SHIRLEY ANN ADAMS v. THE STATE OF TEXAS--Appeal from Criminal District Court of Jefferson County

NUMBER 13-01-340-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI-EDINBURG

SHIRLEY ANN ADAMS ,   Appellant,

v.

STATE OF  TEXAS  , Appellee.

On appeal from the Criminal District Court

of Jefferson County, Texas.

OPINION

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Chief Justice Rogelio Valdez

Appellant, Shirley Ann Adams was convicted of aggravated assault, with punishment enhanced as a repeat felony offender. Adams was sentenced to twenty years imprisonment to be served consecutively to a separate conviction. By two points of error, Adams contends the trial court erred by (1) restricting the cross-examination of the complainant, and (2) by failing to grant Adams=s request for a mistrial after the court admitted testimony that Adams had previously been sentenced to life imprisonment in a separate arson case. We affirm.

I. FACTS

Adams was convicted of the aggravated assault of Ella Williams, the current girlfriend of Adams= ex-husband, Shelley Stalworth. Ella Williams, complainant, returned from the grocery store with her boyfriend, Shelley Stalworth, who had previously been married to Adams. Williams testified that Adams yelled offensive statements at her. Williams also testified that Adams was intoxicated even though she had not seen Adams consume any alcohol. In contrast, Adams claimed Williams was the one who yelled offensive statements which led to the altercation. Adams claimed Williams pushed her off the porch and she stabbed Williams in self defense because Williams was armed with a lead pipe.

At trial, Adams=s attorney cross-examined Williams as to whether she had been smoking crack that day. Williams denied that she was under the influence of drugs or alcohol at the time but admitted that she was Ain treatment@ for the abuse of crack cocaine. Williams testified that she attempted to call the police but Adams took the phone from her. Stalworth forcibly removed Adams from the house. Adams stabbed Williams three times outside the house. Stalworth drove Williams to the hospital to get treatment for the stab wounds and Adams followed. Adams then slashed the tires of Stalworth=s car. Both Stalworth and Williams testified that Williams did not ever use a weapon to attack or defend herself. Adams=s daughter testified stating Williams had a lead pipe and Adams stabbed Williams in self-defense. The critical issue for the jury was to decide who was the aggressor in the altercation.

II. RESTRICTION OF CROSS EXAMINATION

In her first point of error, Adams contends the trial court erred by (1) restricting the cross examination of Williams. We review a trial court=s exclusion of evidence under an abuse of discretion standard of review. See Erdman v State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993); Harwood v. State, 961 S.W.2d 531, 536 (Tex. App.BSan Antonio 1997, no pet.). The extent of cross examination is within sound discretion of the trial court. See United States v. Ramirez, 533 F.2d 138, 140 (1976). A trial judge has not abused his discretion unless he has Aacted arbitrarily and unreasonably, without reference to any guiding rules or principles.@ See Harwood, 961 S.W.2d at 536; Breeding v. State, 809 S.W.2d 661, 663 (Tex. App.BAmarillo 1991, pet. ref=d). When the excluded evidence was sought during cross examination, the Confrontation Clause of the United States Constitution is implicated. Such errors are subject to harm analysis. See U.S. CONST. amend VI; Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991).

In the case at bar, Williams testified she was not under the influence of alcohol or drugs at the time of the altercation although she claimed to be in treatment for crack cocaine. Williams testified that she was an experienced drinker and had previously abused crack cocaine. Adams did not attempt to make further inquiries on the subject. There was no restriction of Williams=s testimony in the record, therefore no error occurred.

While the trial court did not limit the cross examination of Williams the court sustained an objection to the cross examination of Adams=s daughter when counsel inquired into Williams=s prior use of drugs and alcohol. Whether or not Williams used crack cocaine or alcohol around the time of the altercation is relevant to determine whether Williams attacked Adams first thereby allowing Adams to claim self defense. See Harwood, 961 S.W.2d at 538-39. On cross examination, Adams=s daughter stated that she knew Williams to drink alcohol and smoke crack regularly. The general rule is that evidence of a person=s character is inadmissible to prove that he or she acted in conformity therewith. Id. General evidence of the character of a victim is admissible if pertinent and offered by the accused or by the prosecution in rebuttal. See TEX. R. EVID. 405(b); Harwood, 961 S.W.2d at 539. A question which tests the truthfulness of a witness=s testimony by inquiry into facts and circumstances surrounding the transaction testified to on direct by the witness is not collateral and is therefore relevant. See Keller v. State, 662 S.W.2d 362, 365 (Tex. Crim. App. 1984). The court properly allowed inquiry into Williams=s use of alcohol or drugs on the day of the altercation because Williams=s state of intoxication is relevant to determine whether Williams or Adams attacked first. See Delaware v. Van Arsdall, 475 U.S. 673, 677-78 (1986)(holding bias of a witness is subject to exploration at trial and is always relevant as discrediting the witness affecting the weight of his testimony).

The State objected to further inquiry into Williams= previous use of drugs or alcohol since Williams testified she was not under the influence of drugs or alcohol on the day in question. The court sustained the State=s objection. The cross examination then ended without further exploration of Williams=s drug and alcohol use. Inquiry into Williams=s prior use of drugs and alcohol is irrelevant to the case at bar. Id. There is no evidence of harm cause by restriction of cross examination. See Shelby, 819 S.W.2d at 547. The Court properly limited the cross examination of Adams=s daughter regarding Williams=s prior drug use. See Cloud v. State, 567 S.W.2d 801, 802 (Tex. Crim. App. 1978) (holding that the extent to which a witness may be cross examined on a collateral matter rests within sound discretion of the trial judge). We conclude that the trial court did not abuse its discretion in limiting the cross examination of the Adams=s daughter regarding Williams=s prior drug and alcohol use. See Van Arsdall, 475 U.S. at 677-78. Therefore, Adam=s first point of error is overruled.

III. EVIDENCE OF PRIOR CONVICTIONS

In her second point of error Adams claims the trial court erred by admitting testimony regarding Adams=s prior conviction and sentence to life imprisonment for arson. Specifically, Adams argues the court should grant a mistrial because an instruction for the jury to disregard is insufficient for such prejudicial testimony. In the case at bar, the State asked Adams whether she had been convicted of arson and sentenced to life imprisonment. The court sustained the objection that the sentence is irrelevant and asked the jury to disregard the statement. A witness= inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard. See Wesbrook v. State, 29 S.W.3d at 115 (holding in most instances an instruction to disregard the remark will cure the error); Wilkerson v. State, 881 S.W.2d 321, 327 (Tex. Crim. App. 1994); Rojas v. State, 986 S.W.2d 241 (Tex. Crim. App. 1998). Therefore, it is not reversible error for the trial court to sustain the objection and instruct the jury to disregard statements regarding the length of the sentence for a prior conviction.

Admission of evidence regarding prior convictions is admissible if elicited from the defendant or established by public record but only if the crime was a felony or involved moral turpitude, and the court finds the probative value of admitting the evidence outweighs the prejudicial effect. See TEX. R. EVID. 609(a); Theus v. State, 845 S.W.2d 874, 876 (Tex. Crim. App. 1992). In a standard balancing analysis the court should look at the following factors: (1) the prior conviction=s impeachment value; (2) its temporal proximity to the crime on trial and the defendant=s subsequent criminal history; (3) the similarity between the prior offense and the present offense; (4) the importance of the defendant=s testimony; and (5) the importance of the credibility issue. See Theus, 845 S.W.2d at 881; Hernandez v. State, 976 S.W.2d 753, 775 (Tex. App.BHouston [1st Dist.] 1998, pet. ref=d). A ruling permitting use of prior conviction to impeach will be reversed on appeal only upon a showing of clear abuse of discretion. See Theus, 874 S.W.2d at 881.

Adams contends the prior arson conviction is not relevant and therefore has no probative value. Evidence of prior convictions for felonies has a relevance value on the issue of credibility that is well recognized. See Moreno v. State, 22 S.W.3d 482, 488 (Tex. Crim. App. 1999). Rule 609(a) lists factors to determine admissibility of prior convictions without regard to relevance. See TEX. R. EVID. 609(a); Theus, 845 S.W.2d at 879. Article 37.07 '3(g) of the Code of Criminal procedure provides that evidence may be offered as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant. See McGee v. State, 35 S.W.3d 294, 302 (Tex. App.BTexarkana, 2001, pet. denied). In the case at bar, Adams=s prior conviction remains relevant because of its temporal proximity to the crime in question and to sentencing because the prior conviction for arson classifies Adams as a repeat felony offender. See United States v. Hayes, 553 F.2d 824, 828 (2nd Cir. 1977) (holding temporal proximity of a prior conviction will favor admission if the past crime is recent and if witness has demonstrated a propensity for running afoul of the law).

The impeachment value of crimes that involve deception is higher than crimes that involve violence and the latter have higher potential for prejudice. See Theus, 845 S.W.2d at 881; Hayes, 553 F.2d at 828. In Theus v. State, the Court held evidence of a prior conviction inadmissible because (1) it had so little probative value on the question of Adams=s credibility, and (2) the trial judge failed to dispel the prejudicial effect when presented with the opportunity. See Theus, 845 S.W.2d at 882. In the instant case, the arson conviction was for a crime substantially different from the prosecution. Therefore we conclude there is no prejudice to Adams that inevitably results from the introduction of a conviction for the same crime as that for which Adams is on trial. Id.; see also Hayes, 553 F.2d at 828. Adams=s second point of error is overruled.

Accordingly, the trial court is affirmed.

ROGELIO VALDEZ

Chief Justice

Do not publish

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 24th day of October, 2002.