Recer v. State

• Decision Date: 19 December 1991
• Docket Number: No. A14-89-00301-CR,A14-89-00301-CR
• Parties: Sharon Lee RECER, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 715

821 S.W.2d 715

Sharon Lee RECER, Appellant, v. The STATE of Texas, Appellee.

No. A14-89-00301-CR.

Court of Appeals of Texas Houston (14th Dist.).

Dec. 19, 1991.

Jeryl L. Schultz, Houston, for appellant.

Alan Curry, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and JUNELL and DRAUGHN, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

This appeal from a conviction for burglary of a habitation with intent to commit aggravated assault is before us on remand from the court of criminal appeals. In our original opinion, Recer v. State, 785 S.W.2d 430 (Tex.App.--Houston [14th Dist.] 1990), we held that there was sufficient evidence to support appellant's conviction, but that she had been denied effective assistance of counsel during the punishment phase of the trial. The court of criminal appeals reversed our decision concerning the effectiveness of her trial counsel, and remanded the case for review of appellant's contention that her constitutional rights were violated by limitations on the cross-examination of the complaining witness. State of Texas v. Recer, 815 S.W.2d 730 We affirm.

To place the discussion of the remaining point of error in perspective, a brief summary of the incident is necessary. The evidence reveals appellant forced her way into the complainant's home holding her at gunpoint. Appellant also carried a gun, a razor, a hammer, leather gloves, a screwdriver, and a box of matches. Appellant struck the complainant in the head several times with the gun, ordered her to lie down, telling her "[i]t's too late for talking." The women continued to scuffle as the complainant attempted to escape to the parking lot. Several witnesses heard the complainant's screams for help. Witness Lehman testified he saw appellant beating and choking the complainant in the parking lot. The complainant received numerous cuts, bruises, and a broken nose. Appellant admitted she forced her way into the house, that she meant to frighten the complainant, that she struck her across the face with the gun, and that they struggled as the complainant attempted to escape.

Appellant contends her right to confront the complainant was violated by the trial court's restrictions on questioning during cross-examination. Appellant asserts that "the extent and nature of [the complainant's relationship with appellant's husband, Gary] was of paramount importance", and that her counsel was prevented from sufficiently developing the complainant's bias, motive and animus toward appellant.

The State argues that appellant did not preserve this point for review. It contends appellant had to make a bill of exception by either having the complainant answer the specific questions desired, or by posing the questions counsel would have asked and the anticipated responses from the complainant.

The State's reliance on Koehler v. State, 679 S.W.2d 6 (Tex.Crim.App.1984) is misplaced. The Koehler decision distinguished the situation in which a defendant is prevented from generally questioning the State's witness on subject matters that might have shown that she had malice, ill will, bias, prejudice, or animus toward the defendant, from those in which the defendant wants to elicit certain specific responses from the witness and is precluded from doing so. Koehler, 679 S.W.2d at 9. When the issue before an appellate court is whether counsel for appellant was denied the opportunity to question the testimony of the State's witness about a subject that might have affected her credibility before the jury, such as bias or animus, the defendant need not show what the cross-examination of the witness would have affirmatively established to preserve error for review. Id. Rather, she must merely establish on what general subject matter she desired to examine the witness during cross-examination and, if challenged, show on the record why such should be admitted into evidence. Virts v. State, 739 S.W.2d 25, 29 (Tex.Crim.App.1987), citing Koehler, 679 S.W.2d at 9.

Appellant met that burden. The record clearly reflects that appellant's counsel wanted to question the complainant further about the extent of her relationship with appellant's husband to establish bias, ill will, and animus toward appellant, and that the trial court limited that questioning. The issue before us is whether the trial court's limitations were proper.

Great latitude should be allowed the accused in showing any fact that would tend to establish ill feeling, bias, motive and animus on the part of any witness testifying against her. Koehler, 679 S.W.2d at 9. However, the trial court has considerable discretion in determining how and when bias may be proved, and what collateral...