COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-338-CR
ANTHONY
STEVEN SINGH APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 371ST DISTRICT COURT OF TARRANT COUNTY
OPINION
I. Introduction
A
jury convicted Appellant Anthony Steven Singh of indecency with a child by
contact, and the trial court sentenced him to twenty-five years’
confinement. In two points, Singh complains that the trial court erred by
refusing to allow a State’s witness to be cross-examined concerning her
pending criminal charges and by overruling defense counsel’s objection to a
portion of the prosecutor’s closing argument. We will affirm.
II. Factual
Background
J.B.
is a female minor1 who lives in Seagoville with her
mother and grandparents. She spent most of the day on December 25, 2002
(Christmas Day) at home opening presents, eating, and enjoying the
holiday. Tiffany Nichols, J.B.’s cousin, invited J.B. to spend the night
with her in Arlington. Tiffany lived with her boyfriend, Steve, and his
mother, Linda.
That
night, J.B., Tiffany, Steve, and Linda opened presents, cooked food, and watched
a movie. Linda’s boyfriend, Singh, arrived later in the evening.
J.B. had met Singh on one previous occasion at her aunt’s house during
Thanksgiving. At the conclusion of the movie, Steve escorted Tiffany to an
upstairs bedroom and left J.B. on the couch with the remote to the television;
Linda and Singh had retired to Linda’s bedroom earlier. Wearing sweat
pants, a t-shirt, and underwear, J.B. fell asleep alone on the couch with a
blanket and two couch pillows.
J.B.
awoke the following morning because Singh was kissing her ear, cheek, and lips
and touching her breast, leg, and stomach. Singh touched J.B.’s stomach
under her clothing and her breast and leg over her clothing. Singh stopped
and went to a bedroom only to return and continue this same line of
conduct. Singh attempted to touch J.B.’s breast under her clothing, but
J.B. turned over on her side, crying, and told him to quit. At this point,
Singh told J.B. not to tell anyone, and then he left.
J.B.,
crying, laid on the couch for a while before going upstairs to sleep on a sofa
in the same bedroom where Tiffany and Steve were sleeping. J.B. awoke
later and told Tiffany and Steve what Singh had done. Shocked and
surprised, they informed Linda and then called Singh at work. Singh stated
that he had tried to wake J.B. in order to give her a pillow that had fallen on
the floor.
Tiffany
took J.B. to her mother, who was at work, and J.B.’s mother later took J.B. to
the Arlington Police Department to report the incident. J.B. later gave a
statement and identified Singh from a photo spread. Officers subsequently
arrested Singh.
III. Limited
Cross-Examination
In
his first point, Singh argues that the trial court erred by refusing to allow
defense counsel to cross-examine Tiffany about criminal charges pending against
her in Collin County. The State maintains that the trial court did not abuse its
discretion because there is no evidence in the record that the pending charges
generated bias in favor of the State.
A. Standard of Review
We
review a trial court’s ruling admitting or excluding evidence for an abuse of
discretion. Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App.
1999), cert. denied, 529 U.S. 1102 (2000); Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). Appellate
courts should give great discretion to the trial courts in matters of relevancy,
reversing only if the trial court acts outside “the zone of reasonable
disagreement.” Montgomery, 810 S.W.2d at 391. Thus, so long
as the trial court’s decision to admit or exclude evidence falls in the zone
within which reasonable minds may differ, appellate courts should refrain from
disturbing the trial court’s decision on appeal. Id.; Karnes
v. State, 127 S.W.3d 184, 189 (Tex. App.—Fort Worth 2003, no pet.).
B. No Evidence of Bias
The
following exchange took place between Tiffany and defense counsel outside the
presence of the jury:
[Defense counsel]: Well, what - - what I’m asking is, do you know whether or
not these two prosecutors or anybody in this DA’s office here has made any
contact - -
[Tiffany]:
With the ones in Collin County.
[Defense
counsel]: To maybe help you out on your case just a little bit.
[Tiffany]:
No.
[Defense
counsel]: You don’t know if that’s happened or hasn’t happened?
[Defense
counsel]: Okay
[Tiffany]:
I mean, I - - I don’t know if it’s happened, but I’m pretty sure that it
hasn’t.
[Defense
counsel]: Okay.
[Tiffany]:
Or else my lawyer would say something to me about it.
[Defense
counsel]: Okay. Would you like for that to happen?
[Defense
counsel]: You don’t want them to call the Collin County DA’s office to say,
“Hey, she testified. Won’t you help her out a little bit”?
[Defense
counsel]: Why not?
[Tiffany]:
Because that’s my problem, and that’s what I got in trouble for, so I have
to - - I don’t want other people to give bribes to my lawyer for it.
[Defense
counsel]: All right. All right. What if - - what if your lawyer tells you,
“Hey, they want you to spend two years in the Collin County jail”?
[Tiffany]:
Well, then that’s what I’m going to have to do.
Later,
the prosecutor stated,
[Prosecutor]:
There’s one thing I want to let the appellate attorneys know, though, so that
they can argue this.
The
State has had no communication with Collin County. I have not, nor has anyone in
our office.
The
Court: All right.
[Prosecutor]:
And we’ve had no communication with this person’s - - this witness’
defense attorney either, nor have we made her any offers or suggested in any way
that we would.
I
told her, when we were talking, specifically, that I could not talk to her about
the facts of this case.
[Prosecutor]:
And that I would not do it, and that she was to notify her defense attorney that
I would not be doing that.
In
order to impeach a witness with evidence of pending criminal actions, the
proponent of the evidence must show that the evidence is relevant. Woods
v. State, 152 S.W.3d 105, 111 (Tex. Crim. App. 2004). This is done by
demonstrating that a nexus, or logical connection, exists between the pending
charges and the witness’s potential motive or bias for the State, or testimony
at trial. Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App.
1998). Here, there was no indication that Tiffany expected to be rewarded
for testimony favorable to the State or punished for testimony that was
unfavorable to the State. Singh did not establish a nexus between
Tiffany’s testimony and the charges pending against her in Collin
County. See Woods, 152 S.W.3d at 112. Thus, we hold that the
trial court did not abuse its discretion by prohibiting Singh from
cross-examining Tiffany concerning the unrelated charges pending against her in
Collin County.
Singh
also argues that the trial court’s refusal to permit him to cross examine
Tiffany about the Collin County charges pending against her violated his Sixth
Amendment Confrontation Clause rights. Cross-examination may be limited,
however, without running afoul of the Confrontation Clause if it is not
calculated to reveal bias or motive to testify falsely. See Carroll v.
State, 916 S.W.2d 494, 497-98 (Tex. Crim. App. 1996); Delamora v. State,
128 S.W.3d 344, 365 (Tex. App.—Austin 2004, pet. ref’d); Stevenson v.
State, 997 S.W.2d 766, 768 (Tex. App.—Houston [1st Dist.] 1999, pet.
ref’d). The Confrontation Clause does not prohibit a trial judge from
imposing any limits on defense counsel's inquiry into the potential bias of a
prosecution witness. Delamora, 128 S.W.3d at 365. Here, the
cautious trial court permitted defense counsel to cross-examine Tiffany outside
the jury’s presence and concluded that any cross examination concerning the
pending charges in Collin County was not relevant to establishing a motive or
bias by Tiffany in testifying favorably to the State and against Singh. We
hold that the trial court’s refusal to permit Singh to cross examine Tiffany
regarding the charges pending against her in Collin County did not constitute an
impermissible restriction of Singh’s rights under the Confrontation
Clause. We overrule Singh’s first point.
IV. Improper
Closing Argument
In
his second point, Singh complains that the trial court erred by overruling his
objection to a portion of the State’s closing argument. The purpose of
closing argument is to facilitate the jury’s proper analysis of the evidence
presented at trial in order to arrive at a just and reasonable conclusion based
solely on the evidence. Barnes v. State, 70 S.W.3d 294, 308 (Tex.
App.—Fort Worth 2002, pet. ref'd). To be permissible, the State’s jury
argument must fall within one of the following four general areas: (1) summation
of the evidence, (2) reasonable deduction from the evidence, (3) answer to
argument of opposing counsel, or (4) plea for law enforcement. Felder
v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992), cert. denied,
510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim.
App. 1973).
The
State is entitled to comment on the accused’s failure to produce testimony
from sources other than himself when it is relevant to a disputed issue. Patrick
v. State, 906 S.W.2d 481, 490 (Tex. Crim. App. 1995), cert. denied,
517 U.S. 1106 (1996). A prosecutor’s comment about the subpoena power of
the defendant is proper if it refers to the defendant’s failure to produce
evidence from other sources. Harris v. State, 122 S.W.3d 871, 884
(Tex. App.—Fort Worth 2003, pet. ref’d). Thus, a prosecutor’s
comment is improper only if it points to the absence of evidence that could be
supplied only by the defendant’s testimony. Fuentes v. State, 991
S.W.2d 267, 275 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999); Harris,
122 S.W.3d at 884.
The
following exchanges took place during the State’s closing argument:
[Prosecutor]: Do you have any evidence whatsoever that this child is such a bad
person, such an evil person, that she’s made false accusations before, that
she’s a bad or nasty person who would make up something like this knowing the
consequences? She’s 15. She’s old enough to know about going to
the penitentiary. Any suggestion in her past or background that she is
such a poorly brought-up human being that she would do such a thing?
Didn’t hear anything, did you? Why? Because it’s not there.
[Defense
counsel]: Excuse me, Judge. I’m going to object. She’s outside
the record.
[Prosecutor]:
Defense counsel --
The
Court: All right. Counsel, argue within the --
[Defense
counsel]: I’d like a ruling on my objection, please.
The
Court: Counsel, argue within the record.
[Defense
counsel]: I’d ask that the jury be instructed to disregard the comment of the
prosecutor.
The
Court: All right. Jury will so disregard the comment.
[Defense
counsel]: And with all due respect, Judge, I don’t believe your instructions
can cure the error, and I’m asking for a mistrial.
The
Court: Denied.
[Defense
counsel]: Thank you.
[Prosecutor]:
The defense has an opportunity – they have a subpoena power equal to the
State. If they want to bring witnesses in, they may --
[Defense
counsel]: Judge, I’m going to object again. She’s going right back
into what you just told her not to do. I object to it.
[Prosecutor]:
No, that’s --
The
Court: Overruled. Let’s move along.
[Prosecutor]:
If there are witnesses from the school, from the neighborhood, anywhere, that
had a bad word to say about her, you --
[Defense
counsel]: Judge, she’s outside the record. She knows that I can’t do
that. And she’s --
[Prosecutor]:
Objection, Your Honor. That’s a misstatement. That’s the
absolute truth that he could do that.
The
Court: All right. Counsel, argue within the record. Let’s move
along.
[Defense
counsel]: Would you instruct the jury, please, to disregard the comment of the
prosecutor.
The
Court: Jury will disregard any of the prosecutor’s comments that were outside
the record. Further, the jury will recall the evidence.2
The
prosecutor’s comment was not improper because, in referencing the defense’s
subpoena power, the prosecutor pointed to the absence of testimony from sources
other than Singh, specifically, witnesses from J.B.’s “school,”
“neighborhood,” or “anywhere.” See Harris, 122 S.W.3d at
884. We hold that the trial court did not err by overruling Singh’s
objection to this argument. We overrule Singh’s second point.
V. Conclusion
Having
overruled both of Singh’s points, we affirm the trial court’s judgment.
SUE
WALKER
JUSTICE
PANEL
A: CAYCE, C.J.; GARDNER and WALKER, JJ.
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
June 30, 2005
NOTES
1.
At the time of the offense J.B. was fourteen years old.
2.
Defense counsel asserted three objections to the prosecutor’s argument.
However, in his brief, he argues that the trial court erred by overruling his
“objection,” and he does not state in his brief exactly which portion of the
prosecutor’s argument he is contesting on appeal. We therefore construe
Singh’s argument as challenging the trial court’s decision overruling his
objection to the prosecutor’s comment concerning the defense subpoena power
because it is the only objection that the trial court expressly ruled on.