothing to do with what the State had to prove, he would sustain the objection again. Defense counsel argued that she needed to establish the bad history between the two women and the judge stated that it was well-established and he "had no problem with that." Counsel urged that all the questions went to the credibility of the witness and the judge responded, "Well, go ahead with your questioning." Defense counsel then questioned the witness again about whether she interfered in her son's marriage, during which the following exchange occurred: Q. Isn't it a fact, Mrs. [witness], that you would tell Wally things about your [sic] wife — — A. No, ma'am. Q. — that had to do with the only reason that she married him was because she was an illegal alien? A. No, ma'am. [Prosecutor]: Your Honor — — [Defense Counsel]: Your Honor, I pass the witness. [Prosecutor]: — this is completely irrelevant. [Judge]: I think so. [Defense Counsel]: I have finished with my cross. [Judge]: Thank you very much. LIMITATION OF CROSS-EXAMINATION AND
DENIAL OF SIXTH AMENDMENT RIGHT OF CONFRONTATION In appellant's first issue, she complains that the trial court improperly limited her cross-examination of the complaining witness by not permitting her to question the witness in depth about "prejudices concerning illegal aliens . . . her knowledge about the consequences of a conviction and how a conviction [might] affect the immigration status of an alien," thus preventing her from delving into the witness's motivations for testifying as she did. In her second issue, appellant complains that her sixth amendment right to confrontation under the U.S. Constitution was abridged because she was not allowed to pursue such questioning. We will consider both issues jointly. The Right to Cross-Examine
Generally, "a defendant is entitled to pursue all avenues of cross-examination 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). The confrontation clause of the Sixth Amendment to the U.S. Constitution guarantees a criminal defendant the opportunity for effective cross-examination. Delaware v. Van Arsdall , 475 U.S. 673, 678 (1986). The right to cross-examination is not unlimited and a trial court has wide discretion to limit the scope of cross-examination to "prevent harassment, prejudice, confusion of the issues, harm to the witness, and repetitive or marginally relevant interrogation." Id . at 679. However, a trial court violates a defendant's right to confrontation when the court prohibits the defendant from "engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness" thereby exposing facts "`from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" Id . at 680 (quoting Davis v. Alaska , 415 U.S. 308, 318 (1974)). Error is shown when a reasonable jury might have received a significantly different impression of the witness's credibility if the defendant's counsel had been permitted to pursue the prohibited, but otherwise appropriate, line of questioning. Id . There is a distinction, for appellate review purposes, between a situation in which a defense counsel attempts to elicit certain specific responses from a witness, but is precluded from doing so by the trial judge, and a situation in which a defense counsel is not permitted to question a witness about a certain general subject that might affect the witness's credibility. Virts v. State , 739 S.W.2d 25, 29 (Tex.Crim.App. 1987) (en banc). The respective requirements for preserving error in each situation are distinct. Id. In the former situation, in order to preserve error, defense counsel must make a bill of exception wherein the witness answers the specific questions on the record, or alternatively, counsel may make an offer of proof that includes the questions that would have been asked and the answers that were expected to be received. Tex.R.App.P. 33.2; Tex.R.Evid. 103(a)(2); Virts , 739 S.W.2d at 29 ; Koelher v. State , 679 S.W.2d 6, 9 (Tex.Crim.App. 1984) (en banc) . However, when the complaint is that the trial judge denied a defendant the opportunity to question a witness generally about a matter that might affect the witness's credibility, it is not necessary to show what the cross-examination would have established in order to preserve the complaint; it is enough to establish the general subject matter on which the witness would have been questioned and, if challenged, demonstrate why it should have been admitted into evidence. Virts , 739 S.W.2d at 29 ; Koelher , 679 S.W.2d at 9. The "parameters of cross-examination for the showing of bias [rest] on the sound discretion of the trial judge" who "must balance probative value against prejudicial risks, i.e . undue prejudice, embarrassment, harassment, confusion of the issues, and undue delay." Chambers v. State , 866 S.W.2d 9, 27 (Tex.Crim.App. 1993) (en banc). Accordingly, the trial court's determination is not reversible absent a clear abuse of discretion. Id. If we do determine that a trial court improperly limited the scope of a defendant's cross-examination of a witness, and that the error was preserved, we must then conduct a harm analysis under the three-prong analysis set out in Van Arsdall. Van Arsdall , 475 U.S. at 684. Under this analysis, we: [first] assume that the damaging potential of the cross-examination [was] fully realized. Second, with that assumption in mind, [we] review the error in connection with the following factors: (1) The importance of the witness'[s] testimony in the prosecution's case; (2) Whether the testimony was cumulative; (3) The presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) The extent of cross-examination otherwise permitted; and, (5) The overall strength of the prosecution's case. Finally, in light of the first two prongs, [we] determine if the error was harmless. Shelby v. State , 819 S.W.2d 544, 547 (Tex.Crim.App. 1991) (en banc)(citations omitted). ANALYSIS
The first question As to the first portion of the record detailed above, we find that the only limitation made by the trial court in this exchange was to sustain the objection to the specific question asked. The trial court did not in any way prevent appellant from questioning the witness generally about a subject matter that might affect her credibility and even told counsel to go ahead with any further questions. We find no limitation of appellant's right to cross-examine in this exchange and so no error. Furthermore, any claim that the trial court improperly denied appellant the opportunity to elicit the specific response to the specific question asked was not preserved for appeal since no bill of exception or offer of proof was made. Tex.R.App.P. 33.2; Tex.R.Evid. 103(a)(2); Virts , 739 S.W.2d at 29 ; Koelher 679 S.W.2d at 9. The second question
In this portion of the record also, the trial court in no way restricted appellant from pursuing a particular line of questioning, but rather only prevented appellant from eliciting a specific response to a specific question. We do not find that the trial court denied appellant the opportunity to propound a line of questioning that would have established bias, and so we find no error. Like the first question, any complaint of the denial of the opportunity to elicit the specific response to the specific question was not preserved. Tex.R.App.P. 33.2; Tex.R.Evid. 103(a)(2); Virts , 739 S.W.2d at 29 ; Koelher , 679 S.W.2d at 9. The third question
As in the other two portions of the record to which we have been referred, the trial court did not restrict defense counsel from pursuing a general line of questioning. We find no limitation of appellant's right to generally cross-examine the witness on a particular issue to show bias in this portion of the record and so no error in that regard. The trial court did sustain an objection to a particular question and so appellant was not permitted to elicit the particular response to the question, but in the absence of a bill of exception or offer of proof, that issue is not preserved for appellate review. Tex.R.App.P. 33.2; Tex.R.Evid. 103(a)(2); Virts , 739 S.W.2d at 29 ; Koelher , 679 S.W.2d at 9. We do note that the trial judge clearly felt trial counsel had firmly established the bad relationship between the complaining witness and appellant and did initially suggest that the cross-examination be ended if appellant only planned on continuing to ask questions that the judge considered repetitious. If the trial court had enforced this recommendation by denying further questioning, then there would be a question confronting us regarding the denial of appellant's right to cross-examine the witness. However, the judge capitulated to counsel's arguments and suggested that counsel go ahead with the questioning. Counsel went on to ask, and receive an answer to, essentially the same question that the trial court had sustained an objection to earlier. Thus, any error in sustaining the original objection was rendered harmless. Williams v. State , 937 S.W.2d 479, 489 (Tex.Crim.App. 1996) (holding that where a trial court errs in sustaining an objection to certain evidence, any error is cured when the defense counsel later successfully elicits testimony concerning the same subject). The "motivation" question
Appellant makes a general assertion that the trial court foreclosed "all inquiry into the mother-in-law's prejudice against aliens, and . . . any further inquiry about her knowledge of the consequences of a conviction on the immigration status of an alien." We have failed to discover any attempt to question the complaining witness about a prejudice against "aliens" generally or about her knowledge of the immigration consequences of a conviction. Appellant refers us only to the portions of the record outlined previously, which do not reveal any foreclosure of appellant's ability to question the witness on these subjects or any subject to reveal bias and so do not support her complaint. Appellant also argues that the trial court's actions denied her the opportunity to assert the theory that the complaining witness was motivated to lie about being hit by appellant because it was the witness's intent to deny appellant the chance to become a citizen. However, in addition to the fact that the trial court did not limit the scope of appellant's cross-examination in the portions of the record cited to us, we also note that appellant never asked or even attempted to ask the witness about such a motivation. The sections brought to our attention evince an attempt to establish that the witness: (1) disliked appellant, at least in part because she thought appellant married Wally to better her immigration status; (2) did not "accept" appellant as Wally's wife and interfered with the marriage between appellant and Wally; and (3) had a bad relationship with appellant. There is no questioning, or attempted questioning of the complaining witness about an intent to hurt appellant's future immigration status or even what she knew about possible consequences to appellant's immigration status which would be brought about by a criminal conviction. Nor did appellant make a bill of exception, offer of proof, or at any time advise the court during the course of the cross-examination that she was attempting to establish that the witness's testimony was motivated by her intent to effect a denial of appellant's citizenship opportunities. Defense counsel only advised the trial court that: (1) the case involved "a history of bad feelings and biases" and so she needed to establish "the relationship between these two ladies;" and (2) that she was entitled to explore further whether the witness interfered in the marriage once the witness had denied doing so. Both areas were amply explored at trial. The trial court did not restrict appellant from pursuing this theory. Additionally, we agree with the State that appellant was, in fact, able to put forth her theory for the motivation behind the complaining witness's testimony. Early in appellant's cross-examination of the complaining witness, the witness admitted telling the police that the only reason appellant had married her son was to "fix her papers," that is, change the immigration status and that of her children. The witness stated those statements were not merely her own subjective belief but were based on statements that appellant had made to her. During appellant's direct examination, appellant stated that she believed that her mother-in-law was bringing false accusations against her because that was the only way that appellant could be denied residency in the United States. Appellant also testified she could work legally at the moment due to a temporary permit but that her mother-in-law knew that she [the mother-in-law] could "take that away" if appellant was convicted. We overrule appellant's first and second issues. VIOLATION OF RULE 613(b)
In her final issue, appellant complains that the trial court violated rule of evidence 613(b) because the trial court did not permit further inquiry into the witness's attitude toward "illegal aliens and the immigration status of [a]ppellant" once the witness had "denied these prejudices." Tex.R.Evid. 613(b). Rule 613(b) prohibits further cross-examination or proof of external evidence in an attempt to impeach a witness by proof of circumstances or statements demonstrating a particular bias or interest until after a witness has been informed of the circumstances supporting a claim of bias or interest and has been given an opportunity to explain or deny those circumstances. Id.; Willingham v. State , 897 S.W.2d 351, 358 (Tex.Crim.App. 1995); Williams v. State , 976 S.W.2d 330, 331-32 (Tex.App.-Corpus Christi 1998, no pet.). In support of this issue, appellant refers us again to the portions of the record cited previously. However, the propounded questions in those sections did not ask the witness about "her attitude towards illegal aliens." Two questions alluded to the witness's feelings about the immigration status of appellant: (1) the query, "Isn't it true, Mrs. [witness], that one of the reasons you did not like my client was because she was what you called a mojada ?"; and (2) "You never told Wally that [appellant] was a mojada and all she wanted was to marry him to fix her papers?" Assuming, without deciding, that appellant laid the proper foundation for the introduction of proof of circumstances to impeach the witness as required by rule 613(b), the trial court never limited appellant from doing so, nor did it limit further cross-examination or the introduction of external evidence to prove bias. After the first inquiry, appellant made no effort to ask any other questions along these lines, but turned to questioning the witness on another topic. After the second inquiry was answered, appellant told the court that she had concluded her cross-examination. Moreover, appellant did not preserve any rule 613(b) complaint for appeal. Appellant never informed the trial court that she was relying on the provisions of rule 613(b) nor did she argue that she had met its requirements and so wished to introduce further evidence in impeachment. See Tex.R.App.P. 33.1(a); Dixon v. State , 2 S.W.3d 263, 273 (Tex.Crim.App. 1999) (op. on reh'g)(finding that an objection under rule 608(b) did not preserve a complaint under Rule 612(b)); Johnson v. State , 963 S.W.2d 140, 142 (Tex.App.-Texarkana 1998, pet. ref'd) (holding that party offering evidence has burden to establish admissibility and where theory of admissibility is not presented to trial court, argument is not preserved for appellate review). While we may uphold a trial court's ruling on any legal theory applicable to the case, we may not normally reverse a trial court's ruling on a theory or basis which might have been applicable to the case, but was not raised before the trial court. Martinez v. State , No. 344-02, 2002 Tex.Crim. App. LEXIS 233, at *13 (Tex.Crim.App., December 11, 2002). Additionally, appellant was required to include a bill of exception as to the specific evidence that she complains was excluded in violation of rule 613(b) in order for any error to be reviewable on appeal. See Penwell v. Barrett , 724 S.W.2d 902, 907 (Tex.App.-San Antonio 1987, no writ)(dealing with former Texas Rule of Civil Evidence 612, now rule 613). Appellant took none of these actions. Thus, even if there had been any error, it would not have been preserved for our review. We overrule appellant's third issue. CONCLUSION
Having overruled all of appellant's issues, we affirm the judgment of conviction.