Marcaye Keith Duncan v. The State of Texas--Appeal from 82nd District Court of Falls County

NO. 10-90-117-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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MARCAYE KEITH DUNCAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 82nd Judicial District Court

Falls County, Texas

Trial Court # 6037

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O P I N I O N

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Appellant was convicted by a jury and assessed fifteen years in prison for an aggravated assault on a prison guard. He alleges that the court erred in excluding evidence which showed the complaining witness's bias against him because of his race. We overrule the point and affirm the judgment.

Appellant filed a pro se brief containing three points of error. His court-appointed counsel filed a brief asserting the bias point. Appellant is not entitled to hybrid representation. See Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. [Panel Op.] 1981). Therefore, the pro se brief presented nothing for review. See id. In the interest of justice, however, we have considered Appellant's pro se points and they reveal no error. See id.

In an attempt to impeach Danny Krumnow, the complaining witness, Appellant tendered the testimony of Dexter Green, a fellow inmate, to show that Krumnow was biased against Appellant because of his race. The court sustained the State's objection and excluded the testimony. Appellant claims that the testimony should have been allowed under Rule of Criminal Evidence 612(b). See Tex. R. Crim. Evid. 612(b).

The pertinent portion of Green's testimony was as follows:

Q. And do you know what he calls the black prisoners?

A. What he calls them?

Q. Yes.

A. I just heard him say Junior one day.

Q. Okay. And on the particular day that you heard him call someone Junior, what did he do with that particular inmate?

A. (Inaudible.)

Q. I didn't understand what you --

A. He went to line control.

Q. Line control. What happened to cause him to have to go to line control?

A. Because this dude was walking on the wrong side of the sidewalk, and he told him to turn around and go back, and this black dude kept walking, and Krumnow grabbed him like this, and he went to line control, and he called him Junior.

Q. Among the black community, what does Junior mean?

A. I guess its like Toby or something.

Q. In other words, It's --

A. Nigger or something.

Q. In other words, do black people take offense at being called that at the Hobby Unit?

A. I don't want to be called no Junior.

Q. Do you know Officer Krumnow's reputation among the black inmates at the Hobby Unit as far as being prejudiced or biased in any way towards blacks?

A. Ain't too many black folks like him.

Q. Okay. Can you tell us why?

A. He's a red-neck.

Q. And what do you mean by being red-neck?

A. Everybody dislikes him because of the way he treats people.

Q. What is it about his treatment of people that makes you have that opinion?

A. He was -- just if you was doing something wrong, he'd holler, "Hey, boy," and all this junk.

The State argues that Green's testimony was inadmissible because Criminal Evidence Rule 608(b) provides that specific instances of conduct, other than conviction of a crime, may not be inquired into by cross-examination nor proved by extrinsic evidence. See id. at 608(b). We hold, however, that Rule 608(b) does not preclude proof of prior acts of misconduct if they somehow show bias or interest. See Randle v. State, 595 S.W.2d 927, 930-31 (Tex. Crim. App. [Panel Op.] 1978); H. Wendorf & D. Schlueter, Texas Rules of Evidence Manual 248 (2nd ed. 1988).

Nevertheless, we overrule Appellant's point because the trial court has wide discretion in controlling evidence of bias and because the testimony Appellant sought to introduce did not clearly demonstrate that Krumnow was biased. See Cloud v. State, 567 S.W.2d 801, 802 (Tex. Crim. App. [Panel Op.] 1978). Green testified that he heard Krumnow call Appellant "Junior" and that in the "black community," "Junior" means "Toby" or "Nigger." Green never testified that Krumnow called only black people "Junior" or gave facts indicating that Krumnow knew that "Junior" meant "Toby" or "Nigger" or was offensive to black people. He did not testify that any other black person at the Hobby Unit would be offended by being called "Junior." His testimony that "everybody dislikes him because of the way he treats people" is not proof that Krumnow treats blacks any differently than whites. Thus, Appellant has failed to demonstrate that the trial judge abused his discretion in refusing to allow Green's testimony to be presented to the jury. See id. We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed April 25, 1991

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