Dedric D'Shawn Jones v. State

540 S.W.3d 16

Opinion

Opinion issued August 1, 2017

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00717-CR ——————————— DEDRIC D’SHAWN JONES, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court Harris County, Texas Trial Court Case No. 1452040

OPINION

A jury convicted appellant, Dedric D’Shawn Jones, of the third-degree felony

offense of assault on a family member, second offender.1 After appellant pleaded

1 See TEX. PENAL CODE ANN. § 22.01(b)(2) (West Supp. 2016). true to the allegations in two enhancement paragraphs, the trial court assessed his

punishment at twenty-five years’ confinement. In two issues, appellant contends

that (1) the trial court erroneously limited his cross-examination of a witness by

refusing to allow him to cross-examine the witness about her interest in ongoing

child-custody proceedings involving appellant’s and the complainant’s daughter,

and (2) the trial court erroneously excluded evidence concerning the complainant’s

violent character.

We reverse and remand.

Background

A. Factual Background

On December 17, 2014, appellant was living in a house with his girlfriend,

the complainant Amy Jimenez, their one-year-old daughter, and Jimenez’s mother,

Adeline Gonzales. All four of them started watching a movie in the living room of

the house. Appellant made inappropriate comments about a scene in the movie, and

Jimenez told him to stop because Gonzales was in the room. Gonzales testified that

“there was a lot of frustration in the room.” She left the room with the baby, and

appellant went into the garage. Gonzales later returned to the living room and told

Jimenez that the baby needed some items from the store for school. Appellant’s and

Gonzales’s accounts of what happened after this point differ dramatically.

2 According to appellant, after he left the living room, he stayed in the garage

for about an hour and a half playing a game on his cell phone. Jimenez “came in the

garage a few times” and talked to him. Defense counsel asked whether there was a

fight every time Jimenez came into the garage, and appellant replied that there was

no fight, but “she was trying to pick a fight[.]”

Appellant was sitting between two cars playing on his phone, basically

ignoring Jimenez. She then got “in [his] face” and “karate kick[ed the] phone out of

[his] hand.” When asked by his counsel whether Jimenez slapped the phone down

or kicked it, appellant replied, “She did a pretty good karate kick.” He stated that

the phone “hit the car, fell on the floor. I’m in a tight little space. She kind of hit

my hand pretty hard.” Appellant then slapped Jimenez. When asked whether

Gonzales saw the confrontation, appellant replied, “I doubt it” because of the tight

area and because Jimenez’s back was “towards the window of the kitchen by the

door” to the garage.

According to Gonzales, however, Jimenez went out to the garage, and she and

appellant started arguing. Jimenez wanted the keys to the car to go to the store, and

appellant would not answer her. Gonzales testified that she had the baby in her arms,

and she opened the garage door to give Jimenez some money. She saw appellant

take “a swing at [Jimenez] and he hit her in the face.” The prosecutor then asked

her, “Now prior to you seeing that, did you see [Jimenez] make any contact, physical

3 contact with the defendant?” Gonzales replied, “She was trying to get his attention.

He had a cell phone in his hand. She whacked the phone in his hand.”

Gonzales did not know what happened to the phone, but, in response to the

prosecutor’s statement, “So you’re saying you saw [Jimenez] make contact with his

phone,” she replied, “Right, trying to get his attention.” In response to the

prosecutor’s question, “What did that sound like when he struck your daughter?”

Gonzales testified, “I mean, it was pretty hard because her whole face went back. I

looked back at her. I saw blood coming out of her face,” out of “[h]er lip, right here,

mouth.” Gonzales then started screaming to appellant, “I told you not to put your

hands on her anymore.” She stated, “I had the baby in my arms and I told [Jimenez],

I said, Get out, get in your car, go your dad’s house.” Jimenez looked “pretty scared.

She had a look on her face I had never seen before and I’m a mother. I felt what I

was looking at and I said, Get out of here, get in your car and go. And I’ll call you

when you can come back.” Gonzales then called 9-1-1. She testified that she did

not see Jimenez kick appellant “at any point,” explaining, “I was standing in the

middle of them by that time and there was a car there.”

Appellant did not immediately leave after the altercation with Jimenez. He

demanded to kiss and hug his daughter. He testified, “[Gonzales] is real possessive

of my daughter. She wouldn’t let me get my daughter. So I stayed around longer.

[Gonzales was] yelling at me. And I’m yelling at her, just trying to see my daughter

4 real quick before I left.” No other blows were thrown. Appellant testified that he

went back into the house to get his wallet and identification, and when he discovered

that Gonzales had called 9-1-1, he jumped the fence and went to the park. Appellant

came back to the house after the police arrived, and he was arrested.

Jimenez had left the scene in response to Gonzales’s order before any of this

happened. Gonzales testified extensively, however, as to appellant’s behavior after

Jimenez left. According to her testimony, appellant ransacked the interior of the

house and came back into the garage, “[s]creaming obscenities, calling me

everything in the book and ransacking what he could. I had [the baby] in my arms.

I was more afraid of that than anything else.” She stated, “I was afraid to go back in

the house.” Appellant came back into the garage, and the baby was “crying, crying,”

and Gonzales was trying to calm her down. Appellant picked up a jack that was in

the garage and started swinging it just a couple of feet from Gonzales while

screaming obscenities at her, including “Get your own F’ing baby. This is my F’ing

baby. You rotten F’ing B. It was going on and on.” She stated that appellant also

kicked the doors to her car. She kept screaming, “Get out of here, get out of here,

get of here,” and appellant said in response, “I’m going to get out of here when I kiss

my baby.”

According to Gonzales, appellant grabbed the baby, saying “I just want to hug

my baby,” while Gonzales still held the baby in her arms. Gonzales “kept telling

5 [appellant] to leave [the baby] alone because she started crying. And he grabbed her

little leg and he started doing this to her little body. And it scared me, because I said,

My God, he could have ripped her spinal cord. I let her go.” Appellant stepped

away “because he was leaving with [the baby],” holding her “like a rag doll under

his arm. And she was crying and crying. He’s screaming.” Gonzales testified that

the baby

was pushing and pushing and she was screaming this loud cry like I never heard it before. [Appellant] finally puts her down because she’s wiggling to get away from him. He puts her down and he kind of nudges her and I ran toward her and I grabbed her. I had her in my arms. I wouldn’t let her go. He was still screaming at me, I’m going to get her. I’m going to get her. At that point I was going to do whatever I needed to do because I wasn’t going to let her go.

When the police arrived, appellant went back inside the house and escaped out the

back door over the fence.

Gonzales testified that Jimenez drove up a few minutes later, and “[s]he was

mad, telling me, Mom, why did you call the police? Why did you call the

police. . . . She’s upset and she’s screaming. I’m trying to regroup to what’s just

happening. The baby’s still crying and it’s a whole lot of commotion going on at

the same time.” Jimenez “had a big ball in her lip. . . . You could see a little dried

blood on her face. She had a big ball on her lip here.” Both Gonzales and Jimenez

were interviewed by the police.

6 When asked whether he told his side of the story to the police, appellant

testified, “I didn’t feel like my story means anything. Two angry women.” He also

testified that Jimenez did not file charges against him, she failed to receive a letter

of non-prosecution to sign that he had sent to her, and she came to visit him every

day he was in jail prior to trial. Appellant testified that Jimenez and Gonzales had a

volatile relationship, but the court sustained as irrelevant the State’s objection to the

question of whether appellant had ever seen Jimenez strike her mother. Appellant

finally testified that the other cases he had had involving family violence also had to

do with knocking a phone out of someone’s hand; he was charged and pled guilty in

order “[t]o come home and take care of my child.”

Houston Police Department Officer J. Portillo responded to Gonzales’s 9-1-1

call. As he approached the house, he saw Gonzales and Jimenez walk into the

garage. Both of them “seemed pretty upset and emotional.” Officer Portillo

observed redness on Jimenez’s face and a cut on her upper lip. Although Jimenez

ultimately spoke with Officer Portillo, she initially did not want to speak to police.

Officer Portillo did not see any damage to property in the garage, and the inside of

the house did not appear to have been ransacked, as Gonzales had testified.

7 B. Procedural Background

After voir dire but before the jury was sworn in, defense counsel sought

permission to introduce evidence of an ongoing Child Protective Services (“CPS”)

proceeding to terminate the parental rights of both appellant and Jimenez to their

daughter. Counsel argued:

[Defense Counsel]: The third and last point, Judge, it is my understanding that CPS is involved and the welfare of the [child] in whether or not parental rights were taken from the complaining witness, [Jimenez], and the defendant, and that one of the persons who may be—I don’t know how to put this gently—would get the grandchild would be the mother. Again, it would go to motive as to why—if she sat up there and saw, based on the police report, if she saw mutual conduct—

The Court: So you want to ask Adeline Gonzales whether there’s a CPS investigation and whether she gets the children if that CPS issue was sustained?

[Defense Counsel]: Yes.

The trial court ruled that this evidence was not relevant. Defense counsel also sought

permission to question Gonzales about Jimenez’s reputation in the community for

violence and, specifically, whether Jimenez had ever been violent towards Gonzales.

The trial court ruled that this evidence was not relevant and was inadmissible under

Rule of Evidence 608.

8 Later in the trial, after Gonzales had testified before the jury, defense counsel

made an offer of proof concerning testimony from Gonzales that the trial court had

excluded. Gonzales testified that Jimenez had threatened her on a few occasions in

the past. She also testified that Jimenez had hit her on several occasions and that

Jimenez had been the initial aggressor. With respect to the termination proceedings,

defense counsel and Gonzales had the following exchange:

Q. Do you know that there’s a CPS—that there’s a child custody battle going on to eliminate parental rights of both Amy and Dedric? A. Yes, sir. Q. Do you have an interest in that being done? A. I don’t understand what that means. Q. Do you have a preference? A. Do I have a preference of what? Q. That their parental rights be terminated or not? A. I don’t have any say in that. That damage has been done between the both of them. Q. My understanding is the child is with an aunt; is that correct? A. My sister. Q. Your sister? A. Yes. And before that, she was with me. I had her. I’ve always had her. Q. The reason that you take care of the child is because of the relationship that Dedric and Amy have, correct? A. I’m sorry?

9 Q. It’s because of the type of relationship that Amy and Dedric have and the things that they do destructive towards each other, correct? A. I’m not sure I want to answer that. Q. The reason— A. Yes, that’s why I take care of her because I want her to be safe. She’s a beautiful little girl. She deserves to be safe. (Witness crying.) Q. In this particular case, it is your testimony that Amy hit Dedric first, correct? A. She slapped the phone in his hands.

The jury ultimately found appellant guilty of the offense of assault on a family

member. After appellant pleaded true to the allegations in two enhancement

paragraphs, the trial court assessed his punishment at twenty-five years’

confinement. This appeal followed.

Preservation of Error

We first consider whether appellant preserved his complaint about his cross-

examination of Gonzales for appellate review.

The dissenting opinion argues that appellant failed to preserve his complaint

for appellate review because his offer of proof about Gonzales’s testimony regarding

CPS termination proceedings was insufficient to establish Gonzales’s alleged bias

against appellant. A party may complain on appeal about a ruling excluding

evidence if the error “affects a substantial right of the party” and the party “informs

the court of [the evidence’s] substance by an offer of proof, unless the substance was

10 apparent from the context.” TEX. R. EVID. 103(a). An offer of proof may consist of

a concise statement by counsel that includes a reasonably specific summary of the

evidence and the relevance of the evidence, or the offer may be in question-and-

answer form. Mays v. State, 285 S.W.3d 884, 889–90 (Tex. Crim. App. 2009). “The

primary purpose of an offer of proof is to enable an appellate court to determine

whether the exclusion was erroneous and harmful. A secondary purpose is to permit

the trial judge to reconsider his ruling in light of the actual evidence.” Id. at 890.

Here, before the jury was sworn in, defense counsel stated that he wished to

question Gonzales about several matters, including an ongoing CPS proceeding to

terminate the parental rights of appellant and Jimenez, noting that Gonzales could

get custody of the child and this would be relevant to her motive to testify. The trial

court ruled that this evidence was not relevant. Later, after questioning Gonzales,

defense counsel put on an offer of proof concerning several topics, including

Gonzales’s knowledge of, and interest in, the ongoing termination proceedings.

Gonzales testified that she was aware of the termination proceedings, but she did not

“have any say” in whether the court terminated appellant’s and Jimenez’s parental

rights. Gonzales then testified that the child was currently staying with her sister,

although before that the child had always lived with Gonzales, and that she would

take care of the child because she wanted the child to be safe. We conclude that this

offer of proof sufficiently informed the trial court of the substance of the evidence

11 that appellant sought to introduce, and appellant therefore preserved his complaint

about the exclusion of this evidence. See TEX. R. EVID. 103(a); Mays, 285 S.W.3d

at 889–90.

The dissenting opinion complains about procedural defects concerning

appellant’s offer of proof. Specifically, the dissenting opinion argues that

appellant’s offer of proof failed to segregate admissible evidence from inadmissible

evidence, such as Gonzales’s testimony regarding Jimenez’s past violent conduct,

and that appellant failed to obtain a ruling on the admissibility of the evidence

relating to the termination proceeding.

The dissent cites this Court’s opinion in Sohail v. State for the proposition that

when a party proffers evidence containing both admissible and inadmissible

evidence but does not segregate the evidence to offer only the admissible statements,

the trial court may properly exclude all the statements. See 264 S.W.3d 251, 261

(Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). While this is a correct statement

of the law, Sohail does not involve an offer of proof. Rather, in Sohail, the defendant

sought to introduce into evidence during his case-in-chief a letter, an affidavit to

dismiss a protective order, and a tape recording of the complainant’s conversation

with an unidentified individual, all of which included both admissible and

inadmissible evidence. Id. The defendant did not attempt to redact the inadmissible

statements from these exhibits. Id. at 260. As a result, this Court held that the trial

12 court properly excluded the exhibits because they contained inadmissible evidence.

Id. at 261.

The instant case involves an offer of proof, which, necessarily, is made after

the trial court has already ruled that evidence is inadmissible and has excluded that

evidence. See TEX. R. EVID. 103(a)(2); Mays, 285 S.W.3d at 889 (stating that to

preserve error regarding trial court’s decision to exclude evidence, complaining

party must make offer of proof setting forth substance of proffered evidence). The

reason appellant made his offer of proof, which contained testimony from Gonzales

on several subjects, including the termination proceedings and Jimenez’s past

violent conduct, was that the trial court had already excluded all of this evidence.

The dissent also argues that appellant failed to obtain a ruling on the

admissibility of the offered testimony concerning the termination proceedings. This

is incorrect. After voir dire, but before the jurors had been sworn in, the trial court,

defense counsel, and the State discussed on the record “issues of admissibility of

certain pieces of evidence.” Defense counsel stated that he wished to question

Gonzales about the termination proceedings. The trial court stated, “I’m going to

find the CPS investigation and any potential outcomes are not relevant to this trial

and in fact would be more [prejudicial] to the defendant.” The trial court did not

defer ruling on admissibility—it immediately ruled right then that evidence

concerning the termination proceedings was not relevant and was, thus,

13 inadmissible. Later, after Gonzales testified in front of the jury, appellant put on his

offer of proof. Appellant obtained a ruling on the admissibility of the evidence of

the termination proceedings. He was not required to obtain a second ruling on the

evidence after he made his offer of proof, which he made because the trial court

excluded the evidence of the termination proceedings.2 See TEX. R. EVID. 103(a).

We conclude that appellant preserved his complaint regarding Gonzales’s bias

for appellate review, and we turn to his appeal.

Denial of Cross-Examination

In his first issue, appellant contends that the trial court violated the

Confrontation Clause by erroneously limiting his cross-examination of Gonzales

concerning any interest she might have in ongoing child-custody proceedings

involving appellant’s and Jimenez’s daughter. He contends that the inability to

question Gonzales about her motivation in testifying against him—specifically her

interest in possibly gaining custody of his child—together with his inability to

question Gonzales regarding Jimenez’s past history of violence, severely

undermined his ability to present his defense that he slapped Jimenez in self-defense.

2 As support for the argument that appellant failed to obtain a ruling, the dissent cites Geuder v. State, 115 S.W.3d 11, 14–15 (Tex. Crim. App. 2003), which held that a pretrial motion in limine generally does not preserve error concerning the exclusion of evidence. Geuder did not address offers of proof or whether the complaining party, after obtaining a ruling excluding evidence, must obtain an additional ruling after making an offer of proof—a ruling which would have no function. 14 Thus, appellant makes two critical arguments in this issue. First, he was denied the

constitutional right of confrontation. Second, the ability to confront Gonzales as to

her interest in the custody proceedings was essential to his ability to prove his

defense of self-defense as she was the only witness besides himself who testified as

to the facts of the confrontation between himself and Jimenez, upon which he was

convicted and sentenced to twenty-five years’ confinement. We agree with

appellant.

A. Cross-Examination: The Constitutional Right of Confrontation

Cross-examination serves three general purposes: to identify the witness with

the community so that independent testimony regarding the witness’s reputation for

veracity may be sought, to allow the jury to assess the credibility of the witness, and

to allow facts to be brought out tending to discredit the witness by showing that his

testimony was untrue or biased. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim.

App. 1996). Cross-examination is, by its nature, exploratory, “and there is no

general requirement that the defendant indicate the purpose of his inquiry.” Id.

Rather, the defendant “should be granted a wide latitude even though he is unable to

state what facts he expects to prove through his cross-examination.” Id.

The classic case on the right of confrontation under circumstances similar to

those in this case is Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105 (1974). In that

case, the United States Supreme Court held that the Confrontation Clause means

15 more than the right of an accused in a criminal prosecution to be allowed to confront

the witnesses against him “physically.” Id. at 315, 94 S. Ct. at 1110. “The main and

essential purpose of confrontation is to secure for the opponent the opportunity of

cross-examination,” as this is “the principal means by which the believability of a

witness and the truth of his testimony are tested.” Id. at 315–16, 94 S. Ct. at 1110;

see Johnson v. State, 433 S.W.3d 546, 551 (Tex. Crim. App. 2014) (quoting Davis,

415 U.S. at 315–16, 94 S. Ct. at 1110). The defendant is not only permitted to delve

into the witness’s story to test his perceptions and memory but is traditionally

allowed to impeach or discredit the witness. Davis, 415 U.S. at 316, 94 S. Ct. at

1110. A defendant’s

attack on the witness’s credibility is effected by means of cross- examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial and is “always relevant to discrediting the witness and affecting the weight of his testimony.”

Id. (quoting 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970)).

“[E]xposure of a witness’ motivation in testifying is a proper and important

function of the constitutionally protected right of cross-examination.” Delaware v.

Van Arsdall, 475 U.S. 673, 678–79, 106 S. Ct. 1431, 1435 (1986); Carpenter v.

State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998) (“Exposing a witness’

motivation to testify for or against the accused or the State is a proper and important

purpose of cross-examination.”). “The possible animus, motive, or ill will of a 16 prosecution witness who testified against the defendant is never a collateral or

irrelevant inquiry, and the defendant is entitled, subject to reasonable restrictions, to

show any relevant fact that might tend to establish ill feeling, bias, motive, interest,

or animus on the part of any witness testifying against him.” Billodeau v. State, 277

S.W.3d 34, 42–43 (Tex. Crim. App. 2009); see Johnson v. State, 490 S.W.3d 895,

909–10 (Tex. Crim. App. 2016).

Particularly pertinent to this case is the Supreme Court’s holding in Davis that

the defendant in that case had the right to attempt to show that a prosecution witness

who was on probation was biased against the defendant because of the witness’s

“vulnerable status.” 415 U.S. at 317–18, 94 S. Ct. at 1111; see also Carroll, 916

S.W.2d at 500 (“Appellant’s cross-examination was clearly an attempt to

demonstrate that [the witness] held a possible motive, bias or interest in testifying

for the State. . . . A defendant is permitted to elicit any fact from a witness intended

to demonstrate that witness’s vulnerable relationship with the state.”). The Davis

Court observed,

We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on [the witness’s] testimony which provided “a crucial link in the proof . . . of petitioner’s act.”

17 415 U.S. at 317, 94 S. Ct. at 1111 (quoting Douglas v. Alabama, 390 U.S. 415, 419,

85 S. Ct. 1074, 1077 (1965)) (emphasis added).

The scope of appropriate cross-examination is necessarily broad. Carroll, 916

S.W.2d at 497. It encompasses all facts and circumstances that, tested by human

experience, tend to show that the witness may shade his testimony for the purpose

of establishing one side of the cause only. Id. at 497–98 (quoting Jackson v. State,

482 S.W.2d 864, 868 (Tex. Crim. App. 1972)). Accordingly, a defendant is entitled

to pursue all avenues of cross-examination reasonably calculated to expose a motive,

bias, or interest for the witness’s testimony. Lewis v. State, 815 S.W.2d 560, 565

(Tex. Crim. App. 1991).

A defendant’s constitutional right to confrontation is violated when

appropriate cross-examination is limited. See Van Arsdall, 475 U.S. at 679, 106 S.

Ct. at 1435; Carroll, 916 S.W.2d at 497. The trial court has no discretion to so

drastically curtail the defendant’s cross-examination as to leave him unable to show

why the witness might have been biased or otherwise lacked the level of impartiality

expected of a witness. Johnson, 433 S.W.3d at 555. However, the proponent of the

evidence “must establish some causal connection or logical relationship between the

[source of bias] and the witness’ ‘vulnerable relationship’ or potential bias or

prejudice for the State, or testimony at trial.” Carpenter, 979 S.W.2d at 634

18 (analyzing admissibility of evidence of pending charges against witness); see Irby v.

State, 327 S.W.3d 138, 147–48 (Tex. Crim. App. 2010) (same).

B. Law Concerning Defense of Self-Defense

Appellant argues that he hit Jimenez in self-defense after she karate-kicked

his phone out of his hands. Self-defense is statutorily defined and provides a defense

to prosecution when the conduct in question is “justified.” TEX. PENAL CODE ANN.

§§ 9.02, 9.31 (West 2011). Under Texas Penal Code Chapter 9, “a person is justified

in using force against another when and to the degree the actor reasonably believes

the force is immediately necessary to protect the actor against the other’s use or

attempted use of unlawful force.” Id. § 9.31(a). “The use of force against another

is not justified,” either “in response to verbal provocation alone” or “if the actor

provoked the other’s use or attempted use of unlawful force.” Id. § 9.31(b)(1), (4).

When a defense of self-defense is raised, as here, the reviewing court’s task

is to “determine whether after viewing all the evidence in the light most favorable to

the prosecution, any rational trier of fact would have found the essential elements of

[the crime] beyond a reasonable doubt and also would have found against appellant

on the self-defense issue beyond a reasonable doubt.” Saxton v. State, 804 S.W.2d

910, 914 (Tex. Crim. App. 1991) (emphasis added).

In a claim of self-defense, “a defendant bears the burden of production,” while

“the State then bears the burden of persuasion to disprove the raised defense.”

19 Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Saxton, 804

S.W.2d at 913–14). The defendant’s burden of production requires the defendant to

adduce some evidence that would support a rational jury finding as to the defense.

See TEX. PENAL CODE ANN. § 2.03(c) (West 2011) (“The issue of the existence of a

defense is not submitted to the jury unless evidence is admitted supporting the

defense.”); Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013); Shaw

v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007). “[E]ven a minimum

quantity of evidence is sufficient to raise a defense as long as the evidence would

support a rational jury finding as to the defense.” Krajcovic, 393 S.W.3d at 286

(citing Shaw, 243 S.W.3d at 657–58). “[A] defense is supported (or ‘raised’) if there

is evidence in the record making a prima facie case for the defense.” Shaw, 243

S.W.3d at 657. “A prima facie case is that ‘minimum quantum of evidence necessary

to support a rational inference that [an] allegation of fact is true.’” Id. (quoting

Tompkins v. State, 774 S.W.2d 195, 201 (Tex. Crim. App. 1987)).

If the defendant meets his burden of production, the burden of persuasion

shifts back to the State. Zuliani, 97 S.W.3d at 594. The State’s “burden of

persuasion is not one that requires the production of evidence, rather it requires only

that the State prove its case beyond a reasonable doubt.” Id. (citing Saxton, 804

S.W.2d at 913). In order to prove the offense beyond a reasonable doubt, it must

likewise disprove the defense of self-defense beyond a reasonable doubt. Saxton,

20 804 S.W.2d at 914. Thus, if appellant produced at least some evidence that would

support a rational jury’s finding that he hit Jimenez in defense to her use of force

against him, the State would have to disprove his defense of self-defense beyond a

reasonable doubt to prove the family violence charge against him beyond a

reasonable doubt.

With appellant’s defense in mind—that he slapped Jimenez in self-defense

only after she karate-kicked him first—we turn to the effect of Gonzales’s testimony

against appellant. Appellant argues that his questioning could have shown that

Gonzales was biased against him because of her interest as a potential managing

conservator of his child and that, therefore, the trial court erred in not allowing him

to question her as to ongoing parental rights termination proceedings against himself

and Jimenez.

C. Relationship Between Family Violence Conviction and Child Custody Proceedings

Termination and custody proceedings always entail the determination of

custody based on the conduct of the parents and the best interests of the child. The

commission of family violence is a mandatory consideration in determining the

custody of a child in both custody and termination proceedings. Texas Family Code

section 153.004(c) requires that, in custody proceedings, the family court shall

consider the commission of family violence in determining whether to deny, restrict,

or limit possession of a child by a parent. TEX. FAM. CODE ANN. § 153.004(c) (West 21 2014). In a case to terminate parental rights brought by the Department of Family

and Protective Services (“DFPS”) under Family Code section 161.001, DFPS must

establish, by clear and convincing evidence, that (1) the parent committed one or

more of the enumerated acts or omissions justifying termination and (2) termination

is in the best interest of the child. Id. § 161.001(b) (West Supp. 2016); In re C.H.,

89 S.W.3d 17, 23 (Tex. 2002).

There is a strong presumption that the best interest of the child will be served

by preserving the parent-child relationship. See In re R.R., 209 S.W.3d 112, 116

(Tex. 2006) (per curiam). However, prompt and permanent placement of the child

in a safe environment is also presumed to be in the child’s best interest. TEX. FAM.

CODE ANN. § 263.307(a) (West Supp. 2016).

A grandparent can have an interest in a child custody determination—whether

in connection with termination proceedings or not—if the grandparent requests

possession of a child by filing an original suit or a suit for modification. Id.

§ 153.432(a) (West 2014); see In re Chambless, 257 S.W.3d 698, 699–700 (Tex.

2008) (per curiam). However, Family Code section 153.131(a) creates a

presumption in favor of a parent when a non-parent (such as DFPS or a grandparent

or other relative) is seeking custody of a child.3 TEX. FAM. CODE ANN. § 153.131(a)

3 Section 153.131(a) provides:

22 (West 2014). The parental presumption set out in Family Code section 153.131(a)

is expressly made subject to section 153.004 of the Code. Section 153.004(b)

provides “a rebuttable presumption that the appointment of a parent as the sole

managing conservator of a child or as the conservator who has the exclusive right to

determine the primary residence of a child is not in the best interest of the child if

credible evidence is presented of a history or pattern of past or

present . . . physical . . . abuse by that parent directed against the other parent . . . .”

Id. § 153.004(b). And, as stated above, section 153.004(c) requires that, in custody

proceedings, the family court “shall consider the commission of family violence in

determining whether to deny, restrict, or limit possession of a child by a parent . . . .”

Id. § 153.004(c) (emphasis added).

D. Confrontation Clause Analysis

Appellant was charged with assault on a family member, Jimenez—an act of

family violence. The elements of assault on a family member, as relevant here, are

(1) intentionally (2) causing bodily injury (3) to another person (4) who is a member

Subject to the prohibition in Section 153.004, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.

TEX. FAM. CODE ANN. § 153.131(a) (West 2014).

23 of the defendant’s family or a person with whom the defendant has a “dating

relationship.” TEX. PENAL CODE ANN. § 22.01(a) (West Supp. 2016) (defining

assault). Under the Penal Code, the offense is enhanced from a Class A

misdemeanor to a third-degree felony if the assault is against a family member or

involves “dating violence” and the defendant has certain prior convictions, including

a prior conviction for assault on a family member. Id. § 22.01(b)(2)(A); TEX. FAM.

CODE ANN. § 71.0021 (West Supp. 2016) (defining “dating violence” and “dating

relationship”); id. § 71.003 (West 2014) (defining “family”). The punishment for

conviction of a third-degree felony—such as assault on a family member, second

offender—when the defendant has two prior felony convictions is confinement for

twenty-five years to life. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2016).

Because he had a prior conviction for assault on a family member as well as

two prior felony convictions, appellant faced a sentence of twenty-five years to life

upon conviction in this case for family violence. His defense at trial was that

Jimenez “karate kick[ed]” his phone out of his hand when he would not respond to

her and that he struck her in self-defense. The only witnesses to the offense with

which appellant was charged who testified at trial were appellant and Gonzales.

Jimenez, the complainant, did not testify.

At the time of trial, Jimenez and appellant were involved in ongoing child

custody proceedings to determine whether their parental rights to their one-year-old

24 daughter should be terminated. Although there is a strong presumption that the best

interest of the child is served by preserving the parent-child relationship, under the

plain language of Family Code sections 153.131(a) and 153.004(b) and (c), the

parental presumption is removed by a showing that the parent seeking to be

appointed managing conservator has a history or pattern of past or present physical

abuse directed against the other parent. See TEX. FAM. CODE ANN. §§ 153.004(b),

153.131(a). Therefore, appellant’s conviction for family-violence assault, combined

with his past family-violence assault conviction, is exactly the type of evidence

required to justify both the termination of his parental rights and the appointment of

Jimenez as sole managing conservator or, if Jimenez were likewise to have her rights

terminated or to be shown to have a history of family violence, the parental

presumption would be removed for both parents, and the appointment of a non-

parent, like Gonzales, as sole managing conservator could be pursued. Thus,

appellant had a “vulnerable status” with respect to testimony that he committed

family violence. See Davis, 415 U.S. at 317–18, 94 S. Ct. at 1111; Carroll, 916

S.W.2d at 500.

In this criminal case, it was the jury’s responsibility to determine beyond a

reasonable doubt whether appellant committed an act of domestic violence against

Jimenez—hitting her in the face—without justification or whether appellant raised

a reasonable doubt as to whether his striking Jimenez was justified because Jimenez

25 used unjustified force first against him by striking or “karate kicking” the phone

from his hand. Only by making that determination could the jury determine whether

appellant had the requisite intent to use unlawful force against Jimenez beyond a

reasonable doubt and should be convicted of domestic violence or whether appellant

had raised a reasonable doubt as to his intent and should be acquitted. And on this

outcome-determinative issue, the weight and credibility of Gonzales’s testimony

was critical.

The controlling question on appeal is whether, had appellant been able to

cross-examine Gonzales on the termination proceedings and her interest in them, he

could have made the jury aware of a bias or interest on her part that would have

motivated her to testify against him on the underlying offense of domestic violence

against Jimenez because of her interest in obtaining custody of his child or

preventing appellant from maintaining custody of the child. Such a consideration

directly impacts the weight to be given a witness’s testimony by the jury. See Davis,

415 U.S. at 317, 94 S. Ct. at 1111. Thus, appellant’s cross-examination of

Gonzales’s interest in the outcome of the parental rights termination proceeding had

the potential to raise a reasonable doubt in the mind of the jury as to whether

appellant assaulted Jimenez without justification, committing an act of domestic

violence that could—and did—send him to prison for twenty-five years to life, or

whether he acted with justification in response to Jimenez’s initial, unjustified, and

26 unlawful act of force and therefore should have been acquitted on the basis of his

defense. See Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913–14.

We conclude that this is a classic Confrontation Clause case. Here, the

converse of Davis is at issue: appellant, the defendant—as opposed to the witness

against him, Gonzales—was in a particularly vulnerable status as a defendant in a

domestic dispute in which a conviction carried a twenty-five-year to life sentence

and was also mandatory evidence in determining his parental and custody rights.

See TEX. FAM. CODE ANN. §§ 153.004, 153.131. Thus, he was extremely vulnerable

to losing custody of his child should he be convicted of assaulting Jimenez without

justification. The principal witness against him—indeed the only eyewitness who

testified at trial besides himself—was Gonzales, the grandmother of the child. Her

testimony on direct examination showed a deep possessory interest in the child, and

she could not be excluded on the basis of anything in the record of this case as a

possible managing conservator should appellant and Jimenez lose their parental

rights, or should appellant lose his. Thus, cross-examination and impeachment of

Gonzales directed toward revealing her “possible bias, prejudice or ulterior

motives . . . as they [might] relate directly to issues or personalities in the case” was

not only relevant but “‘always relevant as discrediting the witness and affecting the

weight of [the] testimony.’” Davis, 415 U.S. at 316, 94 S. Ct. at 1110; Johnson, 433

S.W.3d at 551.

27 Under Davis, “the jurors were entitled to have the benefit of the defense theory

before them so that they could make an informed judgment as to the weight to place

on [the witness’s] testimony which provided ‘a crucial link in the proof . . . of [the

defendant’s] act” of domestic violence against Jimenez. 415 U.S. at 317, 94 S. Ct.

at 1111. Appellant argued that he struck Jimenez in self-defense. The only other

eyewitness to the incident was Gonzales. The State asked Gonzales whether

Jimenez made any physical contact with appellant before he struck her. Gonzales

testified, “She was trying to get his attention. He had a cell phone in his hand. She

whacked the phone in his hand.” Gonzales did not see what happened to the phone.

She also testified that she did not see whether Jimenez kicked appellant, stating, “I

was standing in the middle of them by that time and there was a car there.” Appellant

testified it was unlikely that Gonzales even saw clearly what happened between him

and [Jimenez] because “like the tight area we [were] in, . . . [Jimenez’s] back is

towards the window of the kitchen by the door” and Gonzales came into the garage

at approximately the moment the confrontation occurred.

Gonzales did not testify to anything else about the confrontation between

Jimenez and appellant with which appellant was charged. Instead, she testified

graphically and at length about her fears for her granddaughter’s safety in appellant’s

presence and the danger she believed he presented to the child she was protecting

from him. None of this testimony was relevant to the charged offense, but it was

28 highly prejudicial to appellant, both in his trial for striking and injuring Jimenez

without justification and with respect to his ability to retain his parental rights to the

child, both because appellant faced a minimum twenty-five year sentence for striking

Jimenez without justification and because domestic violence is a mandatory

consideration in the termination and custody proceedings that were then ongoing—

proceedings in which the elimination of the parental presumption in favor of

appellant would allow Gonzales to seek custody of the child.

It is hard to imagine a more clear-cut case in which a criminal defendant

should have been permitted to confront the sole eyewitness against him to allow the

jury to assess her credibility and to allow facts to be brought out regarding her

interest in the child that might tend to discredit her by showing that her relevant

testimony with respect to the charged offense was untrue or biased. See Carroll,

916 S.W.2d at 497; see also Davis, 415 U.S. at 316, 94 S. Ct. at 1110 (stating that

partiality of witness is subject to exploration and is always relevant to discrediting

witness and affecting weight of testimony, and stating that exposing witness’s

motivation in testifying is proper function of protected right of cross-examination).

As appellant points out, an interest in the outcome of a child custody

determination has twice been held by the intermediate appellate courts of this state

to be a valid area for exposing bias through cross-examination in circumstances that

29 did not involve termination proceedings or the potential of a long prison sentence

for the party seeking cross-examination.

In Fox v. State, the Fourteenth Court of Appeals held that Rule of Evidence

608, prohibiting cross-examination on a witness’s general character for truthfulness,

did not preclude cross-examination of a mother as to whether she attempted to

implant the suggestion of the father’s sexual abuse of the children where, if the father

were in jail or even accused of sexual abuse of a child, the mother would stand a far

better chance of obtaining custody of all of the children in a separate divorce

proceeding. 115 S.W.3d 550, 567–68 (Tex. App.—Houston [14th Dist.] 2002, pet.

ref’d). The court of appeals held that there was no legitimate reason for the trial

court to limit the cross-examination because the subject of motivation and bias was

not exhausted; the cross-examination was not designed to annoy, harass, or

humiliate, but rather to show motive and bias; and the cross-examination did not

endanger the witness. Id. at 567. Because the requested cross-examination was

proper under the rules of evidence and required by the Confrontation Clause of the

United States Constitution, the trial court abused its discretion in limiting the cross-

examination. Id. at 568.

Ryan v. State, an unpublished decision, is also illustrative. See No. 04-08-

00594-CR, 2009 WL 2045211 (Tex. App.—San Antonio July 15, 2009, no pet.) (not

designated for publication). In that case, the court of appeals held that the trial court

30 abused its discretion by limiting cross-examination of Ryan’s ex-wife about custody

of their oldest child. Id. at *3–4. The ex-wife testified that when she and Ryan had

previously separated, the family court had awarded Ryan custody of the oldest child.

Id. at *4. Ryan testified that, after he was arrested for assaulting his ex-wife in the

underlying offense, she took both children, moved out of the residence, and did not

return the oldest child to him. Id. The court did not permit Ryan to question his ex-

wife about any subsequent custody disputes between them or the effect of any such

disputes on her testimony. Id.

The court of appeals observed that the commission of family violence is a

mandatory factor to be considered in determining custody of children. Id. at *4

(citing TEX. FAM. CODE ANN. § 153.004(c) (“The court shall consider the

commission of family violence in determining whether to deny, restrict, or limit the

possession of a child by a parent who is appointed as a possessory conservator.”))

(emphasis added). Accordingly, the court held that questions regarding custody

proceedings were relevant to the ex-wife’s “motivation to exaggerate her testimony

at trial.” Id. Because the ex-wife’s possible bias and motive as a result of the

ongoing custody dispute were not made clear to the jury through thorough and

effective cross-examination, the trial court abused its discretion by limiting defense

counsel’s cross examination. Id. at *5.

31 Both Ryan and Fox are directly on point and persuasive authority. Gonzales

testified against appellant extensively on direct examination. First, she briefly

testified about the incident with which appellant was charged, indicating that

Jimenez tried to get appellant’s attention by “whack[ing] the phone in his hand.”

She then testified extensively and emotionally concerning appellant’s violence

towards his and Jimenez’s child as Gonzales tried to get him to leave the house after

Jimenez had already left. Yet appellant was expressly prohibited from asking

Gonzales whether she knew there was an ongoing child custody dispute to terminate

the parental rights of both Jimenez and appellant and whether Gonzales had an

interest in those proceedings. He was also prohibited from asking her whether she

actually or potentially stood to obtain custody of the child in the accompanying

custody proceedings.

Without cross-examination, the jury in this case was deprived of facts

necessary to determine Gonzales’s credibility and thus to make an informed

judgment as to her motivation and the weight to be placed on her testimony, which

was crucial to the proof of appellant’s intent to strike and injure Jimenez without

justification and therefore with criminal intent. See Davis, 415 U.S. at 317, 94 S.

Ct. at 1111; Douglas, 390 U.S. at 419, 85 S. Ct. at 1077. Thus, Gonzales’s testimony

about appellant’s family violence was critical to his conviction. Moreover, had the

jury agreed that appellant raised a reasonable doubt as to his defense of self-defense,

32 it could not have convicted him of domestic violence beyond a reasonable doubt—

a mandatory consideration in determining whether he would lose custody of the child

to Jimenez, Gonzales herself, or another in the then-ongoing parental rights

termination proceedings. See TEX. FAM. CODE ANN. §§ 153.004, 153.131.

Therefore, there was a direct and crucial link between the weight placed by the jury

on Gonzales’s testimony in appellant’s trial for domestic violence and her own

possible bias or interest in the parental rights termination proceedings and ultimate

possession of the child. See, e.g., Van Arsdall, 475 U.S. at 678–79, 106 S. Ct. at

1435 (“[E]xposure of a witness’ motivation in testifying is a proper and important

function of the constitutionally protected right of cross-examination.”); Billodeau,

277 S.W.3d at 42–43 (“The possible animus, motive, or ill will of a prosecution

witness who testifies against the defendant is never a collateral or irrelevant inquiry,

and the defendant is entitled, subject to reasonable restrictions, to show any relevant

fact that might tend to establish ill feeling, bias, motive, interest, or animus on the

part of any witness testifying against him”); Carpenter, 979 S.W.2d at 634

(“Exposing a witness’ motivation to testify for or against the accused or the State is

a proper and important purpose of cross-examination.”); Lewis, 815 S.W.2d at 565

(defendant is entitled to pursue all avenues of cross-examination reasonably

calculated to expose motive, bias, or interest for witness’s testimony).

33 We hold that the trial court abused its discretion by denying appellant his

constitutional right under the Confrontation Clause to question Gonzales about her

interest in the outcome of ongoing parental rights termination proceedings against

him and Jimenez and therefore her possible bias in testifying against him. We now

determine whether the error was harmful.

E. Harm Analysis

Constitutional error in a criminal case is subject to harmless error review.

TEX. R. APP. P. 44.2. In such a case, the court of appeals must reverse a judgment

of conviction unless the court determines beyond a reasonable doubt that the error

did not contribute to the conviction or punishment. Id. This rule is based on the

parallel federal rule of criminal procedure; and, therefore, decisions of the United

States Supreme Court may be looked to for guidance in interpreting the state rule.

Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). Accordingly, the Court

of Criminal Appeals has adopted the Supreme Court’s conclusion that it is the

responsibility of the appellate court to assess harm after reviewing the record. Id.

(quoting O’Neal v. McAninch, 513 U.S. 432, 436–37, 115 S. Ct. 992, 994–95

(1995)).

In Van Arsdall, the United States Supreme Court applied the harmless error

standard set out in Chapman v. California. See 475 U.S. at 680–81, 106 S. Ct. at

1436 (citing Chapman, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967)). Under this

34 standard, the reviewing court must inquire whether, assuming the damaging

potential of the cross-examination were fully realized, a reviewing court might

nonetheless say the error was harmless beyond a reasonable doubt. Id. at 684, 106

S. Ct. at 1438. The reviewing court looks at “the importance of the witness’

testimony in the prosecution’s case, whether the testimony was cumulative, the

presence or absence of evidence corroborating or contradicting the testimony of the

witness on material points, the extent of cross-examination otherwise permitted, and,

of course, the overall strength of the prosecution’s case.” Id.

Here, Gonzales was the State’s principal witness against appellant, since

Jimenez did not testify, and there were discrepancies between Gonzales’s testimony

and that of both appellant and Officer Portillo, who responded to Gonzales’s 9-1-1

call. Her testimony contradicted appellant’s description of the confrontation

between himself and Jimenez. Having first testified that Jimenez “whacked” the

phone in appellant’s hand to get his attention, Gonzales subsequently testified that

Jimenez merely “slapped the phone” in appellant’s hand and that appellant then hit

Jimenez in the face, knocking her back and causing her mouth to start bleeding

immediately. Appellant, by contrast, testified that he “slapped” Jimenez in self-

defense when Jimenez “karate kick[ed the] phone out of [his] hand,” striking his

hand and causing the phone to hit the car. Gonzales admitted she did not see what

happened to the phone. According to Gonzales, Jimenez’s mouth swelled into “a

35 big ball on her lip.” Officer Portillo testified that Jimenez “had redness to the face”

and a cut on her upper lip and that her eyes were watering. Gonzales also testified

that appellant “kicked her car doors in” and “ransacked” the house. Appellant

testified that he went into the house to get his identification and wallet when

Gonzales ordered him to leave. Officer Portillo saw no evidence of ransacking or of

damage to any property in the garage. Gonzales testified extensively, without

rebuttal, to appellant’s treatment of the child and of herself after Jimenez had left the

scene in response to Gonzales’s order and before appellant likewise left at

Gonzales’s command.

Jimenez did not testify. Therefore, the only direct witness to the confrontation

between Jimenez and himself, besides appellant, was Gonzales. Appellant contends

that because he could not cross-examine Gonzales for bias or interest, the jury heard

only her testimony that Jimenez merely slapped the phone out of his hand “to get his

attention” and his testimony, which, he contends, it could have discounted as self-

serving.

Considering the Chapman and Van Arsdall standard for harmless error in

denial of cross-examination under these circumstances, Gonzales’ testimony was of

great importance to the prosecution’s case against appellant for domestic violence,

and her testimony was not cumulative, as no other eyewitness present at the time of

the offense testified about the confrontation between appellant and Jimenez other

36 than appellant himself, as Jimenez did not testify. See Van Arsdall, 475 U.S. at 684,

106 S. Ct. at 1438.

Most importantly, appellant’s inability to confront Gonzales for bias or

interest greatly affected the overall strength of the prosecution’s case and of

appellant’s defense of self-defense. See Van Arsdall, 475 U.S. at 684, 106 S. Ct. at

1438. Appellant was charged with assault on a family member, i.e., with

(1) intentionally (2) causing bodily injury (3) to another person (4) who is a member

of the defendant’s family or a person with whom the defendant has a “dating

relationship.” TEX. PENAL CODE ANN. § 22.01(a). Both appellant and Gonzales

testified that Jimenez struck appellant’s phone first. But Gonzales’s testimony

swiftly veered to the subsequent confrontation between her and appellant over the

child and Gonzales’s command that appellant leave the house. Thus, without

evidence of Gonzales’s interest in the child, there was nothing to support appellant’s

claim of self-defense in his confrontation with Jimenez other than his own testimony,

testimony that was overwhelmed by Gonzales’s testimony about her interest in

protecting the child from appellant.

Had the jury been in possession of the facts into which appellant was

forbidden to inquire on cross-examination of Gonzales, it could have made an

informed judgment as to the weight to place on her testimony regarding the charged

domestic violence offense—testimony which provided a crucial link to the proof of

37 both appellant’s act against Jimenez and his defense of self-defense. Accordingly,

we hold that the trial court’s error in denying appellant the right to cross-examine

Gonzales about her interest in the termination of parental rights proceedings and the

attendant custody dispute was harmful to appellant’s case. See Van Arsdall, 475

U.S. at 684, 106 S. Ct. at 1438; see also TEX. R. APP. P. 44.2(a) (stating that, in cases

involving constitutional error, appellate court must reverse judgment of conviction

unless court determines beyond a reasonable doubt that error did not contribute to

conviction).

We sustain appellant’s first issue.4

Conclusion

We reverse the judgment of the trial court and remand this case for a new trial.

Evelyn V. Keyes Justice

Panel consists of Justices Jennings, Keyes, and Brown.

Justice Brown, dissenting.

Publish. TEX. R. APP. P. 47.2(b).

4 Because we sustain appellant’s first issue, and therefore remand this case for a new trial, we need not address appellant’s second issue concerning the exclusion of evidence of Jimenez’s violent acts against Gonzales, as resolution of that issue would afford him no greater relief. 38