                                 NO. 07-11-0471-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL B

                                OCTOBER 2, 2012
                         _____________________________

                                    AARON DIAL,

                                                               Appellant
                                           v.

                               THE STATE OF TEXAS,

                                                                Appellee
                         _____________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

   NO. 2010-427,928; HONORABLE JOHN J. "TREY" MCCLENDON, PRESIDING
                      _____________________________

                              Memorandum Opinion
                         _____________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Appellant, Aaron Dial, appeals his murder conviction and 99-year sentence. The

two issues posed to us concern the trial court’s decision to 1) prevent appellant from

cross-examining a State’s witness about the State’s disposition of criminal proceedings

involving and criminal accusations levied against the witness, and 2) admit letters

written by appellant that allude to his membership in a gang. The former allegedly was

improper because it denied him the opportunity to confront and cross-examine a

witness about possible bias.    The latter was improper because he had not been
afforded reasonable notice of the State’s intent to proffer the letters. We overrule the

issues.

       Issue 1 – Evidence of Bias

       Appellant sought to question a State’s witness about several criminal matters

involving that witness.       One concerned the State’s refusal to prosecute a criminal

complaint levied against her. Per the complaint, the witness had failed to perform, in its

entirety, a lease of personalty. The personalty consisted of a Playstation 3 for which

she agreed to pay rentals approximating 500 plus dollars. Because she defaulted after

paying 400 plus dollars, the lessor filed a criminal complaint alleging theft. The decision

to refuse prosecuting the complaint was made several weeks before the witness

testified at appellant’s second trial. 1

       Two other criminal matters concerned the witness’ prosecution for resisting

arrest, which prosecutions were pending when the witness testified at appellant’s first

trial. Though originally granted deferred adjudication, the State successfully moved to

adjudicate her guilt.       Thereafter, she was placed either on regular probation or

sentenced to a relatively short term of incarceration, which term she served on the

weekends.      Appellant believed this to be evidence pertaining to her bias since the

adjudications occurred shortly before the first trial and the witness indicated that she

“appreciate[d]” what the State had done for her.               However, no evidence of record

suggests that her decision to testify against appellant was discussed or implicated in the

State’s decision to seek the minimal punishment she ultimately received. The witness

also testified that her attorney dealt with the State and that she did not meet with


   1
    Appellant previously had been tried for the same offense, which proceeding ended in a mistrial. The
witness in question had testified at it as well.

                                                  2
anyone from the prosecutor’s office. Thereafter, the trial court opted to exclude the

evidence since there was no “deal” between the State and the witness or a showing that

“her testimony could, in any way, be influenced by that.”

         The pertinent standard of review is one of abused discretion. Weatherred v.

State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Next, the party attempting to use

evidence of criminal matters involving a witness to insinuate that the witness may have

a bias favoring the State must establish some causal connection or logical nexus

between the charges and the witness’ potential bias.            Irby v. State, 327 S.W.3d

138,147-49 (Tex. Crim. App. 2010), cert. denied, __ U.S. __, 131 S.Ct. 904, 178

L.Ed.2d 760 (2011), quoting Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App.

1998).

         As for the theft complaint, the witness testified, during voir dire, that she did not

know of its filing until appellant broached the matter at his trial. Given this, we cannot

say that the trial court erred in prohibiting its use as a means of showing bias. See Ex

parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993) (finding no error in the State

failing to turn over offense reports which would show bias or interest when the witness

did not know he was a suspect in the crimes and there was no legitimate tendency to

show he was biased in favor of the State). Indeed, the trial court could have logically

concluded that a witness’ testimony could not reasonably be influenced by State

decisions about which she knew nothing.

         As to the disposition of the resisting arrest prosecutions, no one disputes that the

underlying crimes occurred before appellant engaged in the conduct resulting in his

murder conviction. Nor does anyone deny that the witness had been granted deferred



                                               3
adjudication before them as well. And, while their ultimate disposition came shortly

before appellant’s trial began and the witness “appreciate[d]” what the State did, no one

proffered evidence suggesting that the sentence assessed (and apparently agreed to by

the State) differed in any way from that levied in like situations. Nor is there evidence

that the topic of the witness testifying against appellant ever arose while she sought to

dispose of her own criminal concerns.

       Moreover, if the goal of appellant was to show that the witness had reason to

testify against appellant and to assist in his conviction, he had available other evidence

with which to achieve that result.          It consisted of the witness‘ relationship to the

decedent. She was the decedent’s niece, and the decedent purportedly was coming to

her rescue. 2 So too had appellant allegedly engaged in an altercation with the witness’

brother.

       Given the presence of other possible motives for the witness favoring appellant’s

conviction, given the lack of any agreement between the witness and State regarding

her testifying in the prosecution of appellant, and given the lack of evidence suggesting,

in any way, that the witness received special or better treatment from the State viz the

disposition of the misdemeanors against her, we cannot say that the trial court erred in

finding no logical nexus between the witness’ testimony against appellant and the way

in which her criminal matters were resolved. In other words, the decision to exclude the

evidence fell within the zone of reasonable disagreement and, therefore, did not evince

an abuse of discretion. See Wacholtz v. State, 296 S.W.3d 855, 857-58 (Tex. App.–



   2
    Appellant and the witness had engaged in a heated verbal exchange. Upon appellant uttering words
which could be interpreted as his intent to strike her if she refused to leave him alone, the decedent
allegedly attempted to protect her.

                                                  4
Amarillo 2009, pet. ref’d) (holding that a trial court does not abuse its discretion if its

decision falls within the zone of reasonable disagreement).

       Issue 2 – Extraneous Offense

       In his second issue, appellant complains of extraneous offense evidence

admitted during the punishment phase. The evidence consisted of letters written by

appellant after his arrest and in which he made reference to the Rolling Sixties Crip

Gang and his affiliation with it. One of the letters came to the knowledge of the State

during trial. Appellant argues that he did not receive sufficient notice of the State’s

intent to proffer them as evidence.

       We assume, arguendo, that appellant is correct and that the trial court erred in

admitting them.    The record, nonetheless, contains other evidence, e.g. tattoos, of

appellant’s affiliation with the Rolling Sixties Crips and its involvement with the drug

business. Furthermore, appellant does not attack the admission of that evidence on

appeal.   Given this, we cannot say that admission of the letters was harmful; their

tendency to attribute gang affiliation is redundant of other admissible evidence that did

the same thing. See Prieto v. State, 337 S.W.3d 918, 922 (Tex. App.–Amarillo 2011,

pet. ref’d) (stating that the error in the admission of evidence is rendered harmless when

like evidence is admitted without objection).

       The judgment is affirmed.



                                          Brian Quinn
                                          Chief Justice

Do not publish.




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