Coleman v. State, 52225

• Decision Date: 26 January 1977
• Docket Number: No. 52225,52225
• Citation: 545 S.W.2d 831
• Parties: Henry COLEMAN, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 831

545 S.W.2d 831

Henry COLEMAN, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 52225.

Court of Criminal Appeals of Texas.

Jan. 26, 1977.

Terry L. Belt, Austin, for appellant.

Joe Carroll, Dist. Atty., Troy C. Hurley, Asst. Dist. Atty., Belton, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of cocaine. The jury assessed punishment at two years' confinement in the Texas Department of Corrections.

Appellant was alleged to have intentionally possessed an unweighable quantity of cocaine: a trace amount. The record reveals that 1/280,000 of an ounce is weighable.

Other than the chemist's testimony, and that of the witness from the Automobile Records Department of Bell County who identified appellant as being the record owner of the vehicle in which he was stopped while driving, the only evidence presented by the State was the testimony of the arresting officer. The officer testified that he stopped appellant at 12:05 a.m. to serve a misdemeanor arrest warrant for gambling. The record reveals that the gambling charge was subsequently dismissed. The officer testified that immediately upon shining the flashlight into the window of appellant's car, a small vial on the floor popped into 'plain view.' The vial was admitted under this doctrine. The unweighable trace amount of cocaine was not introduced into evidence.

Although no other contraband or weapons were found on appellant, and he was voluntarily complying with all of the arresting officer's orders, the officer testified that he contacted several other units of the Killeen Police Department to '(back) me up.' He further testified that he and others examined the small vial and the unweighable trace amount of substance therein had a 'brilliant sparkle to it.' This led him to believe that the substance was cocaine.

The appellant claimed the unweighable trace amount of cocaine was planted on him by the arresting officer. The appellant attempted to support this defense by the testimony of himself and two other defense witnesses to the effect that members of the Killeen Police Department severely disliked him and that this dislike began before the time of his arrest and continued until the day of his trial. In depriving him of the right to show the relationship and the attitude of the Killeen Police Department toward him, the trial court fell into error for two reasons: (1) The appellant had the right to impeach the arresting officer's credibility by showing him to be a past member of a class who has been and will continue to be severely prejudiced against appellant. (2) The appellant had the right to support his defensive theory.

The issue at trial was simply who the jury was going to believe, the appellant or the arresting officer. In excluding the defense's proffered testimony, the trial court not only denied appellant a defensive theory, it denied him the only defense he had.

Appellant's bill of exception on the excluded testimony shows that he would have testified that prior to his trial a Killeen police officer threw a snake in the car he was driving, and such officer later admitted doing this; that he had been charged with carrying firearms, and such charges were dropped; that he had been charged with robbery, and such charges were dropped after he was held for 18 hours; that Killeen police officers had thrown a bomb under his car at one time, which blew up with force sufficient to knock the hubcaps off the car parked next to his at that time; that by virtue of all of these facts and circumstances he was of the opinion that the Killeen Police Department did not like him, and that any member thereof, either past or present, when called to testify against him, would lie because of such bias and prejudice.

Jim Hogan would have testified that he was a friend of the appellant and that the Killeen Police Department had abused appellant's rights previously. Specifically, he would have testified that on one occasion a detective of the Killeen Police Department threw an army simulator bomb under appellant's car, and it exploded with such force that it blew the hubcaps off the car sitting adjacent to appellant's; that the Killeen Police Department in general were antagonistic toward the appellant and that this antagonism would be extended to any witness from the Killeen Police Department testifying against Mr. Coleman.

Had his testimony not been excluded, Bill Williams would have testified for the appellant as follows: He would have stated that he became familiar with the Killeen Police Department when three of its officers framed him by planting 'dope' in his car; that subsequent to that incident the three officers admitted that they had planted the 'dope'; that charges against him resulting from this incident had been dropped; that members of the Killeen Police Department had an antagonistic attitude toward the appellant and that this antagonism would be reflected by biased testimony if they were called to testify against the appellant; that four or five months before the trial the members of the Killeen Police Department threw a bomb under appellant's car; that previously, when appellant first returned to town, three members of the Police Department picked him up on a parking lot and carried him out in the country and pointed a shotgun at his head in an attempt to make him admit things of which he had no knowledge; that at some previous time they arrested appellant for gambling and the charges were subsequently dropped; that they had thrown a snake in appellant's car; that upon arrest for the instant offense members of the Killeen Police Department came into appellant's house, threw him down on the floor, 'kneed' him in the back and stated that they had hoped they would have found him there by himself; that by virtue of all these facts, he was of the opinion that anyone from the Killeen Police Department would be biased in his testimony against the appellant.

The animus, motive, or ill-will of a prosecuting witness who testifies against the defendant is never a collateral or irrelevant inquiry, and the defendant may show by himself, or by others if necessary, why the witness is unfriendly toward him. Kissinger v. State, 126 Tex.Cr.R. 182, 70 S.W.2d 740, 742 (1934). It is not necessary that a predicate be laid that the witness himself is biased toward the defendant before evidence which would create this bias is introduced. Smith v. State, 106 Tex.Cr.R. 202, 291 S.W. 544, 545 (1927). The reasoning behind this rule is simply that great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive and animus upon the part of any witness testifying against him. The jury should be given the opportunity to judge for themselves the witness's credibility in light of his feelings toward the defendant. Wood v. State, 486 S.W.2d 359, 362 (Tex.Cr.App.1972); Minor v. State, 476 S.W.2d 694, 695 (Tex.Cr.App.1972).

This Court allows '. . . legitimate exploration of those matters indicating the friendship or leaning of witnesses, And those associated with them, toward any party or issue involved.' (Emphasis added) Gunn v. State, 95 Tex.Cr.R. 276, 252 S.W. 172, 178 (1922). '. . . (A)ny fact and every fact going or tending to show mental bias, interests, prejudice, or any other motive, or mental state, or status (of the witness), which, fairly considered and construed, might even Remotely tend to affect his credibility, should (be) admitted.' (Emphasis added) Green v. State, 54 Tex.Cr.R. 3, 111 S.W. 933, 935 (1908). 'There can be, w...