DONNIE LEE SLOAN, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 20, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01418-CR
............................
DONNIE LEE SLOAN, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 36493
.................................................................
OPINION PER CURIAM
Before Justices Whitham, Rowe and Whittington
        Donnie Lee Sloan appeals his jury conviction for aggravated robbery for which the jury assessed punishment at fifty years' confinement and payment of a $500 fine. In three points of error, appellant contends that the trial court erred in limiting cross-examination intended to show bias on the part of the complainant, in limiting cross-examination of the complainant so that the jury was not informed of all of the facts and circumstances of the offense, and in admitting evidence that appellant was on parole and that his parole was revoked. Finding no error, we affirm.        
        The complainant testified that she did not know appellant. He came to her house, which was for sale, and said he was interested in seeing it. He viewed the house briefly and said he would return later with his wife. He returned about thirty minutes later, without his wife, and said he wanted to measure the bathtub. After measuring the bathtub, appellant grabbed the complainant by the hair and threw her onto a bed. He held a knife, with a four-inch blade, to her throat. She screamed, but stopped when appellant said he would hurt her children if she did not stop. He asked if she wanted to have sexual intercourse, and asked if there was any money or guns in the house. The complainant gave him $5.00 from her purse, and he left, saying that this was his job, that he did this to women all the time to teach them not to let strange men into the house.
        In point of error one, appellant contends that the trial court erred in restricting his cross-examination of the complainant concerning her sexual promiscuity and her practice of exchanging sexual favors for illegal drugs. Appellant avers that the complainant had offered him sex in exchange for drugs, and was angry with him because of some problem with drugs they were sharing at her home. He argues that he should have been able to present this evidence to the jury to explain the complainant's bias against him. Appellant represented himself at trial. During his cross-examination of the complainant, appellant attempted to elicit from her that she was promiscuous, that she had been unfaithful in her marriage, and that there had been in the past a "jealous episode" made public. The trial court prohibited general questioning concerning the complainant's alleged actions with others, but allowed appellant to ask whether the complainant had invited him to come to her home after her children went to bed, whether she came to the door wearing a robe, and whether they had an agreement that he would supply her drugs in exchange for sex.
        In exercising the constitutional right of cross-examination, a defendant is allowed great latitude to show any fact which would attempt to establish ill feeling, bias, motive and animus upon the part of the witness testifying against him. Hurd v. State, 725 S.W.2d 249, 252 (Tex. Crim. App. 1987). Nevertheless, the extent to which a witness may be cross-examined for purposes of showing bias on collateral matters rests in the sound discretion of the trial judge. Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. 1982). The trial judge must balance the probative value of the evidence sought to be introduced against the risks its admission may entail, including the possibility of undue prejudice, embarrassment or harassment to a witness or a party, the possibility of misleading or confusing the jury, and the possibility of undue delay or waste of time. Cloud v. State, 567 S.W.2d 801, 803 (Tex. Crim. App. [Panel Op.] 1978).
        The probative value of the complainant's alleged past sexual relationship with persons other than appellant to show bias or ill will toward appellant is negligible, and the questioning has an extremely high possibility of embarrassment or harassment. Appellant was allowed to question the complainant concerning her alleged drug involvement and sexual behavior with him and was thus able to probe her motive for testifying against him. We conclude that the trial court did not abuse its discretion in restricting appellant's cross-examination of the complainant. Point of error one is overruled.
        In his second point of error, appellant contends that the trial court erred in restricting his cross-examination on the same matter because it prevented him from enlightening the jury concerning all the facts and circumstances surrounding the commission of the offense. In order to be admissible, evidence must be relevant to a contested issue, and the determination of relevancy lies within the sound discretion of the trial court. Johnson v. State, 698 S.W.2d 154, 160 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871, (1986). Further, relevant evidence may be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex. R. Crim. Evid. 403; Crank v. State, 761 S.W.2d 328, 342 n.5 (Tex. Crim. App. 1988).
        The complainant's past sexual conduct or use of drugs is clearly irrelevant to any contested issue in the case, and to the extent probative, is vastly outweighed by the danger of confusing the issues or misleading the jury. We conclude that the trial court did not abuse its discretion in prohibiting this line of questioning. Further, when questioned for the purposes of appellant's bill of exception, the complainant denied any promiscuity or trading of sexual favors for drugs. While the asking of questions, even when denied, might have some effect for purposes of showing bias or motive, the questions were of no value in explaining all of the facts and circumstances of the offense. Assuming, arguendo, that the trial court erred, we conclude beyond a reasonable doubt, that the error did not contribute to the conviction or the punishment. Tex. R. App. P. 81(b)(2). We overrule point of error two.
        In point of error three, appellant contends that the trial court erred in allowing evidence of the fact that he was on parole and that a parole revocation hearing had been held concerning his parole status. Two witnesses testified concerning the parole revocation hearing. The first witness, Charles Chatman, was called by appellant, apparently to testify concerning the complainant's testimony at the hearing. The following testimony was elicited without objection:
    [By appellant]: Mr. Chatman, are you acquainted with the defendant in this case?
 
    A: Yes, I am.
 
    Q: Mr. Chatman, on September 15th, did you have occasion to be in a hearing concerning this case?
 
    A: Yes. I represented the defendant in a parole revocation hearing.
 
* * *
    [By the prosecutor]: What was the parole revocation hearing being held for?
 
    A: It was being held, I think, with reference to the specific charges that led to the complaint here that this trial is about.
 
    Q: This was a parole revocation hearing?
 
    A: That's correct.
 
    Q: Who was on parole?
 
    A: Mr. Sloan [appellant] was on parole.
 
    Q: For what was he on parole?
 
    A: I do not know. I know I represented him in a parole revocation hearing on these charges . . . .
Another witness testified. Only then, outside the presence of the jury, did appellant object to the testimony concerning the parole hearing. An objection to the introduction of evidence must be urged timely, i.e., at the earliest opportunity. Montelongo v. State, 681 S.W.2d 47, 57 (Tex. Crim. App. 1984); Stevens v. State, 671 S.W.2d 517, 521 (Tex. Crim. App. 1984). Having failed to object to Chatman's testimony at the first opportunity, appellant has waived any error. See Tex. R. App. P. 52(a).
        At the time appellant objected to Chatman's testimony, appellant also made an oral motion in limine asking the court to instruct the State not to elicit any evidence concerning appellant's prior criminal record. The court instructed the State not to inquire into appellant's record unless the defendant should testify or otherwise "open this up." The prosecution informed the trial court that it intended to call Tim Green, a parole officer, to testify concerning the complainant's testimony at the parole revocation hearing. Appellant objected on the grounds urged in his motion in limine, and the court informed appellant that he would allow Green to testify and would "rule on whatever objections are made at that time." Green testified that he was appellant's parole officer and that he conducted a hearing on September 15 at which appellant was the parolee. Appellant did not object to this testimony.
        The granting of a motion in limine will not preserve error; for error to be preserved with regard to the subject matter of the motion in limine it is absolutely necessary that an objection be made at the time when the subject is raised during the trial. Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App.), cert. denied, 472 U.S. 1009 (1985). Having failed to interpose an objection to the complained-of evidence, appellant has waived any error. Thompson v. State, 691 S.W.2d 627, 635 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985). Further, improper admission of evidence does not constitute reversible error if the same facts were proved by evidence not objected to. Montelongo, 681 S.W.2d at 56. Chatman's unobjected-to testimony revealed that appellant was on parole and that a parole revocation hearing was held. We overrule point of error three.         We affirm the judgment of the trial court.
        
                                                  PER CURIAM
Do Not Publish
Tex. R. App. P. 90
        
881418F.U05
 
 
File Date[12-20-89]
File Name[881418F]