in Re Michael Lou Garrett, Relator

• Court: Court of Appeals of Texas
• Decided: September 30, 2004
• Docket: 07-04-00441-CV
• Status: Published

Opinion

NO. 07-04-0441-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 30, 2004

______________________________

IN RE MICHAEL LOU GARRETT, RELATOR

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Relator Michael Lou Garrett requests issuance of writ of mandamus directing the District Clerk of Potter County to locate, file and bring to the attention of the District Judge of the 181^st District Court a Motion for Temporary Restraining Order and Preliminary Injunction. Relator also requests that the district judge be included in the writ of mandamus and that we direct the judge to immediately rule on the Motion. We dismiss as to the District Clerk and decline to issue writ to the District Judge.

Pursuant to Tex. Gov't. Code Ann. § 22.221 ("TGCA"), a court of appeals has jurisdiction to issue writs of mandamus (1) to enforce its jurisdiction; or (2) against certain judges of or acting within the district of the court of appeals. TGCA §§ 22.221(a),(b).

Relator does not claim that his petition seeks relief designed to enforce this court's jurisdiction. Thus, this court does not have jurisdiction to issue a writ of mandamus to the district clerk, and relator's petition seeking a writ directed to the District Clerk of Potter County is dismissed for want of jurisdiction.

As to relator's seeking issuance of a writ of mandamus directed to the judge of the 181^st District Court, relator must satisfy three requirements to show entitlement to the writ: (1) a legal duty to perform; (2) a demand for performance; and (3) a refusal to act. See Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). A court is not required to consider a motion not called to its attention. Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.App.--Houston [1st Dist.] 1994, writ denied). Even showing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court's attention or presented to the trial court with a request for a ruling. See In re Chavez, 62 S.W.3d 225, 228 (Tex.App.--Amarillo 2001) (orig. proceeding).

Relator does not assert that demand has been made upon the judge of the 181^st District Court for action on the motion referenced, or that the judge has refused to act. Accordingly, the petition for writ of mandamus as to the district judge is denied.

Phil Johnson

Chief Justice

according to that court, jurors are entitled to have the benefit of the defense theory before them so that they can make an informed decision regarding the weight to accord the witness' testimony even though they may ultimately reject the theory. Id. So, for some time now, it has been held that both parties to a criminal proceeding have "great latitude to show any fact which would or might tend to establish ill feeling, bias, motive and animus on the part of [a] witness." (Emphasis added). London v. State, 739 S.W.2d 842, 846 (Tex. Crim. App. 1987); Adair v. State, No. 12-01-0256-CR, 2002 Lexis 3854 at *3-4 (Tex. App.-Tyler, March 22, 2002, no pet.) (not designated for publication) (holding that a defendant is entitled to pursue all avenues of cross-examination reasonably calculated to expose a motive, bias or interest of a witness and may elicit any fact from a witness intended to demonstrate a witness' vulnerable relationship with the State). And, though the trial court's discretion in the area is broad, it is "not without limits." London v. State, 739 S.W.2d at 846.

Next, the desire to expose potential bias often involves a witness testifying while criminal charges pend against him. See e.g. Maxwell v. State, supra (involving a witness who was on "deferred adjudication probation"). Yet, the same considerations exist when someone other than the witness faces criminal prosecution. For instance, it may be the witness' brother, as in London. And, while London dealt with the right of the State to delve into the bias and prejudice of a defense witness, we find its language informative. There, the Court of Criminal Appeals held that the party attempting to elicit the information must establish its relevance. London v. State, 739 S.W.2d at 847. In other words, the question which must be determined is whether there exists a nexus between the criminal problems to which the third party is exposed and the witness' testimony. Id. at 846. And, if such a link exists, then the testimony is relevant and the party should be allowed to develop it for consideration by the factfinder.

Assuming arguendo that the relationship between 1) Jennifer, Clifton, and Novak and 2) the evidence of Novak's circumstance may not have been enough to illustrate the requisite link, that was not the only evidence before the trial court. The latter had also heard the comments of Bradley, Jennifer's cousin, fiancé, and father of her children. Additionally, he admitted that it would be "good for [Novak] if the prosecutor's office [thought he] cooperated" with the State. This response clearly evinces potential motivation for testifying favorably for the State, irrespective of whether he actually was so motivated. And, to this we add the undisputed evidence of both Bradley's familial relationship with Novak's daughter, son and Novak herself. Finally, that there may have been no agreements or deals between the State and Novak regarding her punishment is alone not determinative, according to the Court of Criminal Appeals. Maxwell v. State, 48 S.W.3d at 199, citing Carroll v. State, 916 S.W.2d 494 (Tex. Crim. App. 1996).

In short, the evidence presented to the trial court sufficiently illustrated a link, at the very least, between Bradley's testimony and Novak's pending criminal prosecution. Moreover, while the factfinder may ultimately assign little weight to the evidence of that link, not only was it entitled to hear about it, Maxwell v. State, supra, but also appellant was entitled to present it. Again, both parties must be afforded "great latitude to show any fact which would or might tend to establish ill feeling, bias, motive and animus on the part of [a] witness," even in view of the trial court's broad, yet not unbounded, discretion. (Emphasis added). London v. State, 739 S.W.2d at 846. Consequently, we hold that the trial court erred in refusing to grant appellant the opportunity to cross-examine Bradley, Jennifer, and Clifton (before the factfinder) about their relationship with Novak, her pending criminal prosecution, and its potential effect on their testimony in appellant's trial.

Having found that the trial court erred, we must also determine whether the error was harmful. We conclude that it was since the only evidence of record identifying appellant as the thief came from Bradley, Jennifer, and Clifton; and the State did not deny that. So, to the extent that Bradley acknowledged a potential link between his cooperation with the State at appellant's trial and the outcome of Novak's own criminal prosecution and given the relationship between Bradley, Jennifer, Clifton, and Novak, the jury was denied opportunity to make an informed decision about whether to believe their testimony.

Accordingly, we sustain appellant's issue, reverse the judgment of the trial court and remand the cause for further proceedings.

Brian Quinn

Justice

Publish.

1. The State did not favor this court with a brief.