NO. 07-04-0396-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 4, 2005 ______________________________
STEPHEN SMITH,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE COUNTY COURT AT LAW NO. 2 OF SMITH COUNTY;
NO. 002-83734-03; HON. RANDALL LEE ROGERS, PRESIDING _______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
Stephen Smith (appellant) appeals his conviction for theft. His sole issue involves
the refusal of the trial court to allow him to question three State witnesses about possible
bias favoring the State.1 We reverse the judgment.
As previously mentioned, appellant was being tried for theft. He purportedly stole
a display case containing pseudoephedrine from the Karr Express convenience store.
According to the appellate record, the store clerk could not identify him as the culprit. Nor
could anyone else identify the thief save for three individuals, Bradley Smith (a relative and
1 The State did no t favor th is cou rt with a brief. acquaintance of appellant), his fiancé Jennifer Carping, and Jennifer’s brother Clifton
Carping. The three allegedly had ridden in a car with appellant to the convenience store
and saw him leave with the stolen merchandise. So too were they related to or in the
process of becoming related to Melissa Novak. Jennifer and Clifton were the children of
Novak while Bradley was engaged to marry Jennifer (who was also his cousin and mother
of his children). Moreover, the State had recently convicted Novak of possessing a
controlled substance, and she awaited sentencing during the time of appellant’s trial.
Next, when appellant made effort to question the three witnesses about their
relationship to Novak, her circumstances, and the influence, if any, those matters had on
their testimony, the State objected. The objections were considered by the trial court
outside the presence of the jury. Furthermore, the trial court permitted appellant to ask
questions to the witnesses for purposes of determining whether their testimony was
relevant to show bias or prejudice favoring the State. While both Jennifer and Clifton
unequivocally denied any relationship between their testimony and their mother’s situation,
Bradley did not. Instead, when asked, “. . . [D]on’t you think it would be good for [Novak]
if the prosecutor’s office thinks you cooperated,” he answered, “[Y]es, sir.” Despite this
response, the trial court sustained the prosecutor’s objections and barred appellant from
broaching the subject before the jury.
Our Court of Criminal Appeals has recognized that the exposure of a witness’
motivation in testifying is a proper and important function of the constitutionally protected
right of cross-examination. Maxwell v. State, 48 S.W.3d 196, 199 (Tex. Crim. App. 2001),
citing Davis v. Alaska, 415 U. S. 308, 94 S.Ct. 1105, 39 L. Ed.2d 347 (1974). Furthermore,
according to that court, jurors are entitled to have the benefit of the defense theory before
2 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
3 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
4 Clifton (before the factfinder) about their relationship with Novak, her pending criminal
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NO. 07-04-0396-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 4, 2005 ______________________________
STEPHEN SMITH,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE COUNTY COURT AT LAW NO. 2 OF SMITH COUNTY;
NO. 002-83734-03; HON. RANDALL LEE ROGERS, PRESIDING _______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
Stephen Smith (appellant) appeals his conviction for theft. His sole issue involves
the refusal of the trial court to allow him to question three State witnesses about possible
bias favoring the State.1 We reverse the judgment.
As previously mentioned, appellant was being tried for theft. He purportedly stole
a display case containing pseudoephedrine from the Karr Express convenience store.
According to the appellate record, the store clerk could not identify him as the culprit. Nor
could anyone else identify the thief save for three individuals, Bradley Smith (a relative and
1 The State did no t favor th is cou rt with a brief. acquaintance of appellant), his fiancé Jennifer Carping, and Jennifer’s brother Clifton
Carping. The three allegedly had ridden in a car with appellant to the convenience store
and saw him leave with the stolen merchandise. So too were they related to or in the
process of becoming related to Melissa Novak. Jennifer and Clifton were the children of
Novak while Bradley was engaged to marry Jennifer (who was also his cousin and mother
of his children). Moreover, the State had recently convicted Novak of possessing a
controlled substance, and she awaited sentencing during the time of appellant’s trial.
Next, when appellant made effort to question the three witnesses about their
relationship to Novak, her circumstances, and the influence, if any, those matters had on
their testimony, the State objected. The objections were considered by the trial court
outside the presence of the jury. Furthermore, the trial court permitted appellant to ask
questions to the witnesses for purposes of determining whether their testimony was
relevant to show bias or prejudice favoring the State. While both Jennifer and Clifton
unequivocally denied any relationship between their testimony and their mother’s situation,
Bradley did not. Instead, when asked, “. . . [D]on’t you think it would be good for [Novak]
if the prosecutor’s office thinks you cooperated,” he answered, “[Y]es, sir.” Despite this
response, the trial court sustained the prosecutor’s objections and barred appellant from
broaching the subject before the jury.
Our Court of Criminal Appeals has recognized that the exposure of a witness’
motivation in testifying is a proper and important function of the constitutionally protected
right of cross-examination. Maxwell v. State, 48 S.W.3d 196, 199 (Tex. Crim. App. 2001),
citing Davis v. Alaska, 415 U. S. 308, 94 S.Ct. 1105, 39 L. Ed.2d 347 (1974). Furthermore,
according to that court, jurors are entitled to have the benefit of the defense theory before
2 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
3 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
4 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.