Opinion
No. 05-04-01634-CR
Opinion Filed August 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from County Criminal Court No. 2, Dallas County, Texas, Trial Court Cause No. MB03-21747-B. Affirm.
Before Justices O'NEILL, RICHTER and FRANCIS.
MEMORANDUM OPINION
Appellant Derrick Shunar Ray appeals his conviction for driving while intoxicated (DWI). After the jury found appellant guilty, the trial court assessed punishment at 150 days' confinement, probated for twenty-four months, and assessed a $900 fine. In three points of error, appellant contends the trial court erred in excluding evidence of a subsequent bad act by a police officer-witness, disallowing cross examination of that witness on the subsequent bad act, and that appellant was harmed thereby. For the following reasons, we affirm the trial court's judgment. Appellant was arrested for DWI by Dallas Sheriff's Deputy William Bragg. Officer Bragg testified he stopped appellant because he observed appellant traveling at least 85 miles per hour on Interstate Highway 20 in Dallas. Bragg testified that appellant did not immediately pull over when Bragg turned on his police lights and siren, and Bragg followed appellant for at least two miles at speeds in excess of 90 miles per hour. Appellant finally pulled over at the split off of highways I-35 and I-20 in a triangle median. Three back-up police vehicles arrived at the scene shortly after Bragg. Apparently only one of the four vehicles had an in-car video camera, and that camera did not record any of the events of appellant's arrest. Officer Bragg and another officer attempted to perform a "Terry" pat down of appellant; however, Bragg testified that appellant continually turned and talked to Bragg whenever Bragg reached appellant's right leg. Bragg testified that he attempted to handcuff appellant, who resisted. Bragg and two other officers then took appellant to the ground and sprayed him with pepper spray. After being sprayed, Appellant complied with the officers but refused to perform standard field sobriety tests. Appellant was then arrested. At trial, the State offered into evidence a videotape that was taken of appellant's subsequent actions in the intoxilyzer room at the police station. Appellant did not object and the tape was played for the jury. Officer Bragg further testified that, in his opinion, appellant was intoxicated. No other police officer testified with respect to whether appellant was intoxicated. Appellant contends that his DWI arrest by Officer Bragg was pretextual to cover up the excessive force Bragg used on appellant. The record shows that Bragg had been indicted for use of excessive force on another suspect subsequent to appellant's arrest; however, that indictment was dismissed after the other suspect withdrew his allegation in a letter of non-prosecution. Appellant wanted to introduce the indictment as evidence of Bragg's pattern of violence toward prisoners, providing him with a motive for making a pretextual arrest of appellant. The trial court denied both introduction of the subsequent indictment and questioning of Bragg about the incident. Appellant's counsel offered a bill of exception outside the presence of the jury at which he questioned Bragg about the subsequent incident. Bragg testified that, in a separate incident subsequent to appellant's arrest, he had sprayed a suspect with pepper spray after the suspect had struck another officer in the eye. When the pepper spray had no effect on the suspect, Bragg struck the suspect first on the hands, then on the shins, with his baton. The suspect filed charges against Bragg, claiming he had been struck while handcuffed, but he later withdrew the allegations, saying that he had not, in fact, been handcuffed. The indictment was dropped. After appellant's counsel questioned Bragg about the incident, the trial court stood by its initial ruling excluding any evidence of the incident and disallowing questioning of Bragg about it in front of the jury. In his three points of error, appellant contends the trial court erred in excluding evidence, under rule 404(b) of the Texas Rules of Evidence, of a subsequent bad act by Officer Bragg in a similar circumstance and in denying appellant the right to confront Officer Bragg about that subsequent bad act in accordance with appellant's Sixth Amendment right, and that appellant was harmed by the court's errors. Rule 404(b) states in part, "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive. . . ." Tex. R. Evid. 404(b). The trial court's decision to admit or exclude evidence will be upheld on appeal absent an abuse of discretion. Carter v. State, 145 S.W.3d 702, 712 (Tex.App.-Dallas 2004, pet. ref'd). That is, as long as the trial court's ruling was at least within the zone of reasonable disagreement, the appellate court will not intercede. Id. Whether objected to evidence of "other crimes, wrongs, or acts" has relevance apart from character conformity, as required by rule 404(b), is also a question for the trial court. Id. The trial court must conclude that the evidence tends in logic and common experience to serve some purpose other than character conformity to make the existence of a fact of consequence more or less probable than it would be without the evidence. Id. An appellate court owes no less deference to the trial judge in making this judgment than it affords him in making any other relevancy call. Id. In this case, appellant offered evidence of an incident in which Officer Bragg struck a suspect with his baton after pepper spray failed to result in the suspect's compliance. The suspect had already struck another police officer prior to Bragg using his pepper spray. The suspect had initially claimed that Bragg struck him while the suspect was handcuffed; however, the suspect eventually withdrew his allegations and dropped the matter. This incident appears to be materially different from appellant's arrest. The suspect in the incident was clearly resisting arrest and had already struck another police officer. The initial complaint was based on the suspect's claim that he was struck while handcuffed, which he later withdrew. We find no evidence in the record that this suspect alleged that he had been falsely arrested. We do not see how this incident can reasonably be viewed as evidence of Officer Bragg's motive in this case. Further, we agree with the State that evidence of the incident would suggest that Bragg was a physically abusive person, precisely the type of evidence rule 404(b) was designed to exclude. Given these facts, we cannot conclude that the trial court abused its discretion in excluding evidence of the subsequent incident. We resolve the first issue against appellant. The Sixth Amendment ensures that in "all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. See also Ex parte Taylor, 957 S.W.2d 43, 44 (Tex.Crim.App. 1997). Implicit within this right, as applied to the states via the Fourteenth Amendment, is the defendant's right of cross-examination. Garza v. State, 18 S.W.3d 813, 821 (Tex.App.-Fort Worth 2000, pet. ref'd). However, this right is not absolute. Porter v. State, 578 S.W.2d 742, 745 (Tex.Crim.App. 1979). The trial court retains wide latitude to impose reasonable limits on cross examination. The trial court must carefully consider the probative value of the evidence and weigh it against the risks of admission. Hoyos v. State, 951 S.W.2d 503, 506 (Tex.App.-Houston [14 th Dist.] 1997), aff'd, 982 S.W.2d 419 (Tex.Crim.App. 1998). Appellant wanted to cross-exam Officer Bragg regarding the subsequent dismissed indictment but has shown no relevance of that indictment to the present case. Appellant offered no evidence that the facts underlying the dismissed indictment were true. See Lopez v. State, 18 S.W.3d 220, 225-226 (Tex.Crim.App. 2000). Bragg provided details of the incident, but no evidence was produced that indicated that he had acted inappropriately. To the extent that the evidence was submitted to show character conformance, it would have been improper and prejudicial. Again, given these facts, we cannot conclude that the trial court abused its discretion disallowing cross examination concerning the subsequent claim of excessive force. We resolve the second issue against appellant. Because we have resolved the first and second issues against appellant, we need not reach appellant's third issue. We affirm the trial court's judgment.