Means, Frederick Donnell v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmed and Memorandum Opinion filed December 30, 2004

Affirmed and Memorandum Opinion filed December 30, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01160-CR

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 FREDERICK DONNELL MEANS, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 946726

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M E M O R A N D U M O P I N I O N

Appellant Frederick Donnell Means appeals his conviction for arson. Appellant asserts the trial court violated his Sixth Amendment right of confrontation by (1) improperly limiting his cross-examination of the State=s main witness, and (2) improperly preventing him from developing evidence that would have established bias on the part of that witness towards appellant. We affirm.

I. Factual and Procedural Background

In March of 2003, appellant lived with Shirley Moore. Also living with them were Moore=s two sons, her grandmother, Mammie White, and her father, Thomas Keeling. At that time, Moore was three months behind on her car payments. Around mid-March, Moore asked her father if he would wreck her sport utility vehicle (ASUV@) or knew someone who would do so. She also asked her father=s estranged wife, Jacqueline Keeling, if she knew anyone who would wreck her SUV because Moore was behind on the payments.

On the evening of March 21, Thomas Keeling borrowed his daughter=s SUV to take White on an errand. He parked the SUV outside of the garage when they returned home. Later that evening, appellant=s brother called appellant and appellant left Moore=s house. About an hour later, Thomas Keeling heard the garage door open. Shortly thereafter, he went out to the garage to get White=s coin purse from the SUV. Moore=s SUV was in the garage and appellant=s brother was straddling the seat with the SUV=s radio in his hands. Thomas Keeling testified that, in his opinion, the SUV was being Astripped.@ When he returned to the house, Thomas Keeling told White what he had seen. Later, he heard the two vehicles drive off and saw that both appellant=s vehicle, an older-model, light-colored pickup truck, and Moore=s SUV were gone.

Around 1:00 a.m. on March 22, 2003, Moore=s SUV was discovered abandoned under an overpass and aflame. After the fire was extinguished, Captain J.R. Garza of the Houston Fire Department noticed the radio was missing. Because of the time of day, the place the SUV was found, and the fact that it was abandoned, Garza notified Houston Fire Department arson investigators. Based on his observations, arson investigator Raymond Parrish concluded that the fire was a result of arson. Parrish interviewed one witness at the scene, Mr. Fritz, a homeless man living under the overpass. He told Parrish that he saw an older-model, white pickup truck and an SUV pull up under the overpass. Three people got out of the vehicles and milled around for awhile before the SUV burst into flames. The three people left the scene in the pickup truck. Mr. Fritz, however, was unable to describe any of them.

Thomas Keeling heard and saw appellant return home around 2:30 a.m. Jacqueline Means, appellant=s mother, testified that appellant was at her house around the same time, dropping off his brother. Appellant claimed they had been partying at a nightclub.

On the morning of March 22, 2003, Moore came into her father=s room and told him that her SUV had been stolen. Moore waited until later that morning to make a police report. At that time, she learned that the police already had recovered her vehicle. Later that day, Thomas Keeling saw the SUV=s radio and spare tire in Moore=s garage. A few days later, Thomas Keeling called Moore=s insurance carrier and talked to an investigator. He explained that his daughter=s SUV had been Atorched,@ but that she was not at fault. Thomas Keeling then called arson investigators and gave a statement implicating appellant. Thomas Keeling received $500 for the tip. Following Thomas Keeling=s statement, Houston arson investigator Alfredo Martinez inspected the burned SUV and observed that the spare tire and radio were missing and had not been in the SUV at the time of the fire. Arson investigator Robert Koryciak searched appellant=s vehicle and found two gas cans and two spare tires in the back of appellant=s truck. Martinez determined that one of the tires was of the same size and type that would be found in an SUV like the one reportedly stolen from Moore.

At trial, Moore testified that she had long-standing financial problems and was having trouble making her SUV payments in March of 2003. She denied asking her father to wreck her SUV and claimed that she never told Jacqueline Keeling that she wanted someone to wreck her vehicle. Moore testified that she never saw appellant=s brother at her house that evening. According to Moore, appellant left her house around 11:00 p.m. to pick up his brother and to go to a nightclub. Moore explained that her spare tire was in appellant=s truck because he had fixed a slow leak on one of her tires. White testified that she never heard Moore ask Thomas Keeling to wreck her SUV and that Thomas Keeling never told her that appellant and his brother were stripping Moore=s vehicle. Jacqueline Keeling testified that Moore told her on March 22nd that her SUV had been stolen. About a week later, Moore told Jacqueline Keeling that she and her father had argued and that he intended to tell the police that appellant burned the SUV, but she intended to tell the police that her father had done it.

Appellant was charged by indictment with arson. Appellant pleaded not guilty. A jury found appellant guilty and assessed punishment at 45 years in the Institutional Division of the Texas Department of Criminal Justice.

II. Issues and Analysis

 A. Did the trial court improperly limit appellant=s cross-examination of the State=s main witness?

In his first issue, appellant asserts the trial court violated his Sixth Amendment right of confrontation by limiting his cross-examination of Thomas Keeling, the State=s main witness. Appellant contends that the trial court improperly prevented him from cross-examining Thomas Keeling about an allegedly false prior accusation he had made against appellant to Children=s Protective Services (hereinafter ACPS@). Appellant argues that such cross-examination was proper under Texas Rule of Evidence 613(b) because it would have established bias against appellant on the part of Thomas Keeling. The State contends that appellant did not preserve this issue for review. We agree that appellant failed to preserve any error with respect to his Sixth Amendment claim, but find that appellant did preserve his complaint with respect to his argument under Rule 613(b).

Generally, to preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint. Tex. R. App. P. 33.1(a); see Saldano v. State, 70 S.W.3d 873, 886B87 (Tex. Crim. App. 2002). As noted above, even constitutional complaints may be waived by the failure to raise a timely objection in the trial court. See Saldano, 70 S.W.3d at 886B89. The record reflects that appellant did not specifically assert deprivation of his right of confrontation in the trial court, and thus failed to preserve this complaint for appellate review. See Holland v. State, 802 S.W.2d 696, 699B700 (Tex. Crim. App. 1991). Because appellant failed to assert Confrontation Clause error in the trial court with respect to the trial court=s limitation on his cross-examination of Thomas Keeling, he has waived any complaint based on this claim. See Jenkins v. State, 912 S.W.2d 793, 815 (Tex. Crim. App. 1993).

Appellant, however, did preserve his Rule 613(b) issue for appellate review. Specific instances of conduct are admissible for the purpose of attacking a witness=s trustworthiness in a particular case because of bias or interest. See Tex. R. Evid. 613(b). On cross-examination, appellant wanted to demonstrate that Thomas Keeling was biased against him because Thomas Keeling previously had filed a CPS report against appellant. The State lodged an objection, which the trial court sustained. In his bill of exception, appellant stated:

One of the things I want[ed] to go into was allegations against my client made by Mr. Keeling to CPS. I think it=s relevant because it=s going to the witness= [sic] bias and motive in this case. . . . Before this incident occurred, Mr. Keeling had gone to CPS and made allegations and CPS investigated and closed the case, basically, saying there was nothing to support anything they had been told by him. Again, it goes to credibility. I feel it=s relevant.

The record reflects that appellant=s counsel wanted to question Thomas Keeling about the CPS report in an effort to establish bias and motive and that the trial court prevented that questioning. Appellant argued that the testimony was admissible to show bias and motive towards appellant.

We review a trial court=s decision to exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101B02 (Tex. Crim. App. 1996). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles. See Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). Great latitude should be allowed in cross-examining a witness to reveal possible bias, prejudice, or self-interested motives to falsify testimony. Chambers v. State, 866 S.W.2d 9, 26 (Tex. Crim. App. 1993). The burden of showing the relevance of particular evidence to the issue of bias rests on its proponent. Id. at 26B27. A specific connection between the witness=s testimony and the cause, demonstrating an actual bias or motive, must be established. Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995). The limits of cross-examination for the showing of bias are within the trial court=s sound discretion. Chambers, 866 S.W.2d at 27. This entails balancing probative value against prejudicial risks, such as undue prejudice, embarrassment, harassment, confusion of the issues, and undue delay. Id.

After reviewing the record, we conclude the trial court did not abuse its discretion. Appellant argues on appeal that the CPS report made by Thomas Keeling contained false allegations against appellant. He contends that those allegations are evidence of bias against appellant, which might have caused Thomas Keeling to slant his testimony in the present case. The allegations in question, however, were never shown to be false. In his bill of exceptions, appellant asserts only that CPS closed the case because there was no evidence to support Thomas Keeling=s allegations, not because the allegations were untrue. Appellant failed to present sufficient facts to support his contention that Thomas Keeling=s CPS allegations could relate to bias or motive by Thomas Keeling to testify untruthfully against appellant. The trial court acted within its discretion when it prevented appellant from cross-examining Thomas Keeling about the CPS report. Accordingly, we overrule appellant=s first issue.

 B. Did the trial court improperly prevent appellant from developing evidence through the testimony of other witnesses that would have established bias on the part of the State=s main witness?

In his second issue, appellant argues that the trial court violated his Sixth Amendment right of confrontation by improperly preventing him from developing evidence that was admissible under Rule 613(b) and would have established bias on the part of Thomas Keeling toward appellant. Specifically, appellant complains the trial court erred by (1) restricting his cross-examination of Jacqueline Keeling concerning Thomas Keeling=s strained relationship with Moore and appellant, and (2) limiting his direct examination of White and Moore concerning Thomas Keeling=s responsibilities as a resident in Moore=s home. Because the record reveals that appellant failed to preserve any error on Sixth Amendment grounds and failed to preserve any error with respect to the excluded testimony, we need not reach the merits of his complaint on appeal.

Generally, to preserve a complaint for appellate review, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint. Tex. R. App. P. 33.1(a); see Saldano v. State, 70 S.W.3d 873, 886B87 (Tex. Crim. App. 2002). With few exceptions not applicable here, even constitutional complaints may be waived by the failure to raise a timely objection in the trial court. See Saldano, 70 S.W.3d at 886B89. The record reflects appellant failed to preserve his Sixth Amendment claim because he did not specifically assert deprivation of his right of confrontation in the trial court. See Holland v. State, 802 S.W.2d 696, 699B700 (Tex. Crim. App. 1991). Appellant failed to assert any Confrontation Clause error in the trial court with respect to the trial court=s limitation on his questioning of Jacqueline Keeling, White, and Moore. Therefore, he has waived appellate review of this claim. See Jenkins v. State, 912 S.W.2d 793, 815 (Tex. Crim. App. 1993).

Appellant asserts that the trial court improperly prevented him from developing evidence admissible under Rule 613(b) that would have established bias on the part of Thomas Keeling toward appellant. In addition to his direct examination of White and Moore, appellant attempted to question Jacqueline Keeling about the relationship between Thomas Keeling and Moore. The trial court sustained the State=s objection on relevancy grounds. On appeal, appellant contends that the excluded testimony of Jacqueline Keeling, White, and Moore would have demonstrated bias and ill-will toward appellant on the part of Thomas Keeling and was admissible under Rule 613(b). However, the record reveals appellant failed to preserve any error with respect to the excluded testimony of these three witnesses.

Error in the exclusion of evidence may not be asserted on appeal unless the proponent perfected an offer of proof or a bill of exceptions. See Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). Absent a showing of what such testimony would have been, or an offer of a statement concerning what the excluded evidence would have shown, nothing is preserved for appellate review. See Guidry, 9 S.W.3d at 153. The record in this case does not indicate what the excluded testimony would have been. Appellant did not make or request the opportunity to make an offer of proof of his intended cross-examination of Jacqueline Keeling or of his intended direct examination of White and Moore. Therefore, appellant did not preserve error as to his second issue, and we need not reach its merits. Accordingly, we overrule appellant=s second issue.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed December 30, 2004.

Panel consists of Justices Anderson, Fowler, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).