Gonzales v. State

• Decision Date: 28 August 1996
• Docket Number: No. 03-95-00143-CR,03-95-00143-CR
• Citation: 929 S.W.2d 546
• Parties: Antonio Mendez GONZALES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 546

929 S.W.2d 546

Antonio Mendez GONZALES, Appellant, v. The STATE of Texas, Appellee.

No. 03-95-00143-CR.

Court of Appeals of Texas Austin.

Aug. 28, 1996.

Rehearing Overruled Oct. 23, 1996.

Christopher P. Morgan, Austin, for Appellant.

Ronald Earle, District Attorney, Matthew B. Devlin, Assistant District Attorney, Austin, for State.

Before JONES, KIDD and B.A. SMITH, JJ.

PER CURIAM.

A jury found appellant guilty of aggravated assault of a police officer. Act of May 22, 1991, 72d Leg., R.S., ch. 334, § 2, 1991 Tex. Gen. Laws 1380, 1381 (Tex. Penal Code Ann. § 22.02(a)(2), since amended). The district court assessed punishment at imprisonment for three years, suspended imposition of sentence, and placed appellant on community supervision.

The Charged Offense

On the morning of September 23, 1993, Rocky Guel got into an argument with Gonzalo Gonzales, his coworker at an Austin radiator shop. According to Guel, Gonzales brandished a knife and threatened him. Guel withdrew and called the police. Austin police officers Scott Gunnlaugsson and Walter Riek were dispatched to the scene. They were met outside the shop by Guel, who told them that a man named Gonzales pulled a knife on him and was at that moment inside the shop.

Gunnlaugsson went inside to investigate while Riek remained outside to question Guel. Gunnlaugsson testified that when he entered the shop he was approached by appellant, who was also an employee of the radiator shop and is Gonzalo Gonzales's son. Gunnlaugsson asked appellant if he was Gonzales. Appellant said he was. Gunnlaugsson told appellant to raise his arms and that he was going to pat him down for weapons. Instead of complying with the officer's order, appellant shoved him with both hands. Gunnlaugsson then seized appellant's arm and tried to gain physical control as appellant resisted. Gonzalo Gonzales and another radiator shop employee, Joel Bellah, grabbed Gunnlaugsson from behind as appellant hit the officer with his fists. Riek came to Gunnlaugsson's aid and after a physical struggle the officers succeeded in subduing the three men.

Appellant was indicted for the aggravated assault of Gunnlaugsson, while Gonzalo Gonzales and Bellah were indicted for the aggravated assault of Riek. The three men were tried together and each testified. According to the defensive testimony, Gunnlaugsson entered the shop, seized appellant, and twisted his arm behind his back. When Gonzalo Gonzales and Bellah tried to explain to the officer that appellant was not the man he was looking for, Riek attacked them with his club. Meanwhile, Gunnlaugsson threw appellant to the floor and began to strike him. The district court's charge included instructions on self-defense generally and on the use of force to resist an arrest or search. See Tex. Penal Code Ann. § 9.31 (West 1994 & Supp.1996). The court also instructed the jury on the circumstances under which a peace officer may use force to effect an arrest. See Tex. Penal Code Ann. § 9.51 (West 1994). The jury found appellant guilty but acquitted Gonzalo Gonzales and Bellah. ¹

The Taylor Incident

Appellant brings forward nine points of error, each relating to the district court's refusal to permit him to cross-examine Gunnlaugsson and offer evidence regarding an unrelated incident in which the officer was involved in August 1994. On that occasion, Gunnlaugsson and his police supervisor, Sergeant Randall Pasley, arrested Charles Taylor for a drug offense after a brief chase. Following the arrest, and while lying on the ground with his hands cuffed behind him, Taylor shouted obscenities at the two police officers. According to Taylor, who is black, Gunnlaugsson told him, "[Y]ou niggers and you Mexicans need to go back where you come from." Gunnlaugsson then kicked Taylor.

Gunnlaugsson admitted kicking Taylor but denied making the racially disparaging remark. Pasley corroborated Gunnlaugsson's testimony, saying that he did not hear Gunnlaugsson make a racial slur. Both Gunnlaugsson and Pasley also testified that after kicking Taylor, Gunnlaugsson looked at Pasley and said, "[S]arge, you didn't see that, did you?" In fact, Pasley did see it and reported the kicking incident to the police department's internal affairs office.

Before the district court, appellant argued that the Taylor incident was admissible to impeach Gunnlaugsson's testimony on the theory that it reflected a racial bias that might cause him to testify untruthfully against appellant. Appellant further argued, with particular reference to Gunnlaugsson's statement to Pasley after kicking Taylor, that the proffered evidence also was relevant to impeach Gunnlaugsson's credibility. The district court found that Taylor's testimony regarding the racial slur was not credible and held that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. Tex.R.Crim. Evid. 403. The court excluded evidence of Gunnlaugsson's statement to Pasley on the authority of Texas Rule of Criminal Evidence 608(b), which provides that the credibility of a witness may not be impeached with evidence of specific conduct that does not result in a criminal conviction. The court did not separately address the admissibility of evidence that Gunnlaugsson kicked Taylor.

In his brief, appellant breaks the Taylor incident into three parts: the racial slur, the kick, and Gunnlaugsson's statement to Pasley. As to each, appellant argues that the court's refusal to permit cross-examination or evidence denied him due process and due course of law and was contrary to the rules of criminal evidence. U.S. Const. amend. XIV; Tex. Const. art. I, §§ 10, 19; Tex.R.Crim. Evid. 610, 612. Appellant makes no effort to demonstrate that the United States and Texas constitutions differ in any relevant respect, a fact he concedes in his brief. Therefore, we will assume for the purpose of this opinion that appellant's rights under the Texas Constitution are comparable to those secured by the United States Constitution. See Morehead v. State, 807 S.W.2d 577, 579 n. 1 (Tex.Crim.App.1991).

Discussion

As part of the Sixth Amendment right to confrontation, a defendant must be given great latitude to show any fact that would tend to establish ill feeling, bias, motive, or animus on the part of a witness testifying against him. Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 1434-35, 89 L.Ed.2d 674 (1986); Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347 (1974); Hurd v. State, 725 S.W.2d 249, 252 (Tex.Crim.App.1987); see Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923 (1965) (Fourteenth Amendment incorporates confrontation right). Our rules of criminal evidence expressly recognize the right to impeach a witness by proof of circumstances or statements showing bias or interest on the part of the witness. Tex.R.Crim. Evid. 612(b). Unlike an attack on a witness's character, which reflects on the witness's truthtelling tendencies generally, an attack concerning bias or interest relates only to the specific litigation or parties. The impeaching party must attempt to show that the witness's attitude is such that he is likely to favor or disfavor a particular litigant's position for reasons unrelated to the merits of the suit. 1 Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal § 613.6 (Texas Practice 2d ed. 1993) (hereafter "Guide to Texas Evidence ").

The rules of evidence grant a party greater latitude to prove a witness's bias than to prove a witness's untruthful character. For the purpose of impeaching his credibility, a witness's character may be attacked by opinion or reputation evidence and by proof of certain criminal convictions. Tex.R.Crim. Evid. 608(a), 609. Other than conviction of a crime, a witness's character for truthfulness may not be impeached by proof of specific instances of conduct. Tex.R.Crim. Evid. 608(b). Rule 608(b) is very restrictive and allows for no exceptions. Ramirez v. State, 802 S.W.2d 674, 676 (Tex.Crim.App.1990). Rule 612, by contrast, places no limits on the sort of evidence that may be adduced to show a witness's bias or interest. Evidence of bias or interest covers a wide range, and the field of external circumstances from which probable bias or interest may be inferred is infinite. Jackson v. State, 482 S.W.2d 864, 868 (Tex.Crim.App.1972) (quoting Aetna Ins. Co. v. Paddock 301 F.2d 807, 812 (5th Cir.1962)).

"You didn't see that."

The district court did not err by prohibiting questioning or evidence regarding Gunnlaugsson's "you didn't see that" statement to Pasley after he kicked Taylor. Appellant argued before the district court that this evidence showed that Gunnlaugsson "was willing to try to cover up the facts, to try to misinform the record ... and to basically not tell the truth, Judge. Another way of saying that is to lie. It goes directly to his credibility." While Gunnlaugsson's statement to Pasley may reflect negatively on his truthful character, the district court correctly ruled that the use of this specific instance of conduct as character evidence was prohibited by rule 608(b).

Appellant argues that his constitutional confrontation right creates an exception to rule 608(b). The authorities on which appellant bases this argument do not support it. To the contrary, they recognize that specific acts of conduct are not admissible to impeach a witness's character for truthfulness, and hold only that such conduct evidence is admissible to show a witness's bias or interest. See Moody v. State, 827 S.W.2d 875, 891 (Tex.Crim.App.1992) (while there are no exceptions to rule 608(b), constitutional confrontation right includes opportunity to expose witness's motivation in testifying); Thomas v. State, 897 S.W.2d 539, 542 (Tex.App.--Fort Worth 1995, no pet.) (while evidence of...