Montemayor v. State

• Decision Date: 10 March 1976
• Docket Number: No. 50732,50732
• Citation: 543 S.W.2d 93
• Parties: Jose MONTEMAYOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 93

543 S.W.2d 93

Jose MONTEMAYOR, Appellant, v. The STATE of Texas, Appellee.

No. 50732.

Court of Criminal Appeals of Texas.

March 10, 1976.

On Rehearing Oct. 27, 1976.

W. J. Sames, Eagle Pass, for appellant.

John F. Pettit, Dist. Atty. and Benjamin A. Martinez, Asst. Dist. Atty., Del Rio, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from a conviction for aggravated assault upon a peace officer, V.T.C.A. Penal Code Sec. 22.02(a)(2). Punishment was assessed by the court at confinement for two years and a fine of one thousand dollars.

The judgment must be reversed because the trial court erroneously excluded rebuttal evidence offered by the appellant.

A lengthy recitation of the facts is not necessary. This prosecution arose out of two fights between appellant and the complaining witness, Deputy Sheriff Alfredo Menchaca. Both occurred during booking procedures at the Maverick County jail.

There were four witnesses to the outbreak of hostilities. Menchaca and another deputy sheriff testified that appellant without provocation attacked Menchaca. Appellant and his mother testified that Menchaca without provocation or warning suddenly charged appellant in an attacking manner, and that appellant swung at the officer in self-defense. The record is in similar dispute as to the identity of the aggressor in a second fight occurring a few minutes later.

Appellant's defense was predicated upon a theory of self-defense codified in the new Penal Code. V.T.C.A. Penal Code Sec. 9.31(a). ¹

Appellant testified that he had known Menchaca for about four years and that there was ill will between the two. He said he feared Menchaca, and that he was afraid Menchaca would beat him. His fears were justified, he said, when Menchaca twice assaulted him on the day of the alleged offense.

Appellant's attorney tried to elicit evidence supportive of his theory of the case while cross-examining Menchaca. In the course of this cross-examination Menchaca admitted that he knew one Oscar Antu, but categorically denied that he had ever been involved in any fight with Antu.

Later, appellant's attorney called Antu to testify. The record reflects by examination of the witness outside the presence of the jury that Antu would have testified that deputy Menchaca without provocation had beaten him in the Maverick County jail.

The trial court erred in excluding this testimony. It is fundamental that when a witness in a criminal case testifies about a specific fact or event, and that fact or event is more than a very minor detail of his testimony, then the opposing side may present evidence to rebut the testimony. Such impeachment goes directly to the credibility of the witness, a factor that in many cases may critically affect the outcome of the prosecution. E.g., Daley v. State, Tex.Cr.App., 491 S.W.2d 932; Simons v. State, 167 Tex.Cr.R. 15, 317 S.W.2d 740; Freeman v. State, 166 Tex.Cr.R. 626, 317 S.W.2d 726; Redding v. State, 161 Tex.Cr.R. 53, 274 S.W.2d 712 (on motion for rehearing). The right to impeach the prosecution's witnesses is also one aspect of the Sixth Amendment right of confrontation. See, e.g., Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Napue v Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

Nor can we conclude that the error was harmless. The question of guilt was fiercely contested and hinged primarily upon the relative credibility of the witnesses. Moreover, the point upon which appellant sought to impeach the complaining witness was critical to his entire defense.

For failure of the trial court to allow appellant to impeach the testimony of the complaining witness, the judgment is reversed and the cause is remanded.

DOUGLAS, Judge (dissenting).

The majority reverses this conviction because the trial court excluded the testimony by defense witness Oscar Antu on the ground '. . . that when a witness in a criminal case testifies about a specific fact or event, and that fact or event is more than a very minor detail of his testimony, then the opposing side may present evidence to rebut the testimony. Such impeachment goes directly to the credibility of the witness, a factor that in many cases may critically affect the outcome of the prosecution.'

Appellant was taken to jail because a federal warrant had been issued for his arrest. He was at the jail when he hit the officer. On Cross-examination defense counsel asked Deputy Menchaca if he had beaten Antu. The court excluded Antu's testimony on the basis that it was not relevant nor did it have any connection with the case at bar. Appellant, outside the presence of the jury, then developed the following bill of exception:

'Q. (Mr. Sames, Defense Counsel): I'll start from the beginning. State your name.

'A. Oscar Antu.

'Q. Mr. Antu, have you ever been beaten in the Maverick County Jail?

'A. Yes, sir.

'Q. Have you ever been beaten by Deputy Sheriff Santoya in the Maverick County Jail?

'A. No, sir.

'Q. Was Deputy Santoya present when you were beaten by Deputy Sheriff Menchaca in the Maverick County Jail?

'A. Yes, sir.

'Q. Did you do anything to provoke this beating, that you know of?

'A. No, sir.

'MR. SAMES: No further questions.

'THE COURT: All right. The Court's ruling will stand; this testimony will be excluded. You have your Bill. This is all you have from this witness?

'MR. SAMES: Yes.'

As pointed out in the majority's opinion, appellant's defense was predicated upon a theory of self-defense. The only evidence in this record to support this theory is the testimony of the appellant and his mother, Blanco Montemayor, and that of the mother is less than supportive of appellant's theory. In fact, appellant's own testimony disproves his own theory of self-defense as he admits that he struck Deputy Menchaca first and, from the evidence, without provocation. Deputy Menchaca did not threaten to hit nor hit the appellant. Appellant testified on direct examination:

'Q. All right. What was the nature of the conversation you had immediately after all of you got inside the jail?

'A. They said they had an order for arrest for me, and they were looking all in the drawers for it, I guess. I don't know what they were looking for. Then they told me they didn't have that order for arrest, and they had to call San Antonio. And at that time, that's when Deputy Menchaca started yelling at me.

'Q. What was he yelling at you, Joe?

'A. I can't remember. I heard him yelling at me, you know.

'Q. Did you say anything back to him, Joe?

'A. All I said was, you know I talked, but I didn't finish saying anything when he came right at me. I don't know if he was going to hit me, but he was charging me, and that's when I hit him. (Emphasis supplied)

'Q. You hit him?

'A. Once.

'Q. Did you feel he was going to attack you at that time?

'A. Yes, sir. He did attack me. He was coming at me, and I don't know for what other reason he was. He was not walking, he was charging at me.

'Q. Did you mother do anything about this?

'A. I don't think she had time to react or anything.

'Q. Was Mr. Menchaca on the other side of your mother from you?

'A. Yes, sir.

'Q. In other words this is where you were; this is where your mother was, and this is where Mr. Menchaca was? (Indicating)

'A. Yes, sir.

'Q. And when you were in those positions there, would you describe again what happened?

'A. That's when Menchaca came at me. I saw him coming and that's when I hit him, because I thought he was going to hit me. After that, Cortez grabbed me and Menchaca was going for the hair, and my mother was trying to get Menchaca off me. Then they put me in the cell, and after that they told my mother she had to leave.'

He further testified that he was not injured during the first fracas that occurred:

'Q. Were you injured in that fracas, or that fight?

'A. No, sir.

'Q. You were not injured?

'A. No.'

With regard to the second fight, it is evident again that the appellant struck the first blow. As the appellant continued on direct as follows:

'Q. How long did you stay in that cell, Joe?

'A. For about 20 minutes.

'Q. Then what happened after this 20 minutes?

'A. Then they called me out and gave me the order of arrest, the number for the order of arrest, and told me what the bond was. This was Cortez. Cortez was telling me this; telling me to take everything out of my pockets. I took everything out of my pockets and put it on the table, the desk, and then Menchaca--well, after this I asked 'What are the charges?', and at the same time Menchaca asked me to take off my belt. I said 'First, let Cortez tell me the charges'. That's when he came at me and I hit him. I was going to hit him again, but Cortez grabbed me. He was hitting me there and--' (Emphasis supplied)

Nowhere does the appellant use the words 'attacking manner'; he simply states that Menchaca was 'charging' at him without clarification. When his attorney questioned him as to his reason for believing he might be attacked, the following transpired:

'Q. Joe, you mentioned you were trying to defend yourself. Did you have any reason to believe that Mr. Menchaca might try to attack you while you were there?

'A. Yes, sir.

'Q. Could you tell me what that reason is?

'A. Because I had heard how he--

'THE COURT: No, now let's not get into that--

'BY MR. SAMES:

'Q. Joe, were you afraid of Mr. Menchaca at that time?

'A. No, sir. (Emphasis Supplied)

'Q. Was there anything about the way he came after you that gave you reason to believe he might hurt you?

'A. Yes, sir. The first time he attacked me, so I thought he would do the same thing.

'Q. So then they let you sit down. Did you sit down in a chair there?

'A. Yes, sir.

'Q. Was there any more fighting after that?

'A. No, sir.'

From an analysis of the foregoing portions of the appellant's testimony, it is apparent that appellant hit Deputy Menchaca without provocation during the first fight and then attempts...