Jackson v. State

ROBERTS, Judge,

dissenting.

The majority overrules appellant’s motion for rehearing. I would grant the motion and reverse.

On original submission appellant’s voluntary manslaughter conviction was affirmed. The principal issue in the case is the extent of appellant’s right to show the bias and prejudice of the State’s main witness.

The evidence was summarized in detail in the court’s opinion on original submission. Briefly, however, the State’s evidence, which came principally from Mary Frances Kusenberger, was as follows: Mary Frances was the mother of two girls, Lola Jean and Connie, when she met and married the appellant. According to Mary Frances, the appellant began beating the children in early December, 1973, when appellant’s money ran out. At that time Lola Jean was four years old and Connie was two.

According to Mary Frances, this mistreatment reached its peak on January 5, 1974, *806at appellant’s brother’s house. There, in order to punish Connie, appellant slammed a door against the child, threw her to the floor, threw a shoe at her and hit her on the head with it, and whipped her severely with his belt between her legs and on her stomach and arms.

Mary Frances’s testimony was that appellant then refused to allow her to take Connie to a hospital. She also testified that during the next few days she was unable to get away from appellant long enough to get help for Connie. Mary Frances also stated that she was afraid of appellant.

On January 9, 1974, Connie stopped breathing. Appellant and Mary Frances took her to a hospital, where doctors determined that she was dead.

Appellant and Mary Frances first told a physician at the hospital that Connie’s injuries had been caused by a fall from a moving truck several days before. Subsequently, Mary Frances asked to be taken to a separate room, where she told a nurse that Connie’s death had in fact been caused by appellant’s having beaten the child.

Mary Frances testified that she had never beaten either of her children.

Appellant testified that it was Mary Frances who caused Connie’s injuries. He testified that she frequently hit the two girls with a hair brush on various parts of their bodies. According to appellant, Mary Frances physically abused the children many times during December and January; on January 1, 1974, she attempted to throw Connie from a moving car, but was prevented from doing so by appellant.

According to appellant, the fatal wounds were inflicted on Connie by Mary Frances on January 6, 1974. Appellant woke up in the night and discovered that Mary Frances was angrily beating the children with a hair brush. In order to placate Mary Frances, whose anger had increased when Connie wet her pants, the appellant took off his belt and lightly spanked Connie “three or four little spats on the rear.”

Mary Frances than grabbed Connie and “jerked” the child away from appellant. She then began beating Connie “back and forth with her hand.” According to appellant, he grabbed at Mary Frances in order to help Connie, but Mary Frances dropped Connie in the process.

Appellant testified that he was not able to see the bruises on Connie’s body after this beating because Mary Frances kept the child completely covered with clothes. He stated that Mary Frances minimized Connie’s subsequent unconsciousness by saying that it was caused by a virus. He also testified that when he suggested medical help for Connie, Mary Frances reminded him that Connie was her child, not his.

Appellant denied all of the abusive acts attributed to him by Mary Frances. He presented the testimony of several witnesses who testified that they had seen Mary Frances abuse her children during December and early January.

Appellant admitted that he did not tell the truth at the hospital when he was asked about the cause of Connie’s death. He claimed that he lied to protect Mary Frances because she had asked him to do so and because he loved her very much.

Quite clearly, appellant’s defense was that Mary Frances had inflicted the fatal injuries without his assistance; appellant attempted to show that Mary Frances was the guilty party by his own testimony and that of other witnesses.

However, appellant also attempted to show — by both cross-examination and presentation of testimony — that Mary Frances was a biased and prejudiced witness because her own beating of Connie caused her to be concerned that she might be prosecuted for the homicide of Connie. This attempt to show Mary Frances’s bias and prejudice and motive for testifying was an altogether different issue from the question of whether it was appellant or Mary Frances who caused Connie’s death. See generally, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Evans v. State, 519 S.W.2d 868, 873 (Tex.Cr.App.1975), and cases there cited.

*807Thus, there were two separate but related issues which appellant sought to put before the jury: Mary Frances’s criminal culpability, on the one hand, and her bias and prejudice as a witness, on the other. That these two issues were not distinguished from one another by the trial court is obvious from the court’s rulings. Thus, when appellant first sought to show that Mary Frances had beaten Lola Jean and Connie, the court limited appellant’s inquiry to acts occurring on or after December 1, 1973. This was the date, according to Mary Frances, when appellant began beating the children. Later, the court heard expert testimony that some of the bruises on Connie’s body could have been inflicted in late November, 1973; at this point the court amended its ruling and allowed appellant to put on evidence of Mary Frances’s conduct as far back as the middle or latter part of November.

However, the court refused to allow appellant to show that Mary Frances had beaten Connie and Lola Jean on several occasions prior to the middle of November. Appellant objected to this refusal on the grounds that he was being deprived of his right to show the jury that Mary Frances was biased and prejudiced and therefore not a credible witness.

Appellant developed his bill of exception on this issue outside the presence of the jury: From Patsy Malone he elicited testimony that in September, 1973, Mary Frances had “backhanded [Connie] across the face and knocked her down,” apparently because Connie was crying. Appellant then called his sister, Linda Jackson, who testified that in June, 1973, Mary Frances grabbed Connie’s hair and jerked Connie by the hair for no apparent reason. Next, Jody Hartsfield testified that on approximately October 12, 1973, she saw Mary Frances kick Connie because Connie asked for a drink of water. Finally, Kathy Toli-son testified on the bill of exception that she had lived with Mary Frances for a period of time and that some two and a half years prior to trial (therefore during April, 1972) she had seen Mary Frances knock Connie up against a wall with her fist after Connie asked for a drink of water. Tolison testified that Connie was a “tiny baby" at the time.

Through this particular testimony the appellant was not attempting to show that Mary Frances had committed the offense, and therefore that appellant was not guilty; he was instead trying to show that Mary Frances had repeatedly beaten and abused Connie over a long period of time. He had good reason to believe that after hearing this evidence the jury might very well infer that Mary Frances felt vulnerable to potential prosecution because of her long-term pattern of child abuse. Acceptance of this inference would lead the jury naturally to the conclusion that Mary Frances felt undue pressure to testify as favorably as possible for the State. See Davis v. Alaska, supra, 415 U.S. at 317-318, 94 S.Ct. at 1111, 39 L.Ed.2d at 354; Evans v. State, supra at 873.1

I believe that appellant should have been allowed to present evidence of Mary Frances’s repeated and long-term abuse of Connie. It was important for the jury to know that, because of this long-term series of brutal actions, Mary Frances was afraid of being prosecuted herself.

On original submission the majority relied on two factors to uphold the trial court’s mid-November time limitation. First, the majority pointed out that the court allowed appellant to cross-examine Mary Frances fully about her treatment of the children during the limited time period. Second, the majority observed that appellant was permitted, to show that Mary Frances had mistreated her children during this limited time period.

There is no question that appellant cross-examined Mary Frances fully about her alleged mistreatment of Connie and Lola Jean during the latter part of 1973 and the *808first week of 1974. And it is equally clear that the appellant was allowed to put before the jury evidence that Mary Frances had beaten her children during this same period.

However, under this Court’s holdings — as well as the holding in Davis, supra — this is simply not enough. Both this Court and the United States Supreme Court have made it clear that the right of an accused to cross-examine an adverse witness for bias is a “vital” constitutional right; therefore, the accused must be allowed great latitude in showing any fact which would tend to establish the bias, prejudice, or motive for the witness’s testimony. Davis, supra at 320, 94 S.Ct. at 1112, 39 L.Ed.2d at 356; Evans, supra at 871.

I believe that the jury in this case was entitled to know all the facts which would tend to show that Mary Frances’s testimony was “affected by fear or favor.” Alford v. United States, 282 U.S. 687, 693, 51 S.Ct. 218, 220, 75 L.Ed. 624, 628-629 (1931) (relied on by the Court in Davis v. Alaska, supra). By limiting appellant to the stated time period, the trial court prevented the jury from knowing the full coercive and intimidating effect on Mary Frances of her past conduct. Instead, the jury should have been allowed to infer — if the jurors chose to do so — that because of a long history of child abuse Mary Frances was likely to testify more favorably for the State.

In this regard, the Evans case is instructive. In Evans Wayne Knock gave the only testimony of several facts which were extremely damaging to the co-defendants, Evans and Meyer.2

The co-defendants then attempted to show the jury, and did show by bill of exception, that Knock had been indicted for sodomy in 1972;3 that Knock’s case was set in the same court as that in which the co-defendants were being tried; that each time the co-defendants’ case had been set for trial Knock’s sodomy trial had been set to be tried afterward; and that each time the co-defendants’ case was reset Knock’s case was also reset.

Relying on Art. 38.29, V.A.C.C.P., the trial court refused to allow the jury to receive this evidence. This Court reversed, holding that the defendants were entitled to show “Knock’s vulnerable status as an indictee.” Evans v. State, supra at 873.

The holding in Evans stands for the proposition that the co-defendants in that case were not merely entitled to put on evidence that Knock had been indicted; they also had the right to show that his case had repeatedly been reset so that his sodomy indictment would be hanging over him when he testified against Evans and Meyer.

It follows that where the accused desires to show the bias and motive of a witness he is entitled to show the basis of that bias, prejudice, and motive in its entirety.4 Therefore, just as Evans and Meyer were entitled to show all of the resettings of Knock’s sodomy case, and not just the most recent resetting, so was this appellant entitled to inquire into all of Mary Frances’s long-term acts of abuse, not just the most recent acts.

In Coleman v. State, 545 S.W.2d 831 (Tex.Cr.App.1977), this Court held that the defendant was entitled to present to the jury all previous harassing acts committed against him by local police officers, since *809these acts tended to show the animus, motive, and ill-will of the police officer who arrested appellant and testified against him at trial. In reversing Coleman’s conviction we quoted with approval from Green v. State, 54 Tex.Cr.R. 3, 7, 111 S.W. 933, 935 (1908), as follows:

. . . [A]ny fact and every fact going or tending to show mental bias, interest, prejudice or any other motive, or mental state, or status [of the witness], which, fairly considered and construed, might even remotely tend to affect his credibility, should [be] admitted.’ ” (Emphasis and bracketed portions added in Coleman, at 834.)

We also held in Coleman that:

“The motives which operate on the mind of the witness while he testifies should never be regarded as immaterial, because they tend to affect his credibility.” Id., at 834.

I therefore conclude that the trial judge impermissibly limited the proof of the witness’s bias, prejudice, and motive for testifying. I would grant the appellant’s motion for rehearing and reverse the judgment of the trial court.

. Here, much more than in Davis and Evans, the testimony of the State’s witness was crucial to the State’s case. See Davis, supra, 415 U.S. at 317, 94 S.Ct. at 1111, 39 L.Ed.2d at 354; Evans, supra at 873. In truth, it was the State’s case.

. The evidence also showed that Knock fit the description of one of the suspects, as described by another of the State’s witnesses.

. The murder which Evans and Meyer were alleged to have committed occurred on January 7, 1972.

. Of course, this is necessarily subject to the trial court’s broad discretion to prevent repeti-five and unduly harassing cross-examination. Davis, supra, 415 U.S. at 316, 94 S.Ct. at 1110, 39 L.Ed.2d at 353. However, the excluded evidence and cross-examination in the present case were neither repetitive nor harassing; rather, they went to the very heart of the issue of Mary Frances’s bias and her motive for testifying.