Daniel Baltierra v. The State of Texas--Appeal from 167th District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-142-CR
DANIEL BALTIERRA,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 100,770, HONORABLE BOB JONES, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of burglary of a habitation. Tex. Penal Code Ann. 30.02 (1989). The jury assessed punishment, enhanced by two previous felony convictions, at imprisonment for life. We affirm.

On the night of November 14, 1989, appellant entered the apartment residence of Olga Martinez through an open window and assaulted Martinez with a knife. Appellant does not question the sufficiency of the evidence.

In his first point of error, appellant contends that the district court erroneously prohibited him from cross-examining Martinez regarding her bias against him and his family. In support of this contention, appellant refers us to a seven-page-long voir dire examination of Martinez by defense counsel and asserts, without further explanation, that the witness should have been required to answer "those questions" in front of the jury. Appellant neither specifies the questions he was not allowed to ask nor explains how they were relevant to the issue of the victim's alleged bias.

Counsel's voir dire of Martinez touched on two subjects. First, he asked Martinez if her fourteen-year-old daughter had a "crush" on appellant's brother and was angry because the brother had "rejected" her. Martinez denied this, saying that the two children were merely friends. The district court ruled that counsel could ask these questions in front of the jury. Appellant can base no claim of error on this favorable ruling.

The remainder of the voir dire examination of the victim concerned an incident in which her car was damaged in the apartment complex parking lot. Counsel asked Martinez if she had accused appellant's sister of causing the damage. Martinez replied that she did not know who had damaged her car. She said that persons who witnessed the incident told her that the person responsible entered a particular apartment, and that she had given that apartment number to the police. Martinez did not remember the number or know if it was the apartment occupied by appellant's family. The district court ruled that counsel could not pursue this line of questioning in front of the jury, and we assume that this is the basis for appellant's claim of error.

A defendant must be allowed great latitude to show any fact tending to establish ill feeling or bias on the part of a witness. Hurd v. State, 725 S.W.2d 249, 252 (Tex. Crim. App. 1987). Appellant's voir dire of Martinez, however, did not disclose any fact tending to establish that Martinez harbored any ill feeling toward appellant or his family because of the injury to her car. Because the district court's ruling did not keep from the jury any fact tending to show bias, no error is presented. The first point of error is overruled.

Next, appellant urges that the State was erroneously permitted to bolster Martinez' testimony by introducing in evidence her written statement to the police. The statement was offered and admitted at the conclusion of appellant's cross-examination of the witness.

A prior consistent statement by a witness is not generally admissible. Tex. R. Crim. Evid. Ann. 612(c) (Pamph. 1991). The State argues that the statement was admissible in this cause to rebut appellant's charge of recent fabrication or improper influence or motive on the part of Martinez. Tex. R. Crim. Evid. Ann. 801(e)(1)(B) (Pamph. 1991). We believe that this exception is not applicable in this cause.

During his cross-examination of Martinez, defense counsel attempted to impeach her in a number of ways. He asked her if she had given inconsistent statements to others concerning the attack. Martinez denied making any inconsistent statements, and appellant offered no evidence of any inconsistent statement. Defense counsel also asked Martinez if it were not true that she "[made] this story up after your daughter called the police and they were on their way." Martinez denied this. Finally, defense counsel asked Martinez if it were not true that "you were not asleep and that you had some man up there other than the defendant" and "you [felt] you had to make up this story because of your daughter saw you [sic]." Martinez denied this as well.

By his questioning, defense counsel accused Martinez of fabricating her accusation against appellant. Thus, the predicate was laid for admission of a prior consistent statement pursuant to Rule 801(e)(1)(B). To be admissible, however, the prior consistent statement must predate the motive to fabricate and, necessarily, the fabrication itself. Campbell v. State, 718 S.W.2d 712, 717 (Tex. Crim. App. 1986). Appellant's prior consistent statement to the police did not predate the alleged fabrication. We conclude that the trial court erred by admitting the written statement in evidence.

We also conclude that the error was harmless. Martinez' written statement is less than two pages long. It is entirely consistent with her testimony and contains no incriminating fact not included in her testimony. Martinez' account of the incident was also substantiated by the testimony of the investigating officer, who testified without pertinent objection to the statements made by Martinez on the night of the assault. No further reference to the written statement was made by the State after it was admitted. We are satisfied beyond a reasonable doubt that the admission of the written statement in evidence did not contribute to the conviction or punishment. Tex. R. App. P. Ann. 81(b) (Pamph. 1991); Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989). Point of error two is overruled.

Appellant's last point of error also concerns alleged improper bolstering. The prosecutor asked the police officer who responded to Martinez' call if he believed she told him the truth. The officer said that he did. The prosecutor then asked if the officer would have filed charges if he had not believed Martinez. The officer said he would not. At this point, appellant objected that this question violated a motion in limine and asked for a mistrial. The court refused the mistrial request but instructed the jury to disregard the officer's statement that he believed the complaining witness.

Assuming that this point of error was properly preserved, we find that the court's instruction to disregard was sufficient to cure the alleged error. The third point of error is overruled.

The judgment of conviction is affirmed.

 

[Before Justices Powers, Jones and Kidd]

Affirmed

Filed: March 4, 1992

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