Shelby v. State

• Decision Date: 13 November 1991
• Docket Number: No. 1211-90,1211-90
• Parties: Perry Joe SHELBY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 544

819 S.W.2d 544

Perry Joe SHELBY, Appellant, v. The STATE of Texas, Appellee.

No. 1211-90.

Court of Criminal Appeals of Texas En Banc.

Nov. 13, 1991.

Robert A. Morrow (Court-appointed on appeal), Houston, for appellant; Janet Seymour Morrow, of counsel).

John B. Holmes, Jr., Dist. Atty., and Linda A. West, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of aggravated sexual assault. Tex.Penal Code Ann. § 22.021. The trial court assessed punishment at thirty-five years confinement. Tex.Penal Code Ann. § 12.42(c). The Court of Appeals affirmed in an unpublished opinion. Shelby v. State, No. B14-85-842-CR, 1987 WL 8788 (Tex.App.--Houston [14th Dist.] delivered April 2, 1987) (Not published). We granted appellant's petition for discretionary review, and, in an unpublished opinion, reversed the judgment of the Court of Appeals and remanded the case to the Court of Appeals with instructions to perform a harmless error analysis. Shelby v. State, No. 491-87 (Tex.Cr.App. delivered January 24, 1990) (Not published) [819 S.W.2d 478 (table) ]. On remand, the Court of Appeals again affirmed the judgment of the trial court. Shelby v. State, 800 S.W.2d 584 (Tex.App.--Houston [14th Dist.] 1990). We granted appellant's subsequent petition for discretionary review. We will reverse.

I. PREVIOUS OPINIONS

While the initial opinions of the Court of Appeals and this Court were not published, they are important to understand the issue presented. On direct appeal appellant raised two points of error relating to the testimony of the complainant's mother. In his first point, appellant argued the trial court improperly limited his cross-examination of the complainant's mother. Specifically, appellant sought to cross-examine the complainant's mother regarding a pending lawsuit seeking $125,000.00 in damages against the owners of the apartment complex where the alleged incident occurred. ¹ The Court of Appeals held appellant's bill of exception was insufficient to establish the relationship between the lawsuit and the offense and, therefore, the record did not demonstrate an abuse of discretion on the part of the trial court. Shelby v. State, No. B14-85-842-CR (Tex.App.--Houston [14th Dist.] April 2, 1987) (Not published). Slip op. at 2.

On appellant's petition for discretionary review we held that it was "apparent from the record that the appellant wanted to question [the complainant's mother] about a lawsuit she brought two months after she reported the offense to the police against the appellant and the corporate owners of the property. It defies both reason and logic to argue that the trial court did not understand the purpose or scope of the inquiry." Shelby v. State, No. 491-87 (Tex.Cr.App. delivered January 24, 1990) (Not published). Slip op. at 4.

Additionally, we found the trial court erred by improperly limiting the scope of appellant's cross-examination of the complainant's mother. Finally, we held that the improper limitation of cross-examination was subject to a harmless error analysis and remanded the case to the Court of Appeals for such an analysis. Shelby v. State, No. 491-87 (Tex.Cr.App. delivered January 24, 1990) (Not published). Slip op. at 5.

On remand, the Court of Appeals concluded the erroneous limitation of the cross-examination was harmless and affirmed the judgment of the trial court. Shelby v. State, 800 S.W.2d at 587.

We granted appellant's second petition for discretionary review to determine whether the harmless error analysis performed by the Court of Appeals was correct, and if the analysis was incorrect, what analysis should be employed. ²

II. THE CONFRONTATION CLAUSE AND VAN ARSDALL

The Confrontation Clause of the Sixth Amendment of the United States Constitution guarantees the right of an accused "to be confronted with the witnesses against him." The primary interest secured by the Confrontation Clause is the right of cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). The Sixth Amendment's right of confrontation is a fundamental right and is applicable to the States by virtue of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).

In Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) the defendant was denied the right to cross-examine witness Fleetwood on the issue of possible bias after the State had dismissed a criminal charge against Fleetwood in exchange for Fleetwood's promise to discuss the State's case against the defendant. Id., 106 S.Ct. at 1434. The Supreme Court of Delaware held that a blanket prohibition against exploring potential bias through cross-examination was per se reversible error so that the actual impact of such error need not be subject to a harmless error analysis. Id.

The United States Supreme Court reviewed the decision of the Delaware Supreme Court and initially addressed the threshold question of how to determine when the Confrontation Clause has been violated. In Van Arsdall the State argued for an "outcome determinative" analysis that "unless the particular limitation on cross-examination created a reasonable possibility that the jury returned an inaccurate guilty verdict, that limitation would not violate the Confrontation Clause." Van Arsdall, 106 S.Ct. at 1435. The Court expressly rejected the State's argument and held:

... While some constitutional claims by their nature require a showing of prejudice with respect to the trial as a whole, see, e.g., Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (ineffective assistance of counsel), the focus of the Confrontation Clause is on individual witnesses. Accordingly, the focus of the prejudice inquiry in determining whether the confrontation right has been violated must be on the particular witness, not on the outcome of the entire trial. It would be a contradiction in terms to conclude that a defendant denied any opportunity to cross-examine the witnesses against him nonetheless had been afforded his right to "confront[ation]" because use of that right would not have affected the jury's verdict. We think that a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby "to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness." Davis v. Alaska [415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347], [citation omitted]. Respondent has met that burden here: A reasonable jury might have received a significantly different impression of Fleetwood's credibility had respondent's counsel been permitted to pursue his proposed line of cross-examination. ³

Van Arsdall, 106 S.Ct. at 1435-1436.

After finding a violation of the Confrontation Clause, the Court turned to whether such a violation was per se reversible error or whether the violation was subject to a harmless error analysis. The Court determined that, like other federal constitutional errors, a violation of the Confrontation Clause is subject to a harmless error analysis. Van Arsdall, 106 S.Ct. at 1438.

However, since a violation of the right to cross-examination under the Confrontation Clause necessarily means the testimony was not permitted before the fact finder, the Court was called upon to develop a harmless error analysis where evidence had been excluded. The Court established a three prong analysis for reviewing courts. First, assume that the damaging potential of the cross-examination were fully realized. Van Arsdall, 106 S.Ct. at 1438. Second, with that assumption in mind, review the error in connection with the following factors:

1) The importance of the witness' testimony in the prosecution's case;

2) Whether the testimony was cumulative;

3) The presence or absence of evidence corroborating or contradicting the testimony of the witness on material points;

4) The extent of cross-examination otherwise permitted; and,

5) The overall strength of the prosecution's case.

Van Arsdall, 106 S.Ct. at 1438.

Finally, in light of the first two prongs, determine if the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Van Arsdall, 106 S.Ct. at 1438. The Supreme Court then remanded the case to the Delaware Supreme Court to perform a harmless error analysis.

III. THE HARMLESS ERROR ANALYSIS BY THE COURT OF APPEALS

As previously noted, we found the trial court erred by improperly limiting the scope of appellant's cross-examination of the complainant's mother and we remanded the case to the Court of Appeals to perform a harmless error analysis. Therefore, the first issue before us today is to determine whether the harmless error analysis performed by the Court of Appeals was correct. The Court of Appeals began its harmless error analysis correctly by relying on Van Arsdall. Shelby v. State, 800 S.W.2d at 585. The Court then listed seven factors "to be considered whether a rational trier of fact might have reached a different result." Shelby, 800 S.W.2d at 586. The Court of Appeals analyzed those seven factors in relation to the record and concluded the error made no contribution to appellant's conviction. Shelby, 800 S.W.2d at 587.

The analysis by the Court of Appeals is flawed in at least two respects. First, by considering the factors to determine whether the jury might have reached a "different result" is to employ the "outcome determinative" analysis expressly rejected by the Supreme Court. Van Arsdall, 106 S.Ct. at 1435. Second, the factors listed by the Court of Appeals and attributed to Van Arsdall are...