Foster v. State

LEE ANN DAUPHINOT, Justice.

I must respectfully dissent from the majority’s holding that a trial court may limit cross-examination when the trial court believes that the defense being offered might confuse the jury. The defense was that the arresting officer accused Appellant of assault on a public servant in order to head off an accusation that the officer used excessive force. Appellant was clearly laying the foundation for a showing of bias or motive on the part of the officer in an attempt to impeach his testimony. The first question may not have been artfully phrased, but, I submit, when the State asks a police officer about common police practices, the State is not asking the officer to speculate. Just as lawyers can be asked to testify about common practices among lawyers, for example, the charging of customary and reasonable attorneys’ fees, and narcotics officers can testify about common practices of drug dealers, a police officer can be asked about common practices of police officers. The officer can always answer that he does not know or that it is not a common practice in his experience.

Similarly, the claim that the question about how an officer defends against a claim of excessive force is irrelevant, when the entire defense is that the officer was guilty of using excessive force and arrested Appellant in a pre-emptive effort to avoid a charge against the officer, is incomprehensible. The majority contends that because the complaint had not been filed against the officer, the defense could not argue that the officer had used excessive force. This argument is like saying that a civil defendant cannot claim that the car he rear-ended stopped too suddenly and had no brake fights if the driver of that car did not receive a ticket. Would the civil defendant’s attempts to show fault on the part of the plaintiff be considered “not only irrelevant, but also calculated to confuse the issues and mislead the jury by injecting into the case facts regarding a completely different situation — one in which” the other driver had been charged with stopping too suddenly and having no brake fights?

State’s witnesses often testify about what people “typically” or “commonly” do or which evidentiary clues “typically” or “commonly” indicate that drug dealing is afoot. Trial courts routinely allow this testimony, and appellate courts routinely approve its use.1 Surely the law govern*252ing the admissibility of evidence applies equally to both sides of the bar.

A defendant in a criminal case has to be allowed to put on his defense, and the failure to allow adequate cross-examination denies a defendant that right.2 For these reasons, I must respectfully dissent from the majority’s holding that the trial court did not err by limiting Appellant’s right to establish the foundation for his defense through cross-examination of the arresting officer.

. See, e.g., State v. $11,014.00, 820 S.W.2d 783, 784 (Tex.1991); Guy v. State, 160 S.W.3d 606, 611 (Tex.App.-Fort Worth 2005, pet. ref'd); State v. Delagarza, 158 S.W.3d 25, 28 (Tex.App.-Austin 2005, no pet.).

. Fielder v. State, 756 S.W.2d 309, 319-21 (Tex.Crim.App.1988).