Hurd v. State

725 S.W.2d 249, 1987 Tex. Crim. App. LEXIS 524
CourtCourt of Criminal Appeals of Texas
DecidedFebruary 25, 1987
Docket264-86
StatusPublished
Cited by101 cases

This text of 725 S.W.2d 249 (Hurd v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hurd v. State, 725 S.W.2d 249, 1987 Tex. Crim. App. LEXIS 524 (Tex. 1987).

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appellant was convicted of aggravated robbery by a jury. The trial court assessed his punishment at confinement for fifteen years and one day in the Texas Department of Corrections. In his appeal, the appellant raised a point of error contending that the trial court improperly denied him his right to effective cross-examination by not allowing his counsel to cross-examine the complaining witness about his racial prejudice. The Court of Appeals overruled this point of error, and five others, in affirming the judgment of the trial court. Hurd v. State, 704 S.W.2d 539 (Tex.App. 14th Dist., 1986).

The Court of Appeals decided that trial courts have wide discretion in deciding how bias can be proven and the extent cross-examination should take for the purpose of showing bias. The Court of Appeals concluded the trial court acted within its discretion when it barred the appellant from cross-examining the complaining witness about his specific acts of racial bigotry, and when it decided that the appellant would only be allowed to prove racial prejudice through the testimony of other witnesses. Hurd, supra, at 541.

By petition for discretionary review to this Court, the appellant raised one ground for review. The appellant presented a sufficient reason for review when he argued that the decision of the Court of Appeals is in conflict with prior decisions of this Court. Tex.App.R. 200(c)(3).

In his ground for review, appellant stated that the trial court limited his cross-examination of the complaining witness, thereby violating his right to cross-examine and confront the witness against him. U.S. Const. Amend. VI and XIV and Tex. Const, art. I, sec. 10. He argues it was error for the trial court to require him to affirmatively show the prejudice of the complaining witness through the testimony of other [251]*251witnesses, and not through the cross-examination of the complaining witness.

In its response to the appellant’s petition and brief, the State urges us to accept the decision of the Court of Appeals and approve its reasoning that this was a legitimate exercise of the trial court’s discretion. The State also argued that the appellant failed to preserve error by not filing an adequate bill of exception.

This Court granted the appellant’s petition for discretionary review. We reverse the decision of the Court of Appeals.

A review of the facts is necessary. The complaining witness, Clail MacSorley, testified that he worked as a manager of a Radio Shack in Houston on the day the instant offense was committed. MacSor-ley, who is white, testified that the appellant, who is black, used a gun to place MacSorley in fear for his life, and then robbed MacSorley. Before the appellant could take control of MacSorley’s money, an employee of Radio Shack, Jody Coles, entered the store. According to MacSor-ley, appellant then left the store without completing the appropriation of MacSor-ley’s property. MacSorley also testified that appellant wore a shirt which had both his first name and place of employment written on it, parked his own car in front of the store, and, initially, left his car keys on the counter during the robbery. Coles testified that he only saw a gun in the waistband of the appellant’s pants as the appellant left. The appellant testified that he did not attempt to rob the store, that he did not pull his gun on MacSorley, and that he and MacSorley merely argued.

MacSorley’s testimony was vitally important to the prosecution’s case against the appellant because there were no other witnesses to the facts which constituted the elements of aggravated robbery. Coles’ testimony, that appellant had a gun tucked in the waistband of his pants as he left the store, provided no more corroboration for MacSorley’s testimony than it provided for the appellant’s testimony. Without Mac-Sorley’s testimony, there could have been no conviction of the appellant.

Counsel for appellant sought to impeach the reliability of MacSorley’s testimony by showing, on cross-examination, that Mac-Sorley was prejudiced against black people and that his prejudice improperly motivated him to testify as he did. The only questions which appellant was allowed to ask MacSorley, in the presence of the jury, were “do you have anything against black people?”, “have you ever stated, or had feelings or oppositions to people of black race?”, and “there is nothing then in your past ... that would reflect that you would do anything adverse toward a person solely for the reason they were black?” MacSor-ley responded in the negative to all three inquiries.

Then counsel for appellant attempted to ask MacSorley about problems that he had when he worked as a police officer in Florida, about whether MacSorley knew a man named Bert Straley, and whether there was anything in MacSorley’s past about blacks. Each time, the State objected before Mac-Sorley could answer the questions, and the trial court sustained the objections.

Outside the presence of the jury, the appellant’s counsel explained to the trial court what he wanted to show the jury through his cross-examination of MacSor-ley. Appellant’s counsel stated that he wanted to ask MacSorley whether he had an “established propensity for hating people of black race”, if MacSorley had been “terminated from his employment on several occasions for violence against blacks” whether MacSorley had actually “fired every black employee he ever had”, and if MacSorley was terminated from his employment as manager of a liquor store in Florida because he had problems with black customers.

Counsel for appellant set out, for the trial court, his reasons for cross-examining MacSorley about these subjects. Counsel stated:

“I have a duty to do in defending Mr. Hurd. This jury needs to know that this man hates black people ...
“It’s proper to show a motive for an individual to testify in the fashion in which he is testifying. ...
[252]*252“I could show this Court he has a motive for testifying like this and it’s in his character.”

However, the trial court sustained the State’s objection, and denied the appellant an opportunity to cross-examine MacSorley as to the reasons for the terminations of his past jobs, including those as a police officer and a liquor store manager. Appellant was also prevented from asking Mac-Sorley about other alleged acts of bigotry.

The trial court informed counsel for appellant that if “you have any witnesses that could impeach him (MacSorley) on these things, I will let you put these things on.” In effect, the trial court permitted the counsel for appellant to present evidence of MacSorley’s prejudice only through direct examination of other witnesses.

During final arguments, counsel for appellant stated:

“There are a lot of things I can’t get into as far as impeachment is concerned. ... I can’t ask him, ‘Have you ever been fired from a job because of harassment of blacks.”

The State’s counsel objected to this argument, and the trial court sustained that objection.

During his closing argument to the jury, the counsel for the State responded:

“I will tell you how he did it, and that is by creating, through accusations and innuendoes and supposition, the illusion that Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
725 S.W.2d 249, 1987 Tex. Crim. App. LEXIS 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurd-v-state-texcrimapp-1987.