Opinion
No. 05-02-01390-CR
Opinion Filed August 8, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 3, Collin County, Texas, Trial Court Cause No. 003-84083-00 AFFIRM
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
OPINION
Appellant appeals her conviction for resisting arrest. After finding appellant guilty, the jury assessed punishment at a $2000 fine, probated for two years. In a single point of error, appellant contends the trial court erred in excluding relevant evidence. For the following reasons, we affirm the trial court's judgment. Appellant was charged by information for resisting arrest. At trial, Michael Stom testified that on the afternoon of September 1, 1999, while working as a Plano police officer, he responded to a missing child call at appellant's residence concerning her nine-year-old son. While Stom was taking a report, appellant's son returned home and Stom left. After he left, Stom checked appellant's name on his police computer to check for any outstanding warrants. Stom found that appellant had an outstanding warrant for an unpaid speeding ticket. Later that evening, Stom returned to appellant's house to serve the warrant. Before doing so, Stom called another officer, Jeff Rich, to tell him he intended to serve the warrant. When Stom arrived at appellant's residence, he knocked on the door. Appellant answered and Stom told her he had a warrant for her arrest. Appellant screamed "No" and attempted to slam the door in Stom's face. Stom grabbed her hand and put on one handcuff. Appellant continued to struggle. Appellant also urinated on the floor after threatening to do so. During the struggle, appellant's parents and son came from the rear of the residence. Appellant's son, in an effort to help appellant, struck at the officer. Because Stom was fearful for his safety, he called for emergency back-up. Stom did not have appellant under control and he effectuated a "straight-arm-bar take down" causing appellant to fall onto a table. Stom then dragged appellant outside. At that point, Officer Rich had arrived and Stom heard the sirens of other officers responding to his emergency call. When Officer Rich arrived, Rich took control of appellant's parents and her son. Stom was then able to complete the arrest. Stom admitted he used pepper spray during the incident, but said he missed appellant. Stom decided to leave the police force shortly after appellant's arrest. According to Stom, he decided to leave the force to pursue different interests. On cross-examination, Stom admitted that when he left the police force, he was under investigation by internal affairs concerning a complaint about appellant's arrest. Stom also admitted that appellant's case was one of many factors that contributed to his decision to leave. However, Stom denied that he had an explosive temper or that he had problems handling stressful situations. Officer Jeff Rich testified and confirmed that Stom had called him before executing the arrest warrant. When Rich arrived at appellant's residence, Stom was on the ground in the doorway struggling with appellant. Appellant's nine-year old son was swinging at Stom violently and appellant's parents were screaming at Stom. Rich pushed the boy back and kept appellant's parents away, enabling Stom to complete the arrest. Officer Harwell testified that after he arrived at the scene, he transported appellant to jail. During the drive, appellant was screaming about the incident and complaining of being sprayed with pepper spray. Appellant threatened to urinate in Harwell's vehicle. When he arrived at the jail, Harwell discovered appellant had indeed urinated. While in Harwell's vehicle, appellant told Harwell that Stom had come to her residence to arrest her for outstanding traffic warrants. Because appellant did not want to be arrested in front of her son, she tried to close the door on Stom. Appellant presented defensive evidence through her own testimony and the testimony of her son and father. According to appellant's witnesses, the officer went to appellant's residence and demanded to speak to her. The officer was rude and did not tell appellant he had a warrant for her arrest. Appellant told the officer she was busy and tried to close the door on him. The officer then slammed the door open, throwing appellant against the wall. He then slammed her into the wall again. The officer told appellant she was going to jail, but did not tell her why. Appellant told the officer she would go with him, but begged him to allow her to use the restroom first. When he did not allow her to do so, she urinated on the floor. The officer then sprayed her with pepper spray. According to appellant's witnesses, she did not resist arrest. In her sole point of error, appellant contends the trial court erred in excluding evidence of Stom's prior misconduct while on the police force. In an offer of proof, Stom testified that he was suspended from the police force for fifteen days in November 1998 for striking a prisoner in the kidneys four times while the prisoner was being restrained by four other officers. Stom also admitted that he received oral counseling in November 1997 for using "improper procedures," oral counseling in March 1998 for a vehicle accident, and received a two-day suspension in March 1998 for "unprofessional conduct." The State objected that the proffered evidence was not relevant and was inadmissible under the rules of evidence. The trial court excluded the evidence. We review a trial court's decision to exclude evidence under an abuse of discretion standard. Mozon v. State, 991 S.W.2d 841, 846-47 (Tex.Crim.App. 1999); Kesterson v. State, 997 S.W.2d 290, 292 (Tex.App.-Dallas 1999, no pet.). A trial court abuses its discretion when its "decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Kesterson, 997 S.W.2d at 292 ( citing Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992)). Appellant first asserts the trial court abused its discretion in excluding the evidence because it was relevant to attack Stom's credibility. However, under rule 608(b) of the rules of evidence, specific instances of conduct of a witnesses for the purposes of attacking the witness' credibility, other than conviction of a crime, may not be inquired into on cross-examination nor proved by extrinsic evidence. Tex.R.Crim.Evid. 608(b). Appellant nevertheless asserts that the evidence was admissible to correct the "misimpression" Stom left with the jury that he was a "peaceable, regulation-following civil servant." To show Stom left this impression with the jury, appellant relies on testimony she elicited from Stom on cross-examination that (1) while he was in the police force he "got along great" with his fellow officers, (2) he did not have any problems handling stressful situations, and (3) that he did not have an explosive temper. However, because the alleged false impression was elicited by appellant, she was not permitted to offer otherwise inadmissible extrinsic evidence to then correct it. See Lopez v. State, 928 S.W.2d 528, 531 (Tex.Crim.App. 1996). Appellant next asserts evidence of Stom's misconduct was admissible under rule 404(b). Under rule 404(b), evidence of specific acts of misconduct are not admissible to show the character of a person or to show he acted in conformity therewith. See Tex.R.Crim.Evid. 404(b). Such evidence may, however, be admissible if it has relevance apart from its tendency to show the character of a person to show he acted in conformity therewith. Tate v. State, 981 S.W.2d 189, 193 (Tex.Crim.App. 1998). In this point, appellant asserts evidence of the officer's prior misconduct had a relevance apart from character conformity because it rebutted the officer's testimony concerning his temperament on the police force. Appellant does not assert the proffered evidence was probative of any discrete factual issue in dispute. Rather, she asserts only that the evidence was admissible to impeach the officer's credibility. However, impeachment evidence, which is not substantive evidence, is not admissible for "another purpose" under rule 404(b). See DeLeon v. State, 77 S.W.3d 300, 313 (Tex.App.-Austin 2001, pet. ref'd). Finally, appellant asserts the trial court's exclusion of the evidence violated her rights under the Confrontation Clause of the United States Constitution. Initially, we note appellant did not object in the trial court that exclusion of the proffered evidence would violate her rights under the Confrontation Clause. Therefore, she waived this contention for appellate review. See Stewart v. State, 995 S.W.2d 251, 255 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Furthermore, under her Confrontation Clause analysis, appellant fails to show how exclusion of the evidence violated her constitutional rights. Rather, she discusses only whether the alleged error constituted harmful error under Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986). Rule 38.1(h) of the rules of appellate procedure, requires an appellant to include in her brief a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex.R.App.P. 38.1(h); Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App. 1997); Billy v. State, 77 S.W.3d 427, 429 (Tex.App.-Dallas 2002, pet. ref'd). Here, appellant has provided no substantive legal argument or authority to show her rights under the Confrontation Clause were violated under the facts of this case. Therefore, this point is inadequately briefed and presents nothing to review. See Billy, 77 S.W.2d at 429. Finally, even if appellant had preserved error, we would conclude appellant has failed to establish a violation of the Confrontation Clause. The Confrontation Clause of the United States Constitution may require the admissibility of evidence that would otherwise be excluded by the rules of evidence. Lopez, 18 S.W.3d 220, 222-23 (Tex.Crim.App. 2000). The Confrontation Clause grants a defendant the right to cross-examine the witnesses against him. Id. at 222. Whether there has been a violation of the Confrontation Clause is determined on a case-by-case basis. Id. In determining whether evidence must be admitted under the Confrontation Clause, the trial court must balance the defendant's right to cross-examine and the probative value of the proffered evidence against the risk factors associated with admission of the evidence. Id. The trial court maintains broad discretion in 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. After reviewing the facts of this case, we cannot conclude the trial court abused its discretion in excluding the evidence. The only probative value appellant asserts the evidence had was to attack Stom's general credibility. Specifically, she asserts it was probative because Stom denied having a temper, and claimed he responded well to stressful situations, and got along well with his fellow officers. However, the proffered evidence did not directly contradict Stom's testimony and was only marginally relevant to rebut his characterization of his time on the police force. Moreover, appellant has failed to assert how the proffered evidence would show any specific motive or bias Stom might have had to testify falsely in this case. Finally, admission of the evidence would present a significant risk that the jurors might be distracted from the charged case and might disregard appellants' actions due to their distaste for Stom's prior actions. After reviewing the record as a whole, we cannot conclude the trial court's exclusion of the proffered evidence violated appellant's rights under the Confrontation Clause. We overrule appellant's sole point of error. We affirm the trial court's judgment. MICHAEL J. O'NEILL, Justice.
The record does not reveal the facts surrounding Stom's use of "improper procedures" or the vehicle accident. The record does show Stom's "unprofessional conduct" consisted of his consuming alcohol with his nineteen year old date.