SHAWN MAURICE McCRORY, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed May 30, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01163-CR
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SHAWN MAURICE McCRORY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from County Court Law No. 4
Collin County, Texas
Trial Court Cause No. 004-88490-04
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OPINION
Before Chief Justice Thomas and Justices O'Neill and Maloney   See Footnote 1 
Opinion By Justice Maloney
        The jury convicted Shawn Maurice McCrory of one count of family violence assault   See Footnote 2  and the trial court assessed a ninety-day sentence and a $1000 fine, suspended the ninety-day sentence, and placed appellant on a twelve month community supervision. In one point of error, appellant complains the trial court erred in not allowing appellant to impeach the complainant with evidence of her assault against appellant. We affirm the trial court's judgment.
BACKGROUND
 
        The complainant and the appellant had a turbulent marriage. Earlier, the complainant had filed assault charges against appellant, but then filed an affidavit of non-prosecution in May 2004. Apparently, the State dismissed appellant's pending assault on receiving her affidavit.
        On December 24, 2004, the complainant was in the kitchen preparing food for a family Christmas gathering and wanted appellant to help with the cooking. The complainant testified that appellant was drinking and complaining about the money she was costing him by his having to pay his attorney and her not working. The confrontation that ensued resulted in the filing of the instant case.
        The complainant testified that appellant came home from work, made several telephone calls, and began drinking. When he drank, he would rant and rave. On the night in question, appellant came around the corner of the kitchen island, grabbed her by her shirt, and threw her to the ground. He left the kitchen only to return fifteen or twenty minutes later, saying he was sorry. When she brushed off his apologies, he became angry, “slung” her into the pantry, “and kept banging her head against the door wall and kept choking [her].” She grabbed the telephone and called 911, but appellant jerked the cordless telephone from her hand and turned the telephone off. Appellant began pushing the antenna against his throat.
        In contrast, appellant described events as the complainant attacking him with a butcher knife and trying to cut his throat. He claimed she had violent temper and was the aggressor while he merely defended himself.
        The police responded to the 911 call and talked to appellant and the complainant separately. After speaking with both parties, observing the broken furniture, the disarray in the pantry, and the complainant's appearance, they arrested appellant. In spite of the events on the previous night, the complainant drove appellant home from jail. The following day, they drove to Crested Butte for a short vacation.
        The complainant professed her love for appellant and blamed his violence on his drinking. Appellant, as best he could remember, was not drinking on the night in question. He did admit that the Board of Pharmacy required him to get alcohol abuse counseling to retain his employment as a pharmacist. It is unclear how long he remained in counseling. The couple divorced in July 2005. In spite of their difficulties, they continued to see each other until June 2006.
RIGHT TO CROSS EXAMINE WITNESSES
 
        In one point of error, appellant maintains the trial court erred in restricting his cross- examining of the complaining witness. Specifically, he argues that the trial court should have allowed him to impeach the complaining witness with a “pending assault” in which her vehicle struck appellant.
        The State responds that appellant's proffer of the excluded testimony did not “demonstrate a nexus between the [complainant]'s alleged [sic] assault against [appellant]” and the complaining witness's bias or motive to testify at trial. Additionally, the State contends “there was no pending criminal case against the victim that rendered her vulnerable to the State.” And the assault, if any, occurred months after the instant case.
 
1. Standard of Review
 
        We review the trial court's excluding evidence for an abuse of discretion and do “not reverse its ruling unless it falls outside the zone of reasonable disagreement.” Crenshaw v. State, 125 S.W.3d 651, 654 (Tex. App.-Houston [1st Dist.] 2003, pet.ref'd) (citing Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)). The examining party bears the burden of demonstrating the relevance of the proffered evidence. See Chambers v. State, 866 S.W.2d 9, 26-27 (Tex. Crim. App. 1993).
2. Applicable Law
 
        Texas does not permit a litigant to attack a witnesses's credibility by inquiring into specific instances of misconduct either on cross-examination or by extrinsic evidence unless rule 609 provides an exception. Tex. R. Evid. 608(b). Rule 609 prohibits admitting unadjudicated crimes to show bad character for truthfulness. See Moreno v. State, 22 S.W.3d 482, 485-86 (Tex. Crim. App. 1999); see also Tex. R. Evid. 609(b). However, Texas permits a party to cross-examine a witness on an unadjudicated offense to show bias because of vulnerability to the prosecution, not to discredit the witness. Maxwell v. State, 48 S.W.3d 196, 200 (Tex. Crim. App. 2001) (citing Alford v. U.S., 282 U.S. 687, 693 (1931)). Additionally, a party may cross-examine a witness about pending criminal charges to demonstrate any possible bias or interest that she “may hold to testify on the State's behalf.” Maxwell, 48 S.W.3d at 199 (citing Carroll v. State, 916 S.W.2d 494, 500 (Tex. Crim. App. 1996)).
 
3. Application of Law to Facts
 
        Appellant complains of the trial court's refusing to allow appellant to impeach the complainant on an unfiled, unadjudicated aggravated assault against appellant that occurred on June 3, 2006-some eighteen months after this offense occurred. He attempts to avoid rule 609(b) by use of an exception that does not apply.
        Appellant's proffer of proof showed that a Detective Diana Tilton would testify that she is investigating an incident wherein the complainant's automobile struck appellant and injured him. This proffer did not demonstrate the complainant's possible motive, bias, or interest in testifying for the State. Rather, it sought to inquire into a specific instance of conduct to attack complainant's credibility. Additionally, on appeal, appellant only argues that he wanted to show the complainant's bad character for untruthfulness. He does not argue that his cross-examining the complainant or Tilton's testifying to a pending investigation would show complainant's bias or interest in helping the State.
        This offense occurred on December 24, 2004. The State filed its case against appellant on March 8, 2005. Nothing in the record shows that the complainant's trial testimony differed from her statements given to the police on the night the assault occurred. The arresting officer's trial testimony confirmed her version of the altercation, her injuries, and appellant's smelling of alcohol. Although the trial in this case did not begin until July 2006, we fail to see how the June 2006 incident could show the complainant's bias because of vulnerability to the prosecution.
        We affirm the trial court's judgment.
 
 
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
 
Footnote 1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Although appellant was charged with two counts of family assault, the jury found appellant not guilty of the January 18, 2005 charge.