                                                                                              ACCEPTED
                                                                                          06-14-00174-CR
                                                                               SIXTH COURT OF APPEALS
                                                                                     TEXARKANA, TEXAS
                                                                                    7/22/2015 10:15:02 PM
                           No. 06-14-00174-CR                                            DEBBIE AUTREY
                       Trial Court No. 14F0004-005                                                 CLERK



                   IN THE COURT OF APPEALS
            FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN
                                                6th COURT OF APPEALS
                     AT TEXARKANA, TEXAS          TEXARKANA, TEXAS
                                                                  7/23/2015 8:46:00 AM
Roderick Beham,                                                      DEBBIE   AUTREY
                                                                            Appellant
                                                                          Clerk


v.

The State of Texas,                                                             State
                  Appealed from the 5th Judicial District Court
                             Bowie County, Texas




                       BRIEF FOR THE STATE
                  The State Does Not Request Oral Argument

                                            Respectfully submitted:

                                            Jerry D. Rochelle
                                            Criminal District Attorney
                                            Bowie County, Texas
                                            601 Main Street
                                            Texarkana, Texas 75501
                                    By:     Lauren N. Sutton
                                            Assistant District Attorney
                                            601 Main Street
                                            Texarkana, Texas 75501
                                            Texas Bar No. 24079421
                                            Attorneys for the State
                              In The Court of Appeals
                       For the Sixth Supreme Judicial District
                                At Texarkana, Texas


Roderick Beham,                          §
           Appellant                     §
                                         §                 No. 06-14-00174-CR
v.                                       §
                                         §
The State of Texas,                      §                  BRIEF FOR THE STATE
             State                       §
                                         §


                                Identity of the Parties

        The following is a complete list of all the parties to the trial court’s judgment

as required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate

Procedure:

     1. Defendant and Appellant:

        Roderick Beham

     2. Attorneys for Appellant on appeal:

        Alwin A. Smith
        Attorney at Law
        Texas Bar No. 18532200
        602 Pine Street
        Texarkana, Texas 75501

        Garret Smith
        Texas Bar No. 240884226
        Attorney at Law
        1616 Falcon Ridge Blvd.
        Friendswood, Texas 77546

                                             i
3. Attorneys for Appellant at trial:

   Chad Crowl
   Bowie County Public Defender’s Office

4. Attorney for the State of Texas at trial:

   Samantha Oglesby
   Kelley Crisp
   Assistant District Attorneys
   Bowie County, Texas
   601 Main Street
   Texarkana, Texas 75501

5. Attorney for the State of Texas on appeal:

   Lauren N. Richards
   Assistant District Attorney
   Texas Bar No. 24079421
   601 Main Street
   Texarkana, Texas 75501

6. Presiding Judge at trial:

   The Honorable Ralph Burgess
   District Court Judge
   5th Judicial District
   Bowie County, Texas
   Bi-State Justice Building
   100 North State Line Avenue
   Texarkana, Texas 75501




                                       ii
                                               Table of Contents

Identity of the Parties and Counsel ......................................................................... i-ii

Table of Contents ..................................................................................................... iii

Index of Authorities ............................................................................................. iv-vi

Statement of the Case................................................................................................. 1

Reply to Points of Error ............................................................................................. 2

Argument.............................................................................................................. 3-22

                  Reply to Point of Error Number One and Two
                  The trial court did not err in denying the Appellant’s motion to
                  suppress.


                  Reply to Point of Error Number Three
                  The trial court did not err in excluding evidence of what type of
                  offense for which the witness was on probation.


                  Reply to Point of Error Number Four and Five ......................................
                  The trial court did not err by allowing the introduction of
                  extraneous offenses and bad acts.




                                                            iii
Prayer for Relief ....................................................................................................... 23

Certificate of Compliance ........................................................................................ 24

Certificate of Service ............................................................................................... 25




                                                            iv
                                      Index of Authorities

Cases

Carroll v. State, 916 S.W.2d 494 (Tex. Crim. App. 1996)...................................... 13

Carpenter v. State, 979 S.W.2d 633 (Tex. Crim. App. 1998) ................................. 15

Davis v. United States, 512 U.S. 452 (1994) ......................................................5,6, 8

De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009)................................. 18

Delao v. State, 235 S.W.3d 235 (Tex. Crim. App. 2007) .......................................... 4

Delaware v. Van Arsdall, 475 U.S. 673 (1986) .................................................13, 16

Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)...................................... 5

Goodwin v. State, 91 S.W.3d 912 (Tex. App—Fort Worth 2002, no pet.) ......12, 18

Graves v. State, 307 S.W.3d 483 (Tex. App.—Texarkana 2010, pet. ref’d) ........... 3

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ....................................... 3

Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009).................................... 13

Hardesty v. State, 667 S.W.2d 130 (Tex. Crim. App. 1984) ..................................... 3

In re D.J.C., 312 S.W.3d 704 (Tex. App. – Houston [1st Dist.] 2009, no pet.) ........ 4

Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) .................................... 21

Lincicome v. State, 3 S.W.3d 644 (Tex. App.—Amarillo 1999, no pet.)......... 12, 18

Love v. State, 861 S.W.2d 899 (Tex. Crim. App. 1993) ....................................10, 12

Lucas v. State, 791 S.W.2d 35 (Tex. Crim. App. 1989) ............................................ 7

Marshall v. State, 210 S.W.3d 618 (Tex. Crim. App. 2006) ..................................... 5


                                                   v
Matz v. State, 21 S.W.3d 911, 912(Tex. App.—Fort Worth 2000) ......................... 21

Mays v. State, 285 S.W.3d 884 (Tex. Crim. App. 2009) ......................................... 11

McDaniel v. State, 3 S.W.3d 176 (Tex. App.—Fort Worth 1999, pet. ref’d) ......... 12

McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) ................................. 9

Miranda v. Arizona, 384 U.S. 436 (1966) ............................................................. 4, 6

Mitchell v. State, 931 S.W.2d 950 (Tex.Crim.App.1996) ....................................... 19

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .......................12, 17

Morales v. State, 32 S.W.3d 862 (Tex. Crim. App. 2000) ...................................... 21

Motilla v. State, 78 S.W.3d 352, 357-58 (Tex. Crim. App. 2002) ......................... 21

Phelps v. State, 999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d) .........12, 18

Rachal v. State, 917 S.W.2d 799 (Tex. Crim. App. 1996) ....................................... 3

Ramos v. State, 245 S.W.3d 410 (Tex. Crim. App. 2008)...................................... 4,5

Robbins v. State, 88 S.W.3d 256 (Tex. Crim. App. 2002) ...................................... 18

Robinson v. State, 35 S.W.3d 257 (Tex. App.—Texarkana 2000, pet. ref’d) ...12, 18

Rogers v. State, 291 S.W.3d 148 (Tex. App.—Texarkana 2009, pet. ref’d) ............. 3

Sherman v. State, 20 S.W.3d 841, 847 (Tex. App.—Texarkana 2000, no pet.)...... 12

Shugart v. State, 32 S.W.3d 355 (Tex. App.—Waco 2000, pet. ref’d) ................... 21

Taylor v. State, 93 S.W.3d 487 (Tex. App—Texarkana 2002, pet. ref’d.) .......12, 18

Thompson v. State, 4 S.W.3d 884 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd)19

Villarreal v. State, 935 S.W.2d 134 (Tex. Crim. App. 1996) .................................... 3


                                                   vi
Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000)...........................12, 18

Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000) ........................... 21

Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002) ................................12, 18

Wilder v. State, 111 S.W.3d 249 (Tex. App.—Texarkana 2003, pet. ref’d) ........... 17

Williams v. State, 257 S.W.3d 426, 432 (Tex. App.-Austin 2008, pet ref'd) ............ 4

Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010) ........................................ 3



United States Consitution

U.S. Constitutional Amendment V ............................................................................ 4

U.S. Constitutional Amendment VI ........................................................................... 9



Rules of Appellate Procedure

Tex. R. App. Proc. 44.2(b) ....................................................................................... 20



Rules of Evidence

Tex. R. Evid. 611(b)................................................................................................. 12



Texas Code of Criminal Procedure

Tex. Code Crim. Proc. art. 37.07 § 3 ..................................................................18,19




                                                          vii
                             Statement of the Case

         Appellant, Roderick Beham, was convicted by a jury of aggravated robbery

in the 5th Judicial District Court of Bowie County, Texas, the Honorable Ralph

Burgess presiding. The jury assessed punishment at twenty-five (25) years in the

Institutional Division of the Department of Criminal Justice, and the Judge

sentenced the Appellant accordingly. Appellant then perfected appeal to this

Honorable Court. He now appeals the verdict of the trial court on five points of

error.




                                         1
                    Reply to Points of Error

         REPLY TO POINT OF ERROR NUMBER ONE AND TWO:

The trial court did not err in denying the Appellant’s motion to
suppress.


             REPLY TO POINT OF ERROR NUMBER THREE:

The trial court did not err in excluding evidence of what type of
offense for which the witness was on probation.


        REPLY TO POINT OF ERROR NUMBER FOUR AND FIVE:

The trial court did not err by allowing the introduction of extraneous
offenses and bad acts.




                                  2
                                         Argument

                        Reply to Points of Error One and Two

       The trial court did not err in denying the Appellant’s motion to
       suppress.

       The State will reply to Appellant’s first and second points of error jointly, as

Appellant’s brief also consolidated the two points of error.

                               Argument and Authorities

A. Standard of Review

       A trial court’s ruling on a motion to suppress is analyzed using a bifurcated

standard of review.1 Although almost total deference is given to the trial court’s

determination of historical facts and credibility, a review of the trial court’s

application of the law and determination on the questions not turning on credibility

is reviewed de novo.2 Generally, reviewing courts consider only the evidence

adduced during the suppression hearing because the trial court’s ruling was based

on that evidence alone rather than evidence presented later at trial.3 However, this

rule is inapplicable where the suppression issue has been re-litigated by the parties

during trial on the merits.4


1
  Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana 2010, pet. ref’d); Rogers v. State,
291 S.W.3d 148, 151 (Tex. App.—Texarkana 2009, pet. ref’d); Wilson v. State, 311 S.W.3d 452,
457-58 (Tex. Crim. App. 2010).
2
  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Villarreal v. State, 935 S.W.2d
134, 138 (Tex. Crim. App. 1996); Wilson, 311 S.W.3d at 458.
3
  Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).
4
  See, e.g., Hardesty v. State, 667 S.W.2d 130, 133 n.6 (Tex. Crim. App. 1984).
                                              3
       At a hearing on a motion to suppress, the trial court is the sole and exclusive

trier of fact and judge of the credibility of the witnesses and the evidence. 5 The

evidence is examined in a light most favorable to the trial court’s ruling.6 A

reviewing court must uphold a trial court’s ruling on a motion to suppress if it is

supported by the record and correct under any theory of law applicable to the case.7

B. Application of Law to Facts

       The Fifth Amendment to the United States Constitution provides that “[n]o

person ... shall be compelled in any criminal case to be a witness against

himself.”8 Law enforcement officials, before questioning a person in custody, must

inform him that he has the right to remain silent and that any statement he makes

ma be used against him in court.9 “The right to terminate questioning is among the

procedural safeguards that Miranda establishes” to protect the Fifth Amendment

right to remain silent.10 This right requires police officers to immediately terminate

questioning when a suspect “indicates in any manner, at any time prior to or during

questioning, that he wishes to remain silent.”11 The suspect is not required to use



5
  Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007).
6
  Id.
7
  In re D.J.C., 312 S.W.3d 704, 711 (Tex. App. – Houston [1st Dist.] 2009, no pet.) (citing State
v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008)).
8
  U.S. Const. amend. V.
9
  Miranda v. Arizona, 384 U.S. 436, 444 (1966).
10
   Williams v. State, 257 S.W.3d 426, 432 (Tex. App.-Austin 2008, pet ref'd). This
11
   Ramos v. State, 245 S.W.3d 410,418(Tex. Crim. App. 2008) (quoting Miranda, 384 U.S. at
473–74).
                                                4
any particular phraseology to invoke the right to remain silent.12 Any declaration of

a desire to terminate the questioning should suffice.13 A law enforcement officer

may not continue to question the suspect until the officer succeeds in persuading

the suspect to change his mind and talk.14

       However, an interrogating officer is not required to terminate his questioning

unless the suspect's invocation of rights is unambiguous.15 “If the suspect's

statement is not an unambiguous or unequivocal request [to terminate the interview

or to invoke the right to silence], the officers have no obligation to stop questioning

him.”16 A police officer is permitted, but not required, to clarify a suspect's wishes

when faced with an ambiguous invocation of the right to remain silent.17

       In determining whether the right to remain silent was unambiguously

invoked, courts look at the totality of the circumstances.18 Ambiguity exists when

the suspect's statement is subject to more than one reasonable interpretation under

the circumstances.19




12
   Ramos, 245 S.W.3d at 418.
13
   Id.
14
   Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996).
15
   Ramos, 245 S.W.3d at 418 (citing Dowthitt, 931 S.W.2d at 257).
16
   Davis v. United States, 512 U.S. 452, 461–62 (1994).
17
   Marshall v. State, 210 S.W.3d 618, 628 (Tex. Crim. App. 2006) (citing Davis, 512 U.S. at
461–62).
18
   Williams, 257 S.W.3d at 433.
19
   Id. at 433–34.
                                               5
       Miranda v. Arizona requires that suspects in custody be informed before

questioning begins of their right to consult with an attorney. 20 If a suspect invokes

that right, there can be no further interrogation unless the accused initiates it. If

Miranda warnings are not given or a request for counsel is ignored, any

subsequent statements by the suspect cannot be introduced at trial during the

prosecution's case-in-chief.

       In Davis v. United States21, the United States Supreme Court established a

“bright line” between suspects who might be asking for a lawyer and those who

actually do ask for one, holding that only the latter have invoked their right

to counsel:

              “To avoid difficulties of proof and to provide guidance to
       officers conducting interrogations, this is an objective
       inquiry. Invocation of the Miranda right to counsel requires, at a
       minimum, some statement that can reasonably be construed to be an
       expression of a desire for the assistance of an attorney. But if a
       suspect makes a reference to an attorney that is ambiguous or
       equivocal in that a reasonable officer in light of the circumstances
       would have understood only that the suspect might be invoking the
       right to counsel, our precedents do not require the cessation of
       questioning. Rather,       the     suspect      must      unambiguously
       request counsel. As we have observed, a statement either is such an
       assertion of the right to counsel or it is not. Although a suspect need
       not speak with the discrimination of an Oxford don, he must articulate
       his desire to have counsel present sufficiently clearly that a reasonable
       police officer in the circumstances would understand the statement to
       be a request for an attorney.”22

20
   384 U.S. 436, 469-70 (1966); see U.S. Const. amend. V.
21
   512 U.S. 452 (1994).
22
   Id.
                                              6
       Police   may     continue     to   question    an   accused     after   an   unclear

or ambiguous invocation of the right to counsel only to ascertain “whether the

accused indeed wants to consult with counsel or wishes to proceed with the

interview without benefit of counsel.”23

       Prior to trial, the Appellant filed a Motion to Suppress Oral Statements of

Defendant. (C.R. P. 51). Prior to jury selection, the trail court took up the

Appellant’s Motion to Suppress. (R.R. Vol. 2, p. 12). The court took the recorded

statement for review in camera and then heard arguments from both sides as to the

admissibility of the Appellant’s recorded statement. (R.R. Vol. 2, p. 15-21).

       The trial court reasoned that Appellant’s statement at 2:25 in the recording

that he wanted to “see what you’ve got to say first,” clearly indicated that he was

not invoking his right to counsel. (R.R. Vol. 2, p. 22). The court stated, “[h]e

wanted to see what the officer had to say first before he invoked his right to

counsel and that’s when the conversation began and continued, so I find that it was

a voluntary conversation.” (R.R. Vol. 2, p. 22). The trial court ruled that the

statement was not in violation of the Appellant’s Fifth Amendment rights.




23
  Lucas v. State, 791 S.W.2d 35, 46 (Tex. Crim. App. 1989), vacated on other grounds, 509
U.S. 918 (1993).


                                             7
          The recorded conversation has the Appellant making statements such as “I

was going to try to see if I could get a lawyer,” “my Pops told me to get a lawyer,

he had a lawyer for me,” and “I don’t want to talk to the lawyer, see what’s going

on.” Due to the Appellant mumbling some of those statements, there was

disagreement at the hearing, and still again disagreement on appeal, between

Appellant and the State as to the exact wording of those statements. Due to the lack

of clarity with which the Appellant was speaking, Detective Giddens continued to

talk with the Appellant to clarify his desires and ascertain whether he wanted to

waive his rights and speak with him. Giddens also reminded the Appellant if he

wished to terminate the interview at any time, he was free to do so. A Detective is

allowed to clarify an ambiguous request for an attorney.24

          In the present case, the Appellant’s statements are subject to more than one

reasonable interpretation under the circumstances. There was back and forth

conversation between the Appellant and Detective Giddens. Appellant made the

statement, ‘I want to talk but I don’t want a—I want a lawyer—I want to see …,’

among other equivocal statements. (State’s Record Exhibit 1).

          As Detective Giddens proceeds to attempt to clarify whether the Appellant is

waiving his rights, the Appellant ultimately says, “I want to see what you’ve got to

say first” to the officer. The Appellant was not being interrogated at this point in


24
     Davis, 512 U.S. at 453.
                                            8
the conversation. It was reasonable for the detective to interpret this statement as

the Appellant wished to see what the officer had to say before invoking his right to

counsel or right to remain silent.

         The trial court did not err in admitting Appellant’s statement. Here, the trial

court’s conclusion that Appellant’s rights were not violated was based on it’s own

evaluation of the recorded statement, and it was not error to deny Appellant’s

Motion to Suppress.

         In regards to an accused’s Sixth Amendment right, the right to

assistance of counsel does not attach prior to the initiation of adversarial judicial

proceedings, which may be initiated by way of formal charge, preliminary hearing,

indictment, information, or arraignment.25 For purposes of determining when Sixth

Amendment right to counsel attaches, examples of actions which mark initiation of

formal adversarial proceedings include filing indictment, filing information and

complaint, arraignment, and warning hearing before magistrate as to defendant's

rights.26 In this case, at the time of the interview, the Appellant had been arrested in

Little River County, Arkansas when Detective Giddens arrived to speak with him.

(R.R. Vol. 4, p. 66-67). Because adversarial judicial proceedings had not yet been

initiated, the Appellant’s Sixth Amendment right had not yet attached. Because the



25
     U.S. Const. amend. VI
26
     McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996).
                                               9
Sixth Amendment right to counsel had not attached, it was not violated by

Detective Gidden’s questions.

       For these reasons, Appellant’s first and second points of error should be

overruled.



                              Reply to Point of Error Three

       The trial court did not err in excluding evidence of what type of
       offense for which the witness was on probation.


                                Argument and Authorities

       Appellant challenges the trial court's ruling on its attempted cross-

examination of the State’s witness, arguing that defense counsel sought to elicit

relevant and admissible testimony not prohibited by an established evidentiary

rule. Although Appellant mentions in his argument summary it was a violation of

his right to confront witnesses, and briefs this issue with a focus on his

constitutional right to cross-examination, it should be interpreted his complaint as

alleged error in the exclusion of evidence.27

       In order to preserve error regarding a trial court's decision to

exclude evidence, the complaining party must comply with Texas Rule of


27
   See Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App.1993)(interpreting complaint that
trial court refused to allow defense counsel to recall witness for further cross-examination as
being predicated on exclusion of evidence).
                                                10
Evidence 103 by making an “offer of proof” which sets forth the substance of the

proffered evidence.28 The offer of proof may consist of a concise statement by

counsel, or it may be in question and answer form. 29 If in the form of a statement,

the proffer “must include a reasonably specific summary of the evidence offered

and must state the relevance of the evidence unless the relevance is apparent, so

that the court can determine whether the evidence is relevant and admissible.”30 A

summary in most general and cursory terms, without any of the substance of the

actual evidence will not suffice to preserve error.31

       Appellant stated to the trial court that he wished to question Arneshia Hall

that he was on probation for a weapons charge that, “[t]he fact that she was gone

on probation and has an opportunity to go to her probation officer and tell him

what happened.” (R.R. Vol. 4, p. 54).

       After the trial court sustained the State’s Rule 403 objection to that evidence,

the defense failed to request to make an offer of proof as to the testimony it wanted

admitted.

       On appeal, the Appellant complains he was unable to properly cross-

examine the witness demonstrating alleged bias. It is the State’s position that the

statements made by defense at trial do not make it apparent what the substance of

28
   Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009).
29
   Id.
30
   Id. at 889-90(quoting Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998)(per curiam)).
31
   Id. at 891.
                                              11
the testimony was that the Appellant sought to introduce. Without a proper offer of

proof as to the substance of the testimony, it would be mere speculation as to the

nature of the excluded testimony. For these reasons, the Appellant has not

preserved this point of error for review.

     A. Standard of Review

       A trial court has considerable discretion in determining whether to admit or

exclude evidence.32 When considering whether a trial court’s decision to admit or

exclude evidence is error, an appellate court must determine whether the trial court

abused that discretion.33 This inquiry depends on the facts of each case.34 An abuse

of discretion occurs only when the trial court acts arbitrarily or unreasonably

without reference to any guiding rules or principles.35 Even if the reviewing court

might have reached a different result, the court must uphold the trial court’s

decision to admit or exclude evidence if it was within the “zone of reasonable

disagreement.”36



32
   Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990 (op. on reh’g); McDaniel v.
State, 3 S.W.3d 176, 180 (Tex. App.—Fort Worth 1999, pet. ref’d).
33
   Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Robinson v. State, 35
S.W.3d 257, 263 (Tex. App.—Texarkana 2000, pet. ref’d).
34
   Love v. State, 861 S.W.2d 899, 904 (Tex. Crim. App. 1993); Sherman v. State, 20 S.W.3d 841,
847 (Tex. App.—Texarkana 2000, no pet.).
35
   Lincicome v. State, 3 S.W.3d 644, 646 (Tex. App.—Amarillo 1999, no pet.); Phelps v. State,
999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d); see Montgomery, 810 S.W.2d at 372.
36
   Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (citing Montgomery, 810
S.W.2d at 391); Weatherred, 15 S.W.3d at 542; Taylor v. State, 93 S.W.3d 487, 505-506 (Tex.
App—Texarkana 2002, pet. ref’d.); Goodwin v. State, 91 S.W.3d 912, 917 (Tex. App—Fort
Worth 2002, no pet.).
                                             12
       The scope of cross-examination is broad and extends to facts that may affect

the witness’ credibility.37 A defendant is entitled to pursue all avenues of cross-

examination reasonable calculated to expose a motive, bias, or interest for the

witness to testify.38 However, the scope of appropriate cross-examination is not

unlimited, and the trial court generally had “wide discretion in limiting the scope

and extent of cross-examination.”39 For example, a trial court may properly limit

the scope of cross-examination to prevent harassment, prejudice, confusion of the

issues, harm to the witness, and repetitive or marginally relevant interrogation.40

B. Application of Law to Facts

       At trial, the codefendant Arneisha Hall testified that in exchange for

testifying truthfully at Appellant’s trial, she pled guilty to robbery and received a

fifteen year sentence. (R.R. Vol. 4, p. 42).

       On cross-examination, Ms. Hall testified that she initially denied all

involvement with the robbery to detectives and told multiples lies to law

enforcement. (R.R. Vol. 4, p. 52-53). The following exchange drew objection from

the State,

       DEFENSE: Okay. And Ms. Hall, at the time this robbery happened, you

were on probation, weren’t you, ma’am?
37
   See Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996); see also Tex. R. Evid.
611(b).
38
   Carroll, 916 S.W.2d at 497.
39
   Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009); Carroll, 916 S.W.2d at 498.
40
   Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); Carroll, 916 S.W.2d at 498.
                                             13
       WITNESS: Yes, sir.

       DEFENSE: And you were on probation for weapons charges, correct?

       WITNESS: Yes, sir.

              STATE:       Objection,Your Honor. May we approach?

       (R.R. Vol. 4, p. 53).

       After a hearing at the bench, the trial court sustained the State’s objection

and instructed the jury to “disregard the last answer of the witness and give it no

weight or consideration in your deliberations.” (R.R. Vol. 4, p. 54). Therefore, the

only question and answer excluded by the trial court was that the offense for which

Ms. Hall was on probation for was a weapons charge. The question and answer

that Ms. Hall was on probation when the robbery happened was not excluded by

the trial court.

       Appellate now complains that such testimony should have been allowed

because “[i]nquiry into her probation on the weapons charges could have been

brought to light new evidence with regard to who actually brought the gun.”

Additionally, he argues bias could have also been demonstrated if the witness

received any special consideration on a probation revocation. The testimony that

the witness was on probation was not excluded. The trial court did not abuse its

discretion by preventing the Appellant to go into what the charge that Ms. Hall was

on probation for.

                                         14
         Appellant relies upon Davis v. Alaska and its Texas progeny for the

proposition that any witness who is on probation may be cross-examined about that

status to show a potential bias or motive to testify for the State.

         In Carpenter v. State41, the Court of Criminal Appeals held that, in the

context of cross-examination of a witness with pending charges, “[f]or the

evidence to be admissible, the proponent must establish some causal connection or

logical relationship between the pending charges and the witness' ‘vulnerable

relationship’ or potential bias or prejudice for the State, or testimony at trial.”42

That is, a “vulnerable relationship” based on a witness's pending charges or

probationary status does not hover cloud-like in the air, ready to rain down as

impeachment evidence upon any and all such witnesses. There must be some

logical connection between that “vulnerable relationship” and the witness's

potential motive for testifying as he does. Evidence that a witness is on probation,

is facing pending charges, or has a prior juvenile record is not relevant for purposes

of showing bias or a motive to testify absent some plausible connection between

that fact and the witness's testimony. In the present case, stretching the Appellant’s

argument to the trial court, the only plausible connection was that there was a gun

used during the robbery and that Ms. Hall was on probation due to a weapons

charge. That alleged connection is insufficient to create the necessary logical

41
     979 S.W.2d 633 (Tex. Crim. App. 1998).
42
     Id. At 634-35 & n.4.
                                              15
connection between that “vulnerable relationship” and the witness’s potential

motive for testifying as he does. Therefore, it was not an abuse of discretion for the

trial court to limit Appellant’s cross examination of Ms. Hall.

      C. Harm Analysis

         Assuming, arguendo, that this court finds it was error to limit the cross-

examination of Ms. Hall, any error was harmless beyond a reasonable doubt.

When making a determination whether the alleged error did not contribute to the

conviction, a reviewing court must first assume that the damaging potential of the

cross-examination was fully realized.43 Then this court must review the entire

record and consider the following factors: (1) the importance of the witness’s

testimony in the prosecution’s case, (2) whether the testimony was cumulative, (3)

the presence or absence of evidence corroborating or contradicting the testimony of

the witness on material points, (4) the extent of cross-examination otherwise

permitted, and (5) the overall strength of the prosecution’s case.44

         It is undisputed that the witness was a co-defendant in this case. While the

fact that Ms. Hall was on probation was introduced before the jury, the Appellant

complains that he was unable to further explore that she was on probation for a

weapons charge to demonstrate bias. In this case, there was video surveillance of

the Appellant implicating him in the crime and as the one who was using the

43
     See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
44
     Id.
                                                16
weapon to commit the crime. Therefore, the fact that Ms. Hall had a prior weapons

charge was irrelevant to the facts of the present case. Ms. Hall was fully cross-

examined on the fact that she was given a fifteen year sentence on a lesser-

included offense of robbery and that as part of that agreement she would have to

testify against the Appellant. (R.R. Vol. 4, p. 55). Evaluating the record as a whole,

this court can have assurances the that any error in limiting the cross-examination

was harmless beyond a reasonable doubt.

       For these reasons, Appellant’s third point of error should be overruled.



                       Reply to Point of Error Four and Five

       The trial court did not err by allowing the introduction of extraneous
       offenses and bad acts.

       The State will reply to Appellant’s fourth and fifth points of error jointly, as

Appellant’s brief also consolidated the two points of error.



                              Argument and Authorities

A. Standard of Review

       The trial court has wide discretion in deciding whether to admit or exclude

evidence.45 When considering whether a trial court’s decision to admit or exclude


45
  Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990); Wilder v. State, 111
S.W.3d 249, 255 (Tex. App.—Texarkana 2003, pet. ref’d).
                                             17
evidence is error, an appellate court must determine whether the trial court abused

that discretion.46 This inquiry depends on the facts of each case.

       When reviewing a trial court’s decision to admit or exclude evidence, an

appellate court must afford great deference to the trial court’s balancing

determination and should reverse a trial court “rarely and only after a clear abuse

of discretion.”47 An abuse of discretion occurs only when the trial court acts

arbitrarily or unreasonably without reference to any guiding rules or principles.48

Even if the reviewing court might have reached a different result, the court must

uphold the trial court’s decision to admit or exclude evidence if it was within the

“zone of reasonable disagreement.”49 A trial court’s evidentiary ruling must be

upheld if it was correct under any theory of law applicable to the case.50

B. Application of Law to Facts

       Article 37.07, section 3(a) provides that the State may introduce “evidence

of an extraneous crime or bad act that is shown beyond a reasonable doubt by




46
   Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Robinson v. State, 35
S.W.3d 257, 263 (Tex. App.—Texarkana 2000, pet. ref’d).
47
   Robbins v. State, 88 S.W.3d 256, 262 (Tex. Crim. App. 2002).
48
   Lincicome v. State, 3 S.W.3d 644, 646 (Tex. App.—Amarillo 1999, no pet.); Phelps v. State,
999 S.W.2d 512 (Tex. App.—Eastland 1999, pet. ref’d); see Montgomery, 810 S.W.2d at 372.
49
   Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (citing Montgomery, 810
S.W.2d at 391); Weatherred, 15 S.W.3d at 542; Taylor v. State, 93 S.W.3d 487, 505-506 (Tex.
App—Texarkana 2002, pet. ref’d.); Goodwin v. State, 91 S.W.3d 912, 917 (Tex. App—Fort
Worth 2002, no pet.).
50
   De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
                                              18
evidence to have been committed by the defendant.”51 The Court of Criminal

Appeals has made clear that the beyond-a-reasonable-doubt standard of this statute

is the same as that applied during the guilt-innocence phase.52

       Appellant argues that the trial court should have made an initial finding of

proof beyond a reasonable doubt that the defendant has committed the bad act as

alleged as a prerequisite to admissibility during the punishment phase. However,

under this statute, the trial court makes a threshold determination of whether the

evidence is relevant and thus admissible.53 In conducting this inquiry, the court

determines whether “the jury could reasonably find beyond a reasonable doubt that

the defendant committed the extraneous offense.”54

       At trial, the State sought to illicit testimony from Detective Giddens that the

Appellant had prior contacts with law enforcement other than the present offense.

(R.R. Vol. 5, p. 34). Those prior incidents did not result in convictions, but were

still admissible under Texas Code of Criminal Procedure article 37.07 § 3(a)(1),

which allows for “any other evidence of an extraneous crime or bad act that is

shown beyond a reasonable doubt by evidence to have been committed by the


51
   Tex. Code Crim. Proc. art. 37.07 § 3(a).
52
   See Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App.1996) (“When evidence of
extraneous offenses has been offered, regardless of the respective phase of a trial, the law
requires that it be proved beyond a reasonable doubt”).
53
   See Mitchell, 931 S.W.2d at 953; Thompson v. State, 4 S.W.3d 884, 886 (Tex.App.—Houston
[1st Dist.] 1999, pet. ref'd).
54
   Thompson, 4 S.W.3d at 886 (citing Harrell v. State, 884 S.W.2d 154, 160–61
(Tex.Crim.App.1994))
                                             19
defendant or for which he could be held criminally responsible, regardless of

whether he has previously been charged with or finally convicted of the crime or

bad act.”

          The Appellant’s attorney objected that Detective Giddens had no personal

knowledge of the prior incidents. (R.R. Vol. 5, p.31). His objections at trial were

that the testimony violated Texas Rule of Evidence 403, the Confrontation Clause,

and was hearsay. (R.R. Vol. 5, p. 35). The trial court reviewed the evidence and

overruled the Appellant’s objections, thus making a finding the evidence was

relevant, and its prejudicial effect of the evidence did not substantially outweigh its

probative value.

          Therefore, it was not error for the trial court to allow the introduction of the

evidence.

C. Harm Analysis

          Should this Court find that the trial court erred by allowing introduction of

the extraneous offense evidence, such error does not constitute reversible error.

          Under Rule 44.2(b) non-constitutional error must be disregarded if it does

not affect the appellant’s substantial rights.55 A substantial right is affected when

the error had a “substantial and injurious effect or influence in determining the




55
     Tex. R. App. Proc. 44.2(b)
                                             20
jury’s verdict.”56 To assess the likelihood that the jury's decision was adversely

affected by the erroneous admission of evidence, the reviewing court considers the

entire record, including the other evidence admitted, the nature of the evidence

supporting the verdict, and the character of the error in light of the other evidence

in the case.57 In a harm analysis under Rule 44.2(a), “the presence of

overwhelming evidence supporting the finding in question can be a factor in the

evaluation of harmless error.”58         The reviewing court will also consider the

arguments of counsel and the extent to which the State emphasized the improper

evidence.59

       The Appellant was sentenced to twenty-five years for a first degree felony.

The punishment range for a first degree felony is 5-99 years or life in the Texas

Department of Criminal Justice. Any reasonable juror could have reasonably

sentenced the Appellant to twenty-five years based solely on the offense of

Aggravated Robbery, absent any prior bad acts or extraneous offenses.

       David Bennett also testified during punishment that he works as a

correctional officer at the Bowie County Correction Center. (R.R. Vol. 5, p. 63).

Mr. Bennett testified that Beham violated the policy of the jail when he put his


56
   Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); Johnson v. State, 967 S.W.2d
410, 417 (Tex. Crim. App. 1998); Shugart v. State, 32 S.W.3d 355, 363 (Tex. App.—Waco
2000, pet. ref’d); Matz v. State, 21 S.W.3d 911, 912(Tex. App.—Fort Worth 2000).
57
   See Motilla v. State, 78 S.W.3d 352, 357-58 (Tex. Crim. App. 2002).
58
   Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000).
59
   See Motilla v. State, 78 S.W.3d at 357.
                                             21
hands on Mr. Bennett and tried to pat him down. (R.R. Vol. 5, p. 65).Another jailer

testified that he witnessed Beham commit a major infraction while housed in the

Bowie County Correctional Center, for which the Appellant was placed in

administrative segregation. (R.R. Vol. 5, p. 74-75). Yet another jailer testified to

catching Beham stealing out of the kitchen. (R.R. Vol. 5, p. 78). Testimony was

also heard of the Appellant assaulting another inmate at the jail. (R.R. Vol. 5, p.

83). Shane Kirkland testified that the Appellant was demonstrating known gang

signs in certain photographs admitted into evidence. (R.R. Vol. 5, p. 92).

      Based on a review of the evidence presented during the punishment phase,

this court can have assurances that any error did not contribute to the punishment

verdict beyond a reasonable doubt.

      For these reasons, Appellant’s fourth and fifth points of error should be

overruled.




                                         22
                                  Prayer for Relief

      WHEREFORE, PREMISES CONSIDERED, there being legal and

competent evidence sufficient to justify the conviction and punishment assessed in

this case and no reversible error appearing in the record of the trial of the case, the

State of Texas respectfully prays that this Honorable Court affirm the judgment

and sentence of the trial court below.



                                               Respectfully Submitted:

                                               Jerry D. Rochelle
                                               Criminal District Attorney
                                               Bowie County, Texas
                                               601 Main Street
                                               Texarkana, Texas 75501
                                               Phone: (903) 735-4800
                                               Fax: (903) 735-4819



                                               __/s/Lauren N. Sutton____________
                                         By:   Lauren N. Sutton
                                               Assistant District Attorney
                                               601 Main Street
                                               Texarkana, Texas 75501
                                               Phone: (903) 735-4800
                                               Fax: (903) 735-4819

                                               Attorneys for the State




                                          23
                             Certificate of Compliance

      I, Lauren N. Sutton, certify that, pursuant to Rule 9 of the Texas Rules of

Appellate Procedure, Appellee’s Brief contains 4,837 words, exclusive of the

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of

service, certification, certificate of compliance, and appendix.



                                               __/s/Lauren N. Sutton__________________
                                               Lauren N. Sutton




                                          24
                              Certificate of Service

      I, Lauren N. Sutton, certify that I have served a true and correct copy of the

foregoing Brief for the State upon Mr. Al Smith, Attorney for Appellant, on this

the 22th day of July, 2015.



                                             __/s/Lauren N. Sutton___________
                                             Lauren N. Sutton




                                        25
