Opinion
No. 04-03-00226-CR
Delivered and Filed: June 1, 2005. DO NOT PUBLISH.
Appeal from the County Court at Law No. 12, Bexar County, Texas, Trial Court No. 742714, Honorable H. Paul Canales, Judge Presiding. Affirmed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Following a jury trial, Jose Trinidad Vargas was convicted of driving while intoxicated. In one issue on appeal, Vargas contends that during the testimony of one of the State's witnesses, he was denied his right to confrontation under the Sixth Amendment. Finding no error, we affirm.
Factual and Procedural Background
On December 5, 1999, Grace Garza, a certified peace officer employed by the University of Texas at San Antonio ("UTSA"), was called to a disturbance at an apartment complex located on campus. While at the apartment complex, Officer Garza spoke with Vargas. She observed that Vargas was very argumentative, had red, bloodshot eyes, slurred speech, and was swaying side to side. Vargas smelled like beer and appeared to have been drinking. Officer Garza warned Vargas not to drive because he was intoxicated. Later that night, she observed Vargas driving a truck into the complex. There was a female in the truck with him. Because Officer Garza thought Vargas was intoxicated, she stopped him. She asked another officer, Officer Smith, to come to the scene. When Officer Smith arrived, Vargas was standing outside the truck. Officer Smith conducted field sobriety tests on Vargas and then arrested Vargas for driving while intoxicated. Vargas testified that when Officer Garza stopped him, he was not driving his truck but instead was standing behind his truck talking to his girlfriend. In fact, according to Vargas, he did not even have his keys with him. On direct examination, Officer Garza testified that she left her employment with UTSA in 2000 because she had been dismissed. Vargas called Officer Garza to testify during his case in chief and asked her about her dismissal. According to Officer Garza, she had been accused of a total of ten violations. Upon being asked what violations she was accused of, the trial court dismissed the jury and conducted a hearing outside the presence of the jury. During that hearing, Officer Garza stated that she had been cleared of all violations with the exception of falsifying a record, and that violation did not pertain to this trial. Vargas argued that he should be allowed to question Officer Garza on this matter because it was relevant to her credibility. The trial judge refused to allow Vargas to further question Officer Garza in this regard. Vargas did make a bill of exceptions indicating that, if the judge had allowed further questioning, he would have asked Officer Garza the following: (1) did she give information about her dismissal to any investigator or prosecutor with the District Attorney's office; (2) what were the particulars of the offense of the report she was accused of falsifying and the situation with obscene language; (3) what were the dates of these allegations and were there any similarities to the allegations and Vargas's case; (4) was she trying to testify to prove favor with UTSA; and (5) was she cited for not following procedure or falsifying or destroying evidence in Vargas's case. Following deliberations, the jury returned a verdict of guilty. The trial court sentenced Vargas to six months in jail, probated for two years, a $500 fine, $400 of which was probated, and 180 hours of community service.Discussion
In his sole issue on appeal, Vargas argues the trial court abused its discretion, in violation of his constitutional right to confront witnesses, when it prohibited him from impeaching Officer Garza by pursuing the allegation of falsifying a record in an unrelated case, for which she was dismissed from employment with UTSA. The standard of review for a trial court's evidentiary ruling is abuse of discretion. Long v. State, 10 S.W.3d 389, 396 (Tex.App.-Texarkana 2000, pet ref'd). The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. U.S. Const. amend. VI; Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App. 2000). Confrontation means more than being allowed to confront the witness physically. Lopez, 18 S.W.3d at 222. A primary interest secured by the Confrontation Clause is the right of cross-examination. Id. Each Confrontation Clause issue must be weighed on a case-by-case basis, carefully taking into account the risk factors associated with admission of the evidence. Id. In weighing whether evidence must be admitted under the Confrontation Clause, the trial court should balance the probative value of the evidence sought to be introduced against the risk its admission may entail. Id. The trial court maintains broad discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. Id. In considering Vargas's issue, we first note that the trial court was justified in limiting cross-examination of Officer Garza under Texas Rule of Evidence 608(b). This rule provides that the use of specific instances of conduct to attack a witness's credibility, other than conviction of a crime, may not be the subject of inquiry on cross-examination. See Tex. R. Evid. 606(b). Vargas complains that he nevertheless should have been allowed to question Officer Garza about her "violations" with the campus police to test her credibility. But, rule 608(b) is specifically designed to prohibit this form of question on cross-examination. The Texas Court of Criminal Appeals, however, has held that the Confrontation Clause occasionally may require the admissibility of evidence that the Rules of Evidence would exclude. Lopez, 18 S.W.3d at 225. To make this determination, we must balance the probative value of the evidence sought to be introduced against the risk its admission entails. Id. The jury heard testimony from Officer Garza that she had been dismissed from employment with UTSA and that she had been accused of a total of ten violations. The trial court did not allow questioning to identify what the specific violations were. However, based on the hearing held in the jury's absence, it is clear that, although Officer Garza had been accused of ten violations, she was dismissed only for one — falsifying a record. When asked about the accusations against her, she testified:One was falsifying a record. Another one was, I believe it was using obscene language to a prisoner. The other ones — there were numerous items. I can't remember all of them. If I might add, I was cleared of those violations through a panel of my peers. Through the hearing UTSA had the final say so, and they decided to keep falsifying a record as part of the reason for my termination. They thought that with my — on the cover sheet it was my duty to check all — the information to make sure that I had — that the officer had enough information for the magistrate — for the booking slip. He did not have the arrest authorities on there. I — with the arresting police, which was also part of my duties — and the officer signed — I believe the officer signed off on that one. But that's the only one that UTSA decided to keep as part of my termination.It is apparent from his ruling that the trial court believed that any probative value of this evidence was outweighed by the risk the evidence would unduly prejudice the jury, confuse the issues, and inject cumulative or collateral evidence. It does not appear from Officer Garza's testimony outside the jury's presence that the incident for which she was terminated was at all related or similar to the incident involving Vargas. Under these circumstances, we cannot say the trial court abused its discretion in limiting cross-examination of Officer Garza. Even if the trial court had erred, any error was harmless. Under Texas Rule of Appellate Procedure 44.2(a), we do not reverse a trial court's judgment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex.R.App.P. 44.2(a). The jury heard Officer Garza testify that she had been dismissed from UTSA because of "numerous violations." She then stated that there were a total of ten violations. The jury, therefore, was left with the impression that she had been dismissed because she had been accused of ten violations. Outside the jury's presence, however, Officer Garza testified that she had been cleared of all charges but one — falsifying a record. Based on this record, we cannot say that limiting Vargas from cross-examining Officer Garza on the one charge of falsifying a record was harmful under rule 44.2(a). We overrule Vargas's sole issue on appeal and affirm the trial court's judgment.