OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
ONION, Presiding Judge.
Appellant was convicted of unlawful delivery of marihuana of less than two hundred pounds but more than fifty pounds. After being found guilty by the jury the court assessed punishment at five (5) years’ imprisonment.
On appeal, the appellant, inter alia, posed one point of error in the form of a question. “Did the trial court infringe upon appellant’s constitutional right of confrontation by exercising its discretion to restrict appellant’s opportunity to cross-examine the main witness as to the witness’s background, bias, and prejudice?”
The Court of Appeals viewed appellant’s complaint as directed to the trial court’s ruling on the State’s motion in limine that the appellant was not to inquire into the witness Torino’s aliases prior to January 1982 or after March 1983. The Court of Appeals found that Torino had been “copiously cross-examined” and his “bias and prejudice in the matter became patently obvious,” that the witness had had threats made upon his life, and the trial court was careful in holding prohibition against cross-examination to a minimum to protect the witness, who was then under the Federal Witness Protection Program. The Court of Appeals overruled both of appellant’s contentions and affirmed the conviction in an unpublished opinion. Castle v. State (Tex. App.-El Paso, No. 08-84-00321-CR—1986).
In his petition for discretionary review appellant’s sole ground of review is “The Trial Court erred and infringed upon Petitioner’s Constitutionally protected right of confrontation by exercising its discretion to restrict Petitioner’s opportunity to cross-examine the prosecution’s main witness as to the witness’s background, bias, and prejudice.”
In his petition the appellant noted the Court of Appeals held that the trial court “properly balanced the probative value of the evidence sought to be introduced against the risk its admission might entail,” but claimed the Court of Appeals erred in basing this decision on the premise that there was ample evidence in the record to reflect a clear danger to the witness when “this case is totally devoid of any evidence that there was any present danger to Torino.” We granted appellant’s petition to determine the correctness of the Court of Appeals’ opinion.
At the hearing on the State’s motion in limine, John Torino, upon questioning by defense counsel,1 stated that was his true name, and that between January 1982 when he came to El Paso through March of 1983 he did not use any alias, though his nickname was “Gino” not “Juan,” that he had no arrest record or convictions under his own name or any other name. He also gave his birth date. It was revealed that at the time of the hearing (August 1984) he was a ward of the Federal Witness Protection Program because of death threats and two attempted “hits” upon his life as a result of other cases. He did admit that in the past he had used the alias of John Wayne Lavender but not John Macintosh. A district attorney’s investigator, Andrew Wilson, testified he checked the records of the El Paso Police Department and found no arrest or conviction records for John Torino or for a Juan Torino, or a Gino or Jeno Torino. The records were also negative for the names of John Wayne Lavender and Robert Macintosh.2 He also went to the Sheriff’s office and checked on those names “through the NCIC and TCIC” and “everything came back negative.” At the [232]*232conclusion of the hearing on the motion in limine the court ruled only that the appellant could not, at any time, go into the aliases of Torino prior to January 1982 or after March 1983 when he entered the Federal Witness Protection Program. All other rulings sought by the State in its motion were denied and left to be raised during trial.
At the trial on the merits Torino was exhaustively cross-examined about the facts of the alleged offense. Further it was established on cross-examination that Torino was a former law enforcement officer with a police department although he didn’t finish “the academy,” that in 1979 he began to work with the DEA and FBI on cases, and at that time he was no longer a police officer. He worked on narcotic, organized crime and auto theft cases. Torino related he was paid for some cases, but there was no set fee or hourly rate. His work with the DEA and FBI was full-time but it was not his total means of support.
Torino related that he came to El Paso in December 1981 because he liked the place. His family was not from El Paso. At the time there were some pending cases on which he had worked but none in the El Paso area. He was not then being paid. He began working in El Paso at “The Place,” a bar and lounge, as manager at $250.00 a week, and several months later he worked at the Barrell House Liquor Store for $200.00 a week. He gave the location of two El Paso apartments he lived in during 1982, the monthly rent for the first apartment and described the 1979 Trans Am automobile that he drove during 1982. Torino, in response to appellant’s or co-defendant’s questions, also stated that he married in July 1982 and that he had no children by the marriage. He also related the amount of his income for 1982 upon cross-examination.
Torino testified that in February 1982 he began working again with the DEA and FBI; that about June while working on federal cases “we got involved with the El Paso Police Department” and that he helped Officer Estrada on a case. Thereafter in June or July he worked with the said police department under Estrada’s directions as well as with the DEA and the FBI; that from June to December 1982, he worked on four or five cases for the El Paso Police Department and on about 12 other cases outside of El Paso. He testified in court when that became necessary in all the cases he worked on.
Torino, who testified about the instant unlawful delivery of marihuana case and his work for the police in connection therewith, stated he received $500.00 for his work on the case a day or two after the arrest, that he didn’t know in advance how much he would get and he would get no more in the event of a conviction. He further testified about federal procedures in paying for cases and in making buys. He told the jury, upon cross-examination, that he had been under the Federal Witness Protection Program since March 1983.3 During the cross-examination appellant’s counsel referred to Torino as the “federal snitch” and “a professional witness.” And it appears that all the State’s objections on cross-examination on the issue were overruled or withdrawn or no ruling was obtained. At no time during the cross-examination of Torino by appellant or his co-defendant Jarrell did the court move to restrict the cross-examination. The defense did inquire into some of Torino’s background prior to January 1982. If appellant felt his cross-examination was being unduly restricted, he requested no relief from the limited ruling on the preliminary ruling on the motion in limine.
In his brief supporting his ground of review appellant argues he was prohibited from cross-examining Torino “concerning his previous occupation, his participation as an informant in the Federal Witness Protection Program; the fact that he was a [233]*233professional witness for law enforcement agencies in drug cases; and whether or not he had a financial interest in the outcome of appellant’s trial.”
As can be seen, the record clearly contradicts appellant’s argument.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
ONION, Presiding Judge.
Appellant was convicted of unlawful delivery of marihuana of less than two hundred pounds but more than fifty pounds. After being found guilty by the jury the court assessed punishment at five (5) years’ imprisonment.
On appeal, the appellant, inter alia, posed one point of error in the form of a question. “Did the trial court infringe upon appellant’s constitutional right of confrontation by exercising its discretion to restrict appellant’s opportunity to cross-examine the main witness as to the witness’s background, bias, and prejudice?”
The Court of Appeals viewed appellant’s complaint as directed to the trial court’s ruling on the State’s motion in limine that the appellant was not to inquire into the witness Torino’s aliases prior to January 1982 or after March 1983. The Court of Appeals found that Torino had been “copiously cross-examined” and his “bias and prejudice in the matter became patently obvious,” that the witness had had threats made upon his life, and the trial court was careful in holding prohibition against cross-examination to a minimum to protect the witness, who was then under the Federal Witness Protection Program. The Court of Appeals overruled both of appellant’s contentions and affirmed the conviction in an unpublished opinion. Castle v. State (Tex. App.-El Paso, No. 08-84-00321-CR—1986).
In his petition for discretionary review appellant’s sole ground of review is “The Trial Court erred and infringed upon Petitioner’s Constitutionally protected right of confrontation by exercising its discretion to restrict Petitioner’s opportunity to cross-examine the prosecution’s main witness as to the witness’s background, bias, and prejudice.”
In his petition the appellant noted the Court of Appeals held that the trial court “properly balanced the probative value of the evidence sought to be introduced against the risk its admission might entail,” but claimed the Court of Appeals erred in basing this decision on the premise that there was ample evidence in the record to reflect a clear danger to the witness when “this case is totally devoid of any evidence that there was any present danger to Torino.” We granted appellant’s petition to determine the correctness of the Court of Appeals’ opinion.
At the hearing on the State’s motion in limine, John Torino, upon questioning by defense counsel,1 stated that was his true name, and that between January 1982 when he came to El Paso through March of 1983 he did not use any alias, though his nickname was “Gino” not “Juan,” that he had no arrest record or convictions under his own name or any other name. He also gave his birth date. It was revealed that at the time of the hearing (August 1984) he was a ward of the Federal Witness Protection Program because of death threats and two attempted “hits” upon his life as a result of other cases. He did admit that in the past he had used the alias of John Wayne Lavender but not John Macintosh. A district attorney’s investigator, Andrew Wilson, testified he checked the records of the El Paso Police Department and found no arrest or conviction records for John Torino or for a Juan Torino, or a Gino or Jeno Torino. The records were also negative for the names of John Wayne Lavender and Robert Macintosh.2 He also went to the Sheriff’s office and checked on those names “through the NCIC and TCIC” and “everything came back negative.” At the [232]*232conclusion of the hearing on the motion in limine the court ruled only that the appellant could not, at any time, go into the aliases of Torino prior to January 1982 or after March 1983 when he entered the Federal Witness Protection Program. All other rulings sought by the State in its motion were denied and left to be raised during trial.
At the trial on the merits Torino was exhaustively cross-examined about the facts of the alleged offense. Further it was established on cross-examination that Torino was a former law enforcement officer with a police department although he didn’t finish “the academy,” that in 1979 he began to work with the DEA and FBI on cases, and at that time he was no longer a police officer. He worked on narcotic, organized crime and auto theft cases. Torino related he was paid for some cases, but there was no set fee or hourly rate. His work with the DEA and FBI was full-time but it was not his total means of support.
Torino related that he came to El Paso in December 1981 because he liked the place. His family was not from El Paso. At the time there were some pending cases on which he had worked but none in the El Paso area. He was not then being paid. He began working in El Paso at “The Place,” a bar and lounge, as manager at $250.00 a week, and several months later he worked at the Barrell House Liquor Store for $200.00 a week. He gave the location of two El Paso apartments he lived in during 1982, the monthly rent for the first apartment and described the 1979 Trans Am automobile that he drove during 1982. Torino, in response to appellant’s or co-defendant’s questions, also stated that he married in July 1982 and that he had no children by the marriage. He also related the amount of his income for 1982 upon cross-examination.
Torino testified that in February 1982 he began working again with the DEA and FBI; that about June while working on federal cases “we got involved with the El Paso Police Department” and that he helped Officer Estrada on a case. Thereafter in June or July he worked with the said police department under Estrada’s directions as well as with the DEA and the FBI; that from June to December 1982, he worked on four or five cases for the El Paso Police Department and on about 12 other cases outside of El Paso. He testified in court when that became necessary in all the cases he worked on.
Torino, who testified about the instant unlawful delivery of marihuana case and his work for the police in connection therewith, stated he received $500.00 for his work on the case a day or two after the arrest, that he didn’t know in advance how much he would get and he would get no more in the event of a conviction. He further testified about federal procedures in paying for cases and in making buys. He told the jury, upon cross-examination, that he had been under the Federal Witness Protection Program since March 1983.3 During the cross-examination appellant’s counsel referred to Torino as the “federal snitch” and “a professional witness.” And it appears that all the State’s objections on cross-examination on the issue were overruled or withdrawn or no ruling was obtained. At no time during the cross-examination of Torino by appellant or his co-defendant Jarrell did the court move to restrict the cross-examination. The defense did inquire into some of Torino’s background prior to January 1982. If appellant felt his cross-examination was being unduly restricted, he requested no relief from the limited ruling on the preliminary ruling on the motion in limine.
In his brief supporting his ground of review appellant argues he was prohibited from cross-examining Torino “concerning his previous occupation, his participation as an informant in the Federal Witness Protection Program; the fact that he was a [233]*233professional witness for law enforcement agencies in drug cases; and whether or not he had a financial interest in the outcome of appellant’s trial.”
As can be seen, the record clearly contradicts appellant’s argument. He does not direct our attention where any such prohibition occurred during cross-examination. There were no bills of exceptions perfected or any refusals to permit such action. The only prohibition is found in the court’s limited and preliminary ruling as to aliases, one, at least, of which was made known to the appellant. No effort was made to utilize this material or to demonstrate to the court that the limited ruling was wrong or that the probative value of any evidence sought to be elicited outweighed any risk its admission might entail. No effort was made to elicit Torino’s current occupation, present residence, etc., which appellant complains he was prohibited from doing. And even now appellant fails to assert how the same was relevant and material.
Generally, the scope of cross-examination is within the control of the trial court and in the exercise of its own discretion. Toler v. State, 546 S.W.2d 290, 295 (Tex.Cr.App.1977). It has been held permissible within that discretion to limit cross-examination to prevent harm to the witness involved. Duran v. State, 631 S.W.2d 524 (Tex.App.-El Paso 1982), petition for discretionary review granted, affirmed per curiam, opinion unpublished (Tex.Cr.App.1984); Saunders v. State, 572 S.W.2d 944 (Tex.Cr.App.1978); Richardson v. State, 508 S.W.2d 380 (Tex.Cr.App.1974). Torino testified without dispute that he had received death threats and about two “hit” attempts, and it was shown he had been placed in the Federal Witness Protection Program in March 1983. Appellant is clearly wrong in saying the record is totally devoid of any evidence that there was any present danger to Torino. There was a sufficient basis for the Court of Appeals’ finding that the trial court had acted properly. Likewise, we agree with the Court of Appeals that Torino’s “bias and prejudice in the matter became patently obvious.” The trial court did not abuse its discretion in limiting the scope of cross-examination if it did. Carmona v. State, 698 S.W.2d 100 (Tex.Cr.App.1985). See also United States v. Watson, 599 F.2d 1149, 1157 (2nd Cir.1979) (rehearing on other grounds 690 F.2d 15); United States v. Covallaro, 553 F.2d 300, 304-306 (2nd Cir.1977); United States v. Pepe, 747 F.2d 632, 656, fn. 33 (11th Cir.1984).
The judgment of the Court of Appeals is affirmed.