MAJORITY | MAJORITY
Esequeil Loredo v. The State of Texas--Appeal from 54th District Court of McLennan County
Esequeil Loredo v. The State of Texas /**/
TENTH COURT OF APPEALS
THE STATE OF TEXAS,
From the 54th District Court
McLennan County, Texas
Trial Court # 97-439-C
Although the facts differ significantly, I agree with the majority that an analysis similar to that articulated by the Court of Criminal Appeals in Lopez v. State applies to Loredo s complaints about the limitation of his cross-examination of the out-cry witness in this proceeding. Lopez v. State, 18 S.W.3d 220, 225-26 (Tex. Crim. App. 2000). However, I disagree that there was no evidence to establish that the accusation against Loredo was false. During Nellie s testimony outside the presence of the jury, the State s questioning of her concerning the prior accusation involved the following exchange:
Q (by the State):When you mentioned that you confronted [Loredo] about possibly doing something to [G.H.], tell what happened. Tell the Court what happened when you asked her in front of him.
A (by Nellie):Well, I confronted him. I took both the girls in there, and we were in the living room. And I asked him in front of her and in front of him if he had done that to her.
A:If he had been touching her private part. And he said no. And then
Q:What did she say?
A:He told her to tell the truth. He told her to tell the truth, nobody was going to get mad at her, for her to tell the truth, so she said yes. Then he slapped her.
Although slim, there was some evidence Loredo s denial of the charge as related by Nellie which if believed by the jury, would have established that the accusation against Loredo involving G.H. was false. Additionally, the accusation involving G.H. was similar to the charges involving S.H. Therefore, the trial court should have allowed Loredo the opportunity to present this evidence to the jury. Id.; Tex. R. Evid. 104(b) (requiring court to admit evidence whose relevancy depends upon the fulfillment of a condition of fact . . . upon . . . the introduction of evidence sufficient to support a finding of the fulfillment of the condition. ). Thus, I would find that the court erred when it limited Loredo s cross examination of Nellie and conduct a harm analysis of this error.
When determining the harm flowing from an erroneous limitation of a defendant s right to cross-examine a witness, we should apply the constitutional-error standard in Texas Rule of Appellate Procedure 44.2(a). Tex. R. App. P. 44.2(a); McDaniel v. State, 3 S.W.3d 176, 181 (Tex. App. Fort Worth 1999, pet. ref d). We start with the assumption that the damaging potential of the cross-examination were fully realized. Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986)); McDaniel, 3 S.W.3d at 181; Kesterson v. State, 997 S.W.2d 290, 293 (Tex. App. Dallas 1999, no pet.). Bearing that assumption in mind, we are to review the error in connection with five factors: (1) the importance of the witness testimony in the State 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 State s case. Id. Finally, in light of the assumption and the error s connection to the five factors, we are to determine if the error was harmless beyond a reasonable doubt. Id.; Tex. R. App. P. 44.2(a).
Even assuming that the cross-examination of Nellie would establish that Loredo had been falsely accused of abusing his youngest daughter, I would find beyond a reasonable doubt that the error in excluding this evidence did not contribute to Loredo s conviction or punishment. Id. Thus, I would find the error harmless. Id.
Because I would find that there was error, but that it was harmless, I concur in the court s judgment.
Concurring opinion delivered and filed October 18, 2000