Murdock v. State

BLEIL, Justice,

dissenting.

The majority correctly concludes that the trial court erred in denying Murdock’s attorney the right to fully cross-examine Nadir Shah, the principal prosecution witness, about his motives to testify against Mur-dock. The test for harmless error is found in Tex.R.App.P. 81(b)(2). Given the existence of error, the first of three progressive steps is taken; the second step obligates an appellate court to reverse the *572judgment; the third obviates the necessity of reversing the judgment only if the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or punishment. Mallory v. State, 752 S.W.2d 566, 569, 570 (Tex.Crim.App.1988); see Norton v. State, 771 S.W.2d 160, 169 (Tex.App.-Texarkana 1989, pet. ref’d) (Bleil, J., concurring). The trial court’s error thus requires reversal unless we determine beyond a reasonable doubt that the error made no contribution to the conviction or punishment.

The State’s entire case against Murdock is grounded on the testimony of Shah, an illegal alien from Pakistan who is awaiting deportation. Shah admitted various drug-related offenses and testified that he had picked up and delivered drugs for Murdock in the past. In connection with the offense that Murdock was being tried for, Shah previously had pled guilty to aggravated possession of cocaine and illegal investment and was to be sentenced for those convictions after he testified in this case. This evidence, that Shah was awaiting sentencing, is always admissible to show a possible motive for testifying for the State. See Miller v. State, 741 S.W.2d 382, 389 (Tex.Crim.App.1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2835, 100 L.Ed.2d 935 (1988). The trial court allowed this evidence to go to the jury. Another area which may have shown further motive to testify concerned another offense.

A few days before Murdock’s trial began, Shah was arrested for delivery of cocaine on March 10, 1991. At this trial, Murdock’s attorney wanted to cross-examine Shah about this arrest, the status of those charges and, in connection with those charges, a further interest in giving testimony favorable to the State in this trial. Murdock’s attorney argues that he should have been able to elicit reasons why Shah might be motivated to testify for the State or to elicit Shah’s denial — which was given in a hearing from which the jury was excluded — that he had any “deal” whatsoever with the prosecution. The latter matter Murdock’s attorney refers to is his right to obtain an “incredible denial” from the witness. Thus equipped, Murdock’s attorney claims that he would be better able to portray the witness as a liar before the jury. By our decision, we agree that the trial court erred in not allowing cross-examination of Shah about the drug offense Shah committed just before trial and, as a result, any further motivations for giving testimony favorable to the State.

Shah’s credibility and motives to testify in this prosecution are absolutely critical. He is the only witness to connect Murdock with the criminal offense charged. The fact that Shah delivered cocaine on the eve of trial would have indicated that, even though he had been cooperating with the State from 1989 to 1991 concerning Mur-dock’s case, he was not exactly the rehabilitated prosecution witness he might otherwise have appeared to be. This may have raised some additional doubt about his motives to testify (hope for further leniency) and his credibility.

The erroneously denied cross-examination may have been just another chink in the armor of the State’s case, or it might have been the fatal flaw, or the coup de grace, which would have tipped the scales in favor of Murdock. In any instance, I cannot conclude, as does the majority, that, beyond a reasonable doubt, this made no difference. I cannot agree with the majority that the trial court’s error beyond a reasonable doubt made no contribution to the conviction or the punishment as required by Tex.R.App.P. 81(b)(2). Therefore, I dissent.