Thomas Stults v. the State of Texas

• Decision Date: 06 July 2000
• Parties: <!--23 S.W.3d 198 (Tex.App.-Houston 2000) THOMAS STULTS, Appellant V. THE STATE OF TEXAS, Appellee NO. 14-98-01314-CR In The Fourteenth Court of Appeals
• Court: Texas Court of Appeals

Page 198

23 S.W.3d 198 (Tex.App.-Houston [14th Dist.] 2000)

THOMAS STULTS, Appellant

V.

THE STATE OF TEXAS, Appellee

NO. 14-98-01314-CR

In The Fourteenth Court of Appeals

July 6, 2000.

On Appeal from the County Criminal Court at Law No. Two Harris County, Texas Trial Court Cause No. 98-18725

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices Amidei, Anderson, and Frost.

SUBSTITUTE OPINION

Kem Thompson Frost, Justice

The appellant's motion for rehearing is denied. The panel's opinion of May 4, 2000, is withdrawn, and this opinion is issued in its place.

Introduction

The appellant, Thomas Stults, challenges his conviction on one count of terroristic threat. In three points of error, he claims: (1) the trial court erred in refusing to allow adequate cross-examination of the complainant as to her ongoing fear of the appellant; (2) the trial court erred in overruling various motions before and during trial; and (3) the appellant received ineffective assistance of counsel. We overrule these points of error and affirm the judgment of the trial court.

Factual Background

Thomas Stults, the appellant, and Mary Geary, the complainant, were married in September 1990, and divorced in January 1997. For a brief period of time, they reconciled, and the appellant moved back into the complainant's house. In April 1998, however, the complainant decided the reconciliation was not working and asked the appellant to move out by April 7th. On April 7th, the complainant returned home from work to find the appellant in her home. When the complainant asked the appellant to leave, he became angry, and they began to argue. During the course of the argument, the appellant shoved the complainant onto the bed and told her that he was going to see that "this is over once and for all." He jerked open the nightstand drawer, pulled out a loaded pistol, and left the house. The complainant heard the gun discharge and thought the appellant had killed himself. She called the police, and while she was on the phone, the appellant appeared, telling her, "It's a good thing you called somebody to come save you, help you, rescue you . . . before I kill you." He then told the complainant that if she wanted to mess up his life, she should call the police and "end up like Nicole Simpson." Frightened, the complainant left the house, taking the portable telephone with her, and called for help.

Sergeant Gary Latham, a Harris County constable, arrived at the complainant's home a short time latter. He found the complainant upset, distraught, and afraid. The complainant explained to Sergeant Latham what had happened and told him of her fears of being injured or killed. The complainant also told the constable that she was concerned the appellant might injure or kill himself. Sergeant Latham then talked to the appellant, who said he was tired of the problems between the complainant and himself. The appellant explained to the constable that the complainant had asked him to leave the house and that he was upset, "it was wrong,"¹ and no one had been hurt. The appellant admitted to the constable that he had fired the gun and that the gun was in a locked car at the home. Sergeant Latham testified that after he obtained permission from the appellant to retrieve the weapon, he spoke to his fellow officer, Deputy Uilkie,² who obtained the car keys from the complainant, unlocked the car, and retrieved the gun.

Charged with one count of making a terroristic threat,³ the appellant was tried before a jury and found guilty. The trial court assessed punishment at 180 days in the Harris County Jail, probated over eighteen months. The appellant filed a motion for new trial, which the trial court denied.

Limitations on Cross-Examination of Complainant

In his first point of error, the appellant contends the trial court erred in refusing to allow him adequate cross-examination of the complainant concerning her ongoing fear of the appellant. The trial court limited cross-examination by: (1) disallowing further questions on specific meetings between the appellant and the complainant after the incident, and (2) disallowing questioning on why the complainant continued to associate with the appellant if she was afraid of him. The State claims that the appellant did not preserve this point of error for appellate review. We disagree.

When the trial court prevents a defendant from eliciting certain specific responses from a State's witness, defense counsel preserves error by either (1) calling the witness to the stand outside the presence of the jury and having the witness answer specific questions or (2) making an offer of proof on questions he would have asked and answers he might have received. See Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim. App. 1984); Jefferson v. State, 900 S.W.2d 97, 100 (Tex. App.-- Houston [14th Dist.] 1995, no pet.). However, when the trial court denies a defendant the opportunity to question a witness for the State in the presence of the jury about an entire subject matter that might have shown she lacked credibility, such as malice, ill will, motive, or bias, defense counsel preserves error by stating the subjects on which he intends to question the witness. See Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987); see also Recer v. State, 821 S.W.2d 715, 717 (Tex. App.--Houston [14th Dist.] 1991, no pt.) (finding the appellant preserved error when the record clearly showed that the appellant's counsel wanted to question the complainant further about the extent of the complainant's relationship with the appellant's husband to establish bias, ill will, and animus towards the appellant). In this case, the appellant wanted to demonstrate that the complainant was not afraid of him by showing that after the incident in April 1998, the two of them continued to engage in ongoing communications and meetings. The record clearly reflects that the appellant's counsel wanted to question the complainant further about her ongoing fear of the appellant in order to establish motive, bias, or self-interest in calling the police and that the trial court limited that questioning. We find the appellant has preserved this point of error for review.

Turning to the merits of the appellant's claim, we review a trial court's decision to exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991) (op. on reh'g).

The confrontation clause of the United States Constitution guarantees a defendant the right to cross-examine witnesses. See U.S. Const. Amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986); Carroll v. State, 916 S.W.2d 494, 496-97 (Tex. Crim. App. 1996). A defendant may cross-examine a witness on any subject reasonably calculated to attack her credibility, such as exposing a motive, bias, or interest. See Carroll, 916 S.W.2d at 498. "However, the trial court has considerable discretion in determining how and when bias may be proved, and what collateral evidence is material for that purpose." Recer, 821 S.W.2d at 717 (citing Green v. State, 676 S.W.2d 359, 363 (Tex. Crim. App. 1984)). The court has the discretion to limit the scope of cross examination "to avoid, inter alia, harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence." Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App. 1997). This limitation does not violate the accused's right to confront a witness as long as (1) the possible bias and motive of the State's witness is clear to the trier of fact and (2) the accused has otherwise been afforded an opportunity for a thorough and effective cross-examination. See Carmona v. State, 698 S.W.2d 100, 104 (Tex. Crim. App. 1985); Recer, 821 S.W.2d at 718 (citations omitted). In Recer, the trial court limited questions to the complainant after defense counsel tried to question her about specific conversations and conduct with the appellant's husband that occurred well before and long after the offense; this limitation was reasonable because the extent of the relationship between the complainant and the appellant's husband had already been well established for the jury. 821 S.W.2d at 717-18.

In this case, as in Recer, the appellant's counsel already had made the possible bias and motive of the complainant clear to the jury. The trial court afforded the defense an opportunity for a thorough and effective cross-examination of the complainant. It is well established in the record that the appellant and the complainant saw each other several times after the incident in April 1998. The complainant admitted to seeing the appellant six times in person. She also exchanged numerous telephone calls and electronic mail messages with the appellant. At trial, the appellant's counsel questioned the complainant in detail about the specific times she had been alone with the appellant. The complainant gave detailed accounts of her post-April 1998 encounters with the appellant, stating that she had met him at a shopping mall to talk, that she had bought him dinner at a restaurant, and that he had come by her house, with her consent, on at least one occasion after his arrest for the April 1998 incident. The trial court limited cross-examination by disallowing further questions on specific meetings with the appellant that occurred after the incident because it had already been established that the complainant had seen the appellant since the incident. The trial court properly ruled such testimony was irrelevant and repetitive.

The trial court also limited cross-examination by disallowing appellant's counsel's questioning of the complainant as to why the complainant continued to...