                                   NO. 07-01-0393-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                    AUGUST 9, 2002

                         ______________________________


                           MARION D. JONES, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2001-435,869; HONORABLE CECIL PURYEAR, JUDGE

                         _______________________________

Before BOYD, C.J., and QUINN and REAVIS, JJ.


       Upon a plea of not guilty, appellant Marion D. Jones was convicted by a jury of

assault on a public servant, enhanced, and the trial court assessed punishment at ten

years confinement. By a single issue, appellant contends the trial court erred by not

allowing evidence that one of the State’s witnesses was on deferred adjudication

community supervision when he testified. By reply brief, the State candidly concedes error,

and acknowledges that under Maxwell v. State, 48 S.W.3d 196, 200 (Tex.Cr.App. 2001),
appellant should have been granted unlimited cross-examination of this witness. However,

it contends the error was harmless. Reviewing the record as required by TEX . R. APP. P.

44.2(a), we conclude the judgment must be reversed.


       Appellant attempted to leave a Family Dollar store in Lubbock, Texas, without

purchasing any merchandise when she was stopped by the store manager on suspicion

of shoplifting. Appellant accompanied the manager to his office, where he called the

police. When the responding officer arrived he was unable to converse with the store

manager because of appellant’s interruptions, profanity, and threats to sue the store. As

instructed by the officer, appellant sat down, but continued her profanity and interruptions.

Because of safety concerns, the officer handcuffed appellant, at which time she began

slamming herself into a wall. The State contends that as the officer attempted to restrain

appellant, she kicked the officer on his legs several times.


       The responding officer, the store manager, and a former store employee were called

as witnesses by the State to prove the offense charged in the indictment. At the

conclusion of his direct examination, the prosecutor requested and was granted the

opportunity to examine the former store employee outside the jury’s presence. On the

State’s voir dire, the witness acknowledged he was on community supervision for an

offense, but stated he had not been promised anything in exchange for his testimony.

Upon examination by appellant’s counsel, the witness acknowledged he would be under

community supervision until September 2002.            Appellant argued for the right to


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cross-examine the witness in front of the jury on the status of his deferred adjudication in

order to show a potential motive, bias or interest to testify for the State. Notwithstanding

appellant’s argument, the trial court announced


       With regard to the matter before the Court, the Court finds that [the witness]
       has not been finally convicted of a felony in this cause, and will deny the
       request to go into the deferred adjudication.


       And I’ll allow you to carry a running objection to . . . those matters.


       Relying on Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d

347, 353 (1974), appellant argues the trial court’s exclusion of evidence that a State’s

witness was on deferred adjudication violated his right to cross-examine and confront the

witness. The erroneous denial of the right of confrontation of witnesses is “constitutional

error of the first magnitude and no amount of showing of want of prejudice [will] cure it.”

Parker v. State, 657 S.W.2d 137, 139 (Tex.Cr.App. 1983) (en banc). The State concedes

the limitation placed on appellant’s cross-examination was error, but contends that under

Maxwell, it is subject to a harmless error analysis. The State agrees our review is

governed by T EX . R. APP. P. 44.2(a) which provides we


       must reverse a judgment of conviction or punishment unless the court
       determines beyond a reasonable doubt that the error did not contribute to the
       conviction or punishment.


       Under TEX R. APP. P. 44.2(a) the State carries the burden to show beyond a

reasonable doubt that the error made no contribution to the verdict. Crosson v. State, 36

                                              3
S.W.3d 642, 645 (Tex.App.–Houston [1st Dist.] 2000, no pet.) (citing Williams v. State,

958 S.W.2d 186, 194 n.9 (Tex.Cr.App.1997); Merritt v. State, 982 S.W.2d 634, 636

(Tex.App.–Houston [1st Dist.] 1998, pet. ref'd, untimely filed). In our analysis of the error,

we consider five factors: (1) the importance of the witness’s testimony in the prosecution

of the 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. Shelby v. State, 819 S.W.2d 544, 547 (Tex.Cr.App.1991) (en banc).


       We commence our analysis by observing appellant was not charged with resisting

arrest under TEX . PEN . CODE ANN . § 38.03 (Vernon Supp. 2002), and resisting arrest is not

a lesser included offense of assault on a public servant. See TEX . PEN . CODE ANN . § 22.01

(Vernon Supp. 2002); see also Lofton v. State, 45 S.W.3d 649 (Tex.Cr.App. 2001). The

State called only three witnesses to establish the conduct of appellant, to-wit: (1) the

responding officer; (2) the store manager who initiated appellant’s detention; and (3) the

former store employee who was subject to deferred adjudication community supervision.


                                    Factors 2, 3, and 4


       Although the former store employee’s testimony was (2) somewhat cumulative, (3)

other corroborating evidence existed, and (4) cross-examination of the witness was not

otherwise limited, these three factors do not completely control the issue or preclude

further analysis.

                                              4
                                     Factors 1 and 5


       Our analysis of factors one and five requires us to consider the law included in the

court’s charge: namely, that the jurors were the sole judges of the facts proved, credibility

of the witnesses, and weight to be given their testimony. Civil case law acknowledges that

testimony of a disinterested witness undoubtedly carries more weight over similar

testimony from an interested witness. See Tinkle v. Henderson, 777 S.W.2d 537, 539

(Tex.App.–Tyler 1989, writ denied). Although a civil assault case, in Boothe v. Hausler,

766 S.W.2d 788 (Tex. 1989), the Court held that as the only non-party not assaulted, a

witness was disinterested and therefore his testimony was dispositive on the material

issue. Here, the testimony and opportunity to unrestricted cross-examination takes on

considerably more importance because of the constitutional implications in this case not

presented in civil cases.


                   Importance of the Witness’s Testimony To State


       Over one month before trial, appellant’s counsel filed a motion requesting the State

list and furnish the criminal history of its witnesses. Notwithstanding appellant’s request,

the State called the witness and contended that he was not subject to cross-examination

about his status on deferred adjudication because the prosecutor made no threats to

secure his testimony. From the State’s vigorous protection of this witness from unlimited

cross-examination, we can infer the State considered his testimony to be important.



                                             5
                            Overall Strength of State’s Case


      The officer did not require any medical attention,1 and no “bodily injury” was visible.

Further, the testimony of the officer and the store manager was enhanced by the limited

testimony of the former store employee, ostensibly a disinterested witness. However,

endeavoring to determine the strength of the State’s case given unlimited cross-

examination of the former store employee by defense counsel would require us to assume

the jury’s role of determining the credibility and weight to be given witness testimony.

Unlimited cross-examination would have revealed to the jury that the former store

employee was not completely disinterested, and he did in fact have a potential motive,

bias, or interest to testify for the State. Evaluating such potential motives or bias falls

within the exclusive province of the jury.       Fowler v. State, 65 S.W.3d 116, 118

(Tex.App.–Amarillo 2001, no pet.).


       Similar to the court in Shelby, 819 S.W.2d at 551, our final step requires us to

determine, in light of the foregoing examination, whether the error was harmless beyond

a reasonable doubt, and whether the State met its burden of proof. The State argues in

the absence of any evidence the witness’s probation status was in jeopardy, the damaging

impact of the excluded evidence was minimal, and the error harmless. The State’s

contention that any impact of the excluded evidence was “minimal” suggests we are to

measure whether the harm was significant, or merely some harm. However, the rule


      1
          Emergency Medical Service personnel provided an ice pack only.

                                             6
makes no such distinction. Moreover, this contention overlooks the rule that it is the

exclusive province of the jury to determine the credibility of the witnesses and the weight

to be given their testimony. Fowler, 5 S.W.3d at 118. Therefore, the jury should determine

whether testimony was influenced by inherent coercion or intimidation. In this case, the

jury was deprived of the opportunity to make such a determination because of the

limitations placed upon cross-examination of the former store employee. We cannot say

this testimony, inaccurately represented to the jury as disinterested witness testimony,

beyond a reasonable doubt did not contribute to the conviction.


       Considering the foregoing, and because the testimony was represented as being

from a disinterested witness, we accept the proposition that his testimony would normally

be accorded more credibility than the testimony of either the officer or the store manager.

Therefore, we are unable to conclude the error was harmless beyond a reasonable doubt.

Appellant’s sole issue is sustained.


       Accordingly, the judgment of the trial court is reversed and the cause is remanded

for a new trial.



                                          Don H. Reavis
                                            Justice

Quinn, J., dissenting.


Publish.


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