GILBERT JACKSON,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00583-CR
GILBERT JACKSON,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES STEWART, ROWE AND CARVER FN:1
OPINION BY JUSTICE CARVER
JUNE 21, 1989
Gilbert Jackson was convicted by a jury of murder and the court assessed his punishment at life imprisonment. Jackson complains on appeal that the trial court improperly: (1) permitted the State to introduce evidence of an extraneous offense; (2) allowed the State to exercise its peremptory strikes upon racial considerations alone; (3) limited the cross-examination of the State's chief witness; and (4) overruled Jackson's motion for new trial based upon newly discovered evidence. Finding such complaints unjustified under the record, we affirm.
        As for Jackson's first complaint concerning the extraneous offense, the record reflects that the State asked its eyewitness if she saw the police go upstairs and knock at Jackson's door. The witness replied, "No. When I saw the police . . . when they knocked on Gilbert's door, that was the first shooting." (emphasis added). No objection was offered by Jackson, but on cross-examination Jackson developed: that the police had been to the premises and to Jackson's door earlier in the evening; that the neighborhood was rough; that the police were out there all the time; and that there were a lot of people in trouble "over there" and "all kinds of things were going down over there." Despite Jackson's objection, the State was permitted on re-direct to develop that, earlier in the evening, "Phil" and Jackson "had gotten into it," following which Phil bought a .22 caliber gun and fired into the air in the alley behind Jackson's building.
        The eyewitness's initial relation of the "first shooting" was unresponsive to the State's question; moreover, Jackson made no objection, nor does he complain here. Furthermore, Jackson's development of some of the details in his cross-examination justified the State in laying the omitted details before the jury. See Berry v. State 596 S.W.2d 857, 862 (Tex. Crim. App. 1980); Parr v. State 557 S.W.2d 99, 102 (Tex. Crim. App. 1977); Martinez v. State, 504 S.W.2d 897, 899. (Tex. Crim. App. 1974). The State was entitled to avoid any false impression from the limited relation of earlier events by securing a full disclosure from its eyewitness of all the facts of the earlier events. See Martinez, 504 S.W.2d at 899. No error is shown. Consequently, we overrule point of error one.
        Jackson next complains, in his second point of error, that the State was permitted to strike black potential jurors from his trial jury without a racially neutral explanation. See Batson v. Kentucky, 476 U.S. 79, 94 (1986); Keeton v. State, 749 S.W.2d 861, 867 (Tex. Crim. App. 1988). Batson and Keeton place the burden of a showing on such a complaint upon Jackson. Jackson must demonstrate in the record that he is a member of a cognizable racial group and that the State exercised its peremptory challenges to remove from the venire members of the accused's race. Batson, 476 U.S. at 94; Keeton, 749 S.W.2d at 867. The record of the hearing conducted on Jackson's complaint fails to reflect any evidence, or stipulation, that Jackson was a member of a cognizable racial group. We hold that Jackson failed to support his complaint with the showing required by Batson and Keeton.
        In his third point of error, Jackson complains that the trial court improperly restricted his cross-examination of the State's eyewitness. Her testimony in two sessions before the court and out of the hearing of the jury related to the search of Jackson's premises, with the consent of one "Cherry," a woman who lived there with Jackson. Jackson specifically urges that the witness first testified she had not discussed the status of Cherry with the prosecutor but subsequently admitted she had mentioned it. The witness claimed that she did not understand Jackson's question. Jackson appears to urge that, even though a witness's conflicting testimony and explanation is tested and accepted by the court in a hearing challenging a warrantless search, nevertheless, a jury trying a different issue may re-test the same conflicting testimony and explanation and reject it so as to impeach the witness. We cannot agree. Cross-examination may be limited short of a clear abuse of discretion. Chvojka v. State, 582 S.W.2d 828, 831 (Tex. Crim. App. 1979). The probative value of the sought-after examination must be balanced against its potential risks of undue prejudice, embarrassment or harassment of witness or a party, the possibility of misleading the jury, and the possibility of undue delay or waste of time. Chvojka, 582 S.W.2d at 831. Here the witness's responses to the trial court in the search hearing were not probative of any issue before the jury. The witness's responses to the trial court were about her memory of discussions with the prosecutors, not her memory of the relevant fact. If the witness might be said to have committed perjury, it was upon a collateral and minor matter, not worthy of prosecution in or of itself, and not sufficient to impeach her recall of facts relevant to the issue being tried. The witness's credibility was already attacked by Jackson by his showing of her two prior felony convictions of welfare fraud; by showing her bias against Jackson because they did not get along; and by showing she only went to the police after her niece's boyfriend had been brought in for questioning. We find the trial court's discretion in excluding this additional effort at impeachment was correct and no error is shown. We overrule point of error three.
        Finally, Jackson complains, in his fourth point of error, that the trial court improperly denied his motion for new trial based upon newly discovered evidence. Jackson urges that the State's eyewitness, Laura Millard, had described that she and one "Butch" were sitting on a truck when she saw Jackson shoot the deceased with a shotgun; that Jackson has been unable to locate Butch before the trial because he did not know his true name; and that no one knew that Butch had exculpatory testimony until after the trial when Jackson's brother found him. Jackson offered Butch's testimony in support of his motion to the effect that, based upon where the State's eyewitness was sitting, he did not "think" she could have seen where the gunshot came from because he could not see.
        Jackson's motion was addressed to the sound discretion of the trial court, which discretion should not be disturbed absent a showing of a clear abuse of such discretion. Etter v. State, 679 S.W.2d 511, 515 (Tex. Crim. App. 1984). Jackson was required to demonstrate that the "new evidence" was competent and material, that the existence thereof was unknown to him, and that his failure to discover or utilize such evidence at trial was not a want of diligence on his part. Jones v. State, 711 S.W.2d 35, 36-40 (Tex. Crim. App. 1986). "Competent" means admissible evidence and Butch's evidence may qualify as admissible. "Material" means evidence that would probably bring about a different result on another trial but "material" evidence is not merely cumulative, corroborative, collateral or impeaching. Whitmore v. State, 570 S.W.2d 889, 896 (Tex. Crim. App. 1976). Butch's evidence offers no facts of its own but offers an opinion that, since he could not see who shot the deceased, and since he could see the position in which Laura Millard was sitting, he did not think she could see who shot the deceased. Such testimony is "cumulative" to the extended examinations of prosecution and defense as to the eyewitness's opportunity to observe who shot the deceased and is "impeaching" as to her claimed opportunity to observe. We conclude that the trial court correctly denied the motion for new trial and overrule point of error four.
        AFFIRMED.
                                                  
                                                  SPENCER CARVER
                                                  JUSTICE, RETIRED
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00583.F
 
FN:1 The Honorable Spencer Carver, Justice, Retired, Court of appeals, Fifth District of Texas at Dallas, sitting by assignment.
File Date[01-02-89]
File Name[880583]