             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                     NO. PD-0473-13



                         THAXTON D. JOHNSON, Appellant

                                               v.

                                THE STATE OF TEXAS



           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FIRST COURT OF APPEALS
                            HARRIS COUNTY

      P RICE, J., delivered the opinion of the Court in which K ELLER, P.J., and M EYERS,
W OMACK, K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. J OHNSON, J.,
concurred in the result.

                                        OPINION

       The appellant was convicted by a jury of capital murder and sentenced to life

imprisonment without the possibility of parole.1 At trial, the appellant had sought to cross-

examine two State’s witnesses for bias by informing the jury of the specific felony



       1

       See TEX . PENAL CODE §§ 19.03, 12.31.
                                                                                JOHNSON — 2
charges—and concomitant ranges of punishment—the witness then faced in Harris County.

However, the trial court limited his cross-examination to exposing the fact that the witnesses

stood accused only of certain unspecified “felonies.” On appeal, the First Court of Appeals

rejected the appellant’s claim that the trial court’s ruling violated his right under the

Confrontation Clause to effectively cross-examine adverse witnesses and affirmed the

conviction.2 In his petition for discretionary review, the appellant urges this Court to reverse

the court of appeals on the rationale that “[m]erely informing the jury that the State’s

witnesses had pending felony indictments is insufficient to accomplish what the Sixth

Amendment right of confrontation intends[.]” 3 We will affirm.

                        FACTS AND PROCEDURAL POSTURE

                                    A. The Investigation

       In the early hours of Valentine’s Day 2010, Susan Griert awoke to the sounds of

shattering glass and the voice of her boyfriend, William Thompson, crying out for her. She

found Thompson lying on the floor of their bedroom with blood “gushing up out of his

mouth,” the result of gunshot wounds to his chest and face. She called 9-1-1 emergency

services and was directed to administer CPR until paramedics arrived at the scene. Though

first responders arrived in time to administer aid to Thompson, he ultimately succumbed to



       2

       Johnson v. State, 2013 WL 1451292, at *8 (Tex. App.—Houston [1st Dist.] Apr. 9, 2013)
(mem. op., not designated for publication).
       3

        Appellant’s Petition for Discretionary Review at 3-5.
                                                                                   JOHNSON — 3
his wounds and was later pronounced dead.

       In the course of the ensuing murder investigation, Houston Police Department

detectives discovered that the appellant, a handyman whom Thompson and Griert had often

paid to do odd jobs, recently had a falling out with the couple. As they dug deeper into the

appellant’s connection with the victim, detectives came into contact with brothers Joseph and

Stefan Kennedy. Stefan, a friend of the appellant, told investigators that the appellant, while

walking with Stefan through Thompson’s neighborhood on the night of the shooting, stopped

in front of Thompson’s house and “pulled up his shirt,” exposing the wooden handle of a

gun. Evidently panicked, Stefan fled the scene. As he did so, he “heard . . . a loud noise”

that sounded “like a boom,” as though “a door was being kicked.” Joseph, meanwhile, told

investigators that “around that time” he received a phone call from the appellant, who

threatened to “kill Brandon [a third Kennedy brother] and Stefan” if they “snitch[ed]” on

him. On the basis of these allegations and other evidence tying the appellant to Thompson’s

murder, the appellant was arrested and charged with capital murder.4

                                           B. At Trial

       After receiving notice of the State’s intent to call Joseph and Stefan as witnesses

against him, the appellant discovered that each brother was facing at least one felony charge


       4

          One witness testified that the “appellant told her that he had robbed someone to get money
and marijuana[.]” Johnson, 2013 WL 1451292, at *3; see also TEX . PENAL CODE § 19.03(a)(2) (“A
person commits [capital murder] if the person commits murder as defined under Section 19.02(b)(1)
and . . . the person intentionally commits the murder in the course of committing or attempting to
commit . . . robbery[.]”).
                                                                              JOHNSON — 4
in Harris County. Specifically, Joseph was under indictment for two counts of first-degree

felony theft, while Stefan was indicted for first-degree felony aggravated robbery, state-jail

felony theft, and Class-A misdemeanor assault. Accordingly, in a pretrial hearing, counsel

for the appellant made the following request:

       [F]or the purpose of the Defense, I believe that two of the witnesses – a Mr.
       Joseph Kennedy, if he’s called, and Mr. Stefan Kennedy, if he is called – have
       pending felony cases. We believe that it would be appropriate on cross-
       examination to examine in front of the jury whether or not any offers have
       been made or whether or not they are testifying with the idea that this will be
       of benefit.

The trial court initially “ha[d] no problem with that,” and granted the defense request. Later

in the hearing, however, the State asked “orally in a motion in limine” that the appellant’s

counsel “not be allowed to go into what those pending charges are or anything they might

have in a pending case.” The appellant’s counsel responded:

              I think the fact that what the cases are – the degree and the range of
       punishment that he is facing – are absolutely material as to the degree to which
       these might influence him in terms of garnering favor for the State for his
       testimony.

              Certainly, if somebody has pending misdemeanor cases – a great deal
       different than if someone has a pending first-degree felony. We agree that is
       part of the equation . . . of what goes into the possible fabrication and the
       possible tipping of the testimony against my client[.]

The trial court, evidently disagreeing, issued a preliminary ruling as to the admissibility of

the specific felony offenses and punishment ranges the Kennedy brothers faced: “Those two

will not be admitted before the jury[.]” The trial court later clarified that it would permit

counsel to “ask whether or not those things that are pending: Are they misdemeanors or are
                                                                                      JOHNSON — 5
they felonies? That’s it.”

        Several times throughout the trial, the appellant asserted his “constitutional right” to

“confront the witnesses against [his] client” by “getting into whether or not there was

anything out there that may influence his testimony against my client.” Over the State’s

objection that “any further questioning” relating to the specific offenses and punishment

ranges would be “beyond any [Rule] 609 impeachable conviction,”5 the appellant beseeched

the trial court to allow him to “provide copies of the indictments in each case” so as to

“identify what those cases are.” The appellant sought also to “ask [each witness] to inform

the jury that these were first-degree felonies and that the punishment range for a first-degree

felony is from five to ninety-nine years or life[.]” Each time this request was made, however,

the trial court adhered to its earlier ruling that the extent of the appellant’s cross-examination

of the Kennedy brothers’ pending charges would be limited to eliciting their classification

as either “misdemeanors” or “felonies.” The appellant was ultimately convicted of capital

murder, and, since the State did not seek the death penalty, the appellant’s sentence was

automatic: imprisonment for life without the possibility of parole.

                                           C. On Appeal

        Before the First Court of Appeals, the appellant argued that “as a result” of the trial



        5

        See TEX . R. EVID . 609(a) (“For the purpose of attacking the credibility of a witness, evidence
that the witness has been convicted of a crime shall be admitted . . . but only if the crime was a
felony or involved moral turpitude . . . and the court determines that the probative value of admitting
this evidence outweighs its prejudicial effect to a party.”).
                                                                                JOHNSON — 6
court’s limitation on his cross-examination of Joseph and Stefan “he was denied the ability

to confront th[ose] witnesses in violation of the Sixth Amendment of the United States

Constitution.”6 As he had argued before the trial court, the appellant reasoned that “there

was a causal connection . . . between the witnesses’ ‘vulnerable status’ and their potential

bias to testify in a manner favorable to the State,” and that the strength of that causal

connection could not be optimally explored on cross-examination without delving into the

nature, degree, and punishment ranges of the offenses underlying the charges pending against

each witness.7

       The court of appeals disagreed, holding that the appellant had not adequately

established the requisite “causal or logical connection between the charges pending . . . and

any bias based on [the witnesses’] expectation of . . . favorable treatment by the State[,]”

thereby essentially failing to show the relevance of the proffered evidence.8 The court of

appeals reasoned that “[t]he admission of . . . the indictments in the pending cases and

testimony about the punishment range . . . would not have any further shown Joseph or

Stefan’s ‘vulnerable relationship’ with the State” than the testimony actually elicited at trial:




       6

        Johnson, 2013 WL 1451292, at *5.
       7

        Id.
       8

        Id. at *8.
                                                                                      JOHNSON — 7
that both witnesses were simply facing “felony” charges in Harris County.9 And as the

appellant was, in its opinion, “otherwise afforded an opportunity for a thorough and effective

cross-examination,” the court of appeals ruled that “the trial court did not err in limiting

appellant’s request for further cross-examination about the specific felony charges . . . and

the punishment range of those offenses,” and it accordingly affirmed the judgment of

conviction below.10

                                             THE LAW

        The Sixth Amendment to the United States Constitution provides, in relevant part, that

“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.”11 While, as its name would suggest, this “Confrontation Clause”

generally protects the defendant’s right to physically “confront” his accusers face-to-face,12

this is hardly the only right protected by the Confrontation Clause.13 Rather, “[t]he main and



        9

        Id.
        10

        Id. at *8-9.
        11

        U.S. CONST . amend. VI.
        12

          See, e.g., Crawford v. Washington, 541 U.S. 36, 57 (2004) (“The substance of the
constitutional protection is preserved to the prisoner in the advantage . . . of seeing the witness face
to face[.]”) (quoting Mattox v. United States, 156 U.S. 237, 244 (1895)).
        13

       See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 678 (“The right of confrontation . . . means
more than being allowed to confront the witness physically.”) (quoting Davis v. Alaska, 415 U.S.
308, 315 (1974)) (internal quotation marks omitted).
                                                                                     JOHNSON — 8
essential purpose of confrontation is to secure for the opponent the opportunity of cross-

examination[,]” because that is “the principal means by which the believability of a witness

and the truth of his testimony are tested.” 14

       To that end, we have held that “it is not within a trial court’s discretion to prohibit a

defendant from engaging in ‘otherwise appropriate cross-examination designed to show a

prototypical form of bias on the part of the witness,’”15 Nor, indeed, may a trial court prevent

a defendant from “pursu[ing] his proposed line of cross examination” when it can be said that

“[a] reasonable jury might have received a significantly different impression of [the

witness]’s credibility had . . . counsel been permitted” to do so.16 The Fifth Circuit has

added, in this context, that until it can be “determine[d] that the cross examination satisfied

the Sixth Amendment, the [trial] court’s discretion” simply “does not come into play.” 17 This

qualification of a trial court’s discretion to limit cross-examination for bias appropriately

accounts for the fact that “the exposure of a witness’ motivation in testifying is a proper and

important function of the constitutionally protected right of cross-examination[,]” and is

       14

           Davis, 415 U.S. at 315-16 (quoting 5 J. Wigmore, Evidence § 1395, p.123 (3d ed. 1940)).
       15

           Hurd v. State, 725 S.W.2d 249, 252 (Tex. Crim. App. 1987) (quoting Van Arsdall, 475 U.S.
at 680).
       16

           Van Arsdall, 475 U.S. at 680.
       17

        See United States v. Landerman, 109 F.3d 1053, 1061-62 (5th Cir. 1997) (“Although the
scope of cross examination is within the discretion of the district court, that discretionary authority
comes about only after sufficient cross examination has been granted to satisfy the Sixth
Amendment.”).
                                                                                 JOHNSON — 9
“always relevant as discrediting the witness and affecting the weight of his testimony.” 18

          This is not to say that trial courts do not “retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits on such cross-examination,”

so long as those limits do not operate to infringe upon the Confrontation Clause’s guarantee

of “an opportunity for effective cross-examination.”19 After all, the accused is not entitled

to “cross-examination that is effective in whatever way, and to whatever extent,” he might

wish.20 In light of this, in those circumstances in which the defendant seeks to “impeach a

witness with evidence of pending criminal actions,” we have said that the trial court does

have discretion to place limits on those areas of cross-examination in which the defendant

fails to “establish some causal connection or logical relationship between the pending

charges and the . . . ‘vulnerable relationship’” alleged.21 This is because a defendant who

cannot persuasively establish this connection has essentially failed to demonstrate that the

evidence he seeks to introduce (i.e., the existence and/or severity of the pending charges) is

relevant to prove the allegation of bias.22


          18

          Davis, 415 U.S. at 316-17 (quoting 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev.
1970)).
          19

          Van Arsdall, 475 U.S. at 679 (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).
          20

          Id.
          21

          Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998).
          22

          Id. at 635.
                                                                                   JOHNSON — 10
       Given that our “causal connection” requirement is ultimately rooted in the concept of

relevance, however, it must also be borne in mind that “[t]he failure to affirmatively establish

the fact sought does not prevent the cross-examination from having probative value in regard

to the witness’ credibility.”23 This sensibility is aptly expressed in an oft-repeated legal

aphorism: “A brick is not a wall.”24 To be considered “relevant,” the proffered evidence

need not definitively prove the bias alleged—it need only “make the existence” of bias “more

probable or less probable than it would be without the evidence.”25 The question in this case

is whether the Confrontation Clause guarantees that the accused be permitted to use every

brick at his disposal—no matter how incrementally it may serve to reinforce the wall.


       23

       Carroll v. State, 916 S.W.2d 494, 500 (Tex. Crim. App. 1996) (quoting Spain v. State, 585
S.W.2d 705, 710 (Tex. Crim. App. 1979)).
       24

        Cf. Steven Goode, Olin Guy Wellborn III, & M. Michael Sharlot, 1 TEXAS PRACTICE : GUIDE
TO THE TEXAS RULES OF EVIDENCE § 401.3, at 115-16 (3d ed. 2002) (“To be relevant, the offered
item of evidence need not establish a prima facie case. McCormick explains the distinction between
relevancy and sufficiency:

       Whether the entire body of one party’s evidence is sufficient to go to the jury is one
       question. Whether a particular item of evidence is relevant is quite another. It is
       enough if the item could reasonably show that a fact is slightly more probable than
       it would appear without that evidence. . . . Thus, the objection that the inference for
       which the fact is offered ‘does not necessarily follow’ is untenable. It poses a
       standard of conclusiveness that very few single items of circumstantial evidence ever
       could meet. A brick is not a wall.

This statement of the principle is fully consistent with Texas case law.”) (footnotes and citations
omitted) (quoting McCormick, EVIDENCE § 185 (5th ed. 1999)).
       25

         See TEX . R. EVID . 401 (“‘Relevant evidence’ means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.”).
                                                                                   JOHNSON — 11
                                           ANALYSIS

                                  A. No Logical Connection?

         The court of appeals determined that the “appellant did not introduce additional facts

showing any causal or logical connection between the charges pending against Joseph and

Stefan and any bias based on their expectation of a deal . . . for more favorable treatment by

the State based on their testimony in appellant’s trial.”26 In support of this conclusion, the

court of appeals relied upon our opinions in Carpenter v. State and Irby v. State, two cases

in which we held that evidence alleged by the respective defendants to demonstrate an

accusatory witness’s “vulnerable relationship” with the State was properly excluded due to

each defendant’s failure to establish a “causal” or “logical” connection between the evidence

and the bias alleged.27 The appellant, meanwhile, claims that the court of appeals’s reliance

on these cases is misplaced, as each of the tentative “connections” between the evidentiary

proffers and biases in Carpenter and Irby is markedly weaker than the connection articulated

at trial and on appeal in this case.28


         26

         Johnson, 2013 WL 1451292, at *8.
         27

         See Carpenter, 979 S.W.2d at 635; Irby v. State, 327 S.W.3d 138, 154 (Tex. Crim. App.
2010).
         28

         In his petition for discretionary review, the appellant asks us to review only the court of
appeals’s determination that “the trial court did not abuse its discretion when it restricted defense
counsel from eliciting from the state’s witnesses the types of felony offenses and their ranges of
punishment which were pending against those state’s witnesses.” Appellant’s Petition for
Discretionary Review at 2 (emphasis added). We express no opinion, therefore, as to whether the
court of appeals erred to hold that “[t]he admission of copies of the indictments in the pending cases
                                                                                  JOHNSON — 12
       In Carpenter, the defendant was “precluded from cross-examining [a] State’s witness”

about the “federal conspiracy charges then pending against” that witness.29 While the

defendant “posit[ed] that the pending federal charges demonstrated [the witness’s] vulnerable

relationship with the State,”30 we were not persuaded:

       Appellant does not argue, and the record does not demonstrate, why
       prosecution by the federal government for theft and conspiracy to possess and
       distribute controlled substances would tend to show that the witness’ testimony
       in this unrelated state prosecution . . . might be biased. * * * [T]he testimony
       in support of Appellant’s bill of exception does no more than establish the
       factual basis of the pending federal charges.31

On the basis of the defendant’s failure to show a “logical connection” between the federal

charges and the witness’s potential for bias, we concluded that “the Court of Appeals’

determination that there was a danger that allowing such cross-examination would confuse

the jury, or tempt it to use the facts developed in an improper way,” was “sound.” 32

       In Irby, the defendant “wanted to cross-examine [the testifying complainant] about

the fact that he was on deferred-adjudication probation for aggravated assault with a deadly




. . . would not have any further shown Joseph or Stefan’s ‘vulnerable relationship’ with the State or
any potential motive, bias, or interest.” Johnson, 2013 WL 1451292, at *8 (emphasis added).
       29

        Carpenter, 979 S.W.2d at 633-34.
       30

        Id. at 634.
       31

        Id. at 635.
       32

        Id. (internal quotation marks omitted).
                                                                              JOHNSON — 13
weapon.”33 As in Carpenter, the defendant argued to the trial judge that the witness’s

“‘vulnerable status’ was relevant to show bias and motive[.]” 34 Once again, however, we

held that the “appellant failed to make a logical connection between [the complainant’s]

testimony . . . and his entirely separate probationary status[.]” 35 Reasoning that a mere

showing of the witness’s “vulnerable relationship” with the State, if evidenced only by his

probationary status, would not make it any more or less probable that the witness harbored

some bias in favor of the State, we concluded that “the trial judge did not abuse his discretion

in excluding this impeachment evidence because it was irrelevant.” 36

       At least with respect to the “nature” of the witnesses’ alleged offenses (i.e., the type

of felonies), we disagree with the appellant that he has provided any stronger a logical

connection between the evidence proffered and the bias alleged than either of the posited

connections we found to be inadequate in Carpenter and Irby. The fact that a witness stands

accused of (for example) “felony theft” would not, if presented to the jury, make that witness

seem any more prone to testifying favorably for the State than a similarly situated witness

who stood accused only of some unspecified “felony.” Both hypothetical witnesses—the one



       33

        Irby, 327 S.W.3d at 140.
       34

        Id.
       35

        Id. at 154.
       36

        Id.
                                                                               JOHNSON — 14
accused of “felony theft” and the other accused of the unspecified “felony”—would stand

in the same vulnerable relation to the State; other things being equal, they would be subject

to the same risk and extent of punishment. In other words, had the jury been presented with

the fact that Joseph’s felony charges were actually “felony theft” charges (and that Stefan’s

were actually “felony robbery” charges), it would have had no incrementally greater capacity

to evaluate his potential for bias—its perception of the witness’s vulnerable relationship with

the State would be essentially the same as before. Thus, as in Carpenter, “Appellant’s bill

of exception[,]” insofar as it pertains to the nature of the witnesses’ charged offenses, “does

no more than establish the factual basis of the pending [State] charges.” 37

       On the other hand, unlike the nature of a charged offense, the range of punishment

attendant to a charged offense does have an incrementally greater impact on the jury’s ability

to assess the witness’s motive to alter or fabricate his testimony. A jury privy to the

considerable extent to which the State might seek, were it so inclined, to have the witness

punished in the pending matter would at least be in a better position to assess a witness’s

motive—if not his actual intent—to color his testimony in favor of the State. And from the

jury’s perspective (again, other things being equal), a witness accused of a felony carrying

the potential of a life sentence would be that much more likely—if only by a “brick”—to

seek to mollify the State than a witness merely facing some undifferentiated “felony” charge.

       Further, the punishment-range evidence proffered by the appellant does not


       37

       979 S.W.2d at 633-35.
                                                                                  JOHNSON — 15
merely—as did the proffers in Carpenter and Irby—state a true but inconsequential fact

about each witness. Instead, this evidence would have served to distinguish each witness

from other, merely conceivably biased felony-indicted witnesses in such a way as to make

the existence of the fact sought to be proved (i.e., that the witnesses’s testimonies may have

been influenced by their vulnerable relationships with the State) “more probable or less

probable than it would be without the evidence.”38 We therefore agree with the appellant that

the logical connection between Joseph and Stefan’s punishment ranges and their respective

incentives to curry favor with the State is meaningfully stronger than the connections posited

in either Carpenter or Irby. That evidence was indeed relevant, and at least marginally more

probative, to enhance the showing of their potential biases in favor of the State.

                                     B. Abuse of Discretion

       The appellant having satisfactorily established the relevancy of the pertinent

punishment ranges to proving the bias he attributed to Joseph and Stefan Kennedy, the trial

court would have abused its discretion to exclude that evidence on the basis of the appellant’s

failure to demonstrate a “logical connection” between the two. But a trial court’s discretion

does not simply terminate upon a showing that the proffered impeachment evidence and the

allegation of bias are logically connected.39 Indeed, it is a basic tenet of the law of evidence



       38

        TEX . R. EVID . 401.
       39

         See, e.g., Davis, 415 U.S. at 316 (“Cross-examination is . . . [s]ubject always to the broad
discretion of a trial judge to preclude repetitive and unduly harassing interrogation[.]”).
                                                                                     JOHNSON — 16
that merely establishing the relevancy of proffered evidence does not necessarily guarantee

its admissibility.40    Rather, and specifically “insofar as the Confrontation Clause is

concerned[,]”

       trial judges retain wide latitude . . . to impose reasonable limits on such cross-
       examination based on concerns about, among other things, harassment,
       prejudice, confusion of the issues, the witness’ safety, or interrogation that is
       repetitive or only marginally relevant.41

This latitude is exceeded only when the trial court exercises its discretion to so drastically

curtail the defendant’s cross-examination as to leave him “unable to make a record from

which to argue why [the witness] might have been biased or otherwise lacked that degree of

impartiality expected of a witness at trial.”42          This kind of trial-court error is most

conspicuous, of course, when the trial court entirely forecloses the defense from

exposing—“prohibit[s] all inquiry into”—a “prototypical form of bias.” 43 But it may also

be subtler, such as when the only record-making permitted the defense is so circumscribed

that “[a] reasonable jury might have received a significantly different impression of [the

       40

          See, e.g., TEX . R. EVID . 402 (“All relevant evidence is admissible, except as otherwise
provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory
authority.”) (emphasis added). At trial, the appellant asserted only a Sixth Amendment right to the
admission of evidence relating to the witnesses’ pending charges; he made no identifiable argument
that state law might also afford him the very same right. He neither asserted any such state-law right
on appeal nor elected to do so in his petition for discretionary review.
       41

        Van Arsdall, 475 U.S. at 679.
       42

        Davis, 415 U.S. at 318.
       43

        Van Arsdall, 475 U.S. at 680.
                                                                               JOHNSON — 17
witness’s] credibility had [the defendant’s] counsel been permitted to pursue his proposed

line of cross-examination.” 44

       In support of his argument that the trial court abused its discretion, the appellant cites

to our opinion in Carroll v. State, wherein we ruled that the “[a]ppellant’s inquiry into [the

State’s witness’s] incarceration, his pending charge and possible punishment as a habitual

criminal, was appropriate to demonstrate [the witness’s] potential motive, bias or interest to

testify for the State.”45 On the basis of this excerpted language, the appellant asserts that an

accused, having established “that the witness against him is in a vulnerable relationship with

the authority who has called him as a witness[,]” is always “entitled to show the extent of that

vulnerability.”46 In effect, the appellant argues that only a categorical rule foreclosing the

trial court’s discretion to exclude evidence of the punishment ranges faced by felony-indicted

State’s witnesses will suffice to “accomplish what the Sixth Amendment intends” vis-à-vis

guaranteeing an opportunity for effective cross-examination.

       We disagree. In the first place, Carroll cannot reasonably be relied upon for the

proposition that a criminal defendant has a right to elicit a felony-indicted State’s witness’s

potential punishment range on cross-examination. The defendant in Carroll sought only to

impeach the witness with evidence that he “was currently incarcerated and awaiting trial on

       44

        Id. (emphasis added).
       45

        916 S.W.2d at 500.
       46

        Appellant’s Brief at 18-19.
                                                                               JOHNSON — 18
an aggravated robbery charge and that he had several prior felony convictions.” 47 The

excerpt of Carroll relied upon by the instant appellant is therefore better understood as an

affirmation of an accused’s right to prove to the jury that his accuser may be subject to

punishment as a habitual criminal (and could, as a result, be all the more biased in favor of

the State), rather than his right to precisely prove the punishment range of the charged

offense.

       Second, and more to the point, the appellant’s argument fails to account for the fact

that “the Confrontation Clause guarantees [only] an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to whatever extent,

the defense might wish.”48 This is not a situation in which the trial court entirely foreclosed

even the possibility of cross-examination into a “prototypical form of bias.”49 Nor is it a

situation about which it can necessarily be said that the jury “might have received a

significantly different impression of [the witness’s] credibility” had it only been privy to the

exact punishment range concomitant to first-degree felony offenses.50 To the contrary, in this

case the trial court not only allowed the appellant to allege the potential for bias (by asking


       47

        Carroll, 916 S.W.2d at 499 (emphasis added).
       48

       Van Arsdall, 475 U.S. at 679 (quoting Fensterer, 474 U.S. at 20) (internal quotation marks
omitted).
       49

        Van Arsdall, 475 U.S. at 680.
       50

        Id. (emphasis added).
                                                                                 JOHNSON — 19
each witness whether he expected his testimony to be of any benefit to him); it allowed him

to substantiate that allegation (by asking each witness whether he had any charges pending

in Harris County), and to show that the potential for bias was weightier than it otherwise

might have been (by asking each witness whether those charges were for “misdemeanor” or

“felony” offenses). It appears, in other words, that in this instance the appellant was

“permitted . . . to make a record from which” to argue, in a manner consistent with the logical

connection he posited at trial and on appeal (although perhaps to a lesser extent than he

would have preferred), that the witnesses’ vulnerable relationships with the State may have

colored their testimonies.51

       While the appellant makes a fair point that his inability to explore the exact extent of

each witness’s potential for bias ultimately rendered each cross-examination at least

marginally less effective than it otherwise might have been, a “less than optimal” opportunity

for cross-examination does not, of itself, violate the Sixth Amendment. Only when the trial

court’s limitation on cross-examination sweeps so broadly as to render the examination

wholly ineffective can it be said that the trial court commits an error of constitutional

dimension.52 And, on the facts of this case, we are simply unwilling to say that the trial


       51

        Davis, 415 U.S. at 318.
       52

         Cf. Crane v. Kentucky, 476 U.S. 683, 690-91 (1986) (“[A]n essential component of
procedural fairness is an opportunity to be heard. That opportunity would be an empty one if the
State were permitted to exclude competent, reliable evidence . . . when such evidence is central to
the defendant’s claim of innocence. . . . [E]xclusion of this kind of exculpatory evidence deprives
a defendant of the basic right to have the prosecutor’s case encounter and ‘survive the crucible of
                                                                                    JOHNSON — 20
court’s limitation so deprived the appellant of an important untrod avenue of examining the

witnesses for bias as to leave his overall opportunity for cross-examination ineffective. The

trial court acted within its discretion, once the particular allegation of bias had been

“effective[ly]” made before the jury, to prevent the appellant from presenting all the

minutiae—incrementally probative though each might individually have been—tending only

marginally to enhance his allegation of bias against the witness.53 In light of this, we agree

with the court of appeals that “the trial court did not violate appellant’s right to confront the

witnesses against him” by preventing him from eliciting the precise punishment ranges




meaningful adversarial testing.’”) (quoting United States v. Cronic, 466 U.S. 648, 656 (1984));
Potier v. State, 68 S.W.3d 657, 665-66 (Tex. Crim. App. 2002) (“[T]he exclusion of a defendant’s
evidence will be constitutional error only if the evidence forms such a vital portion of the case that
exclusion effectively precludes the defendant from presenting a defense. * * * That the defendant
was unable to . . . present his case to the extent and in the form he desired is not prejudicial where,
as here, he was not prevented from presenting the substance of his defense to the jury.”) (internal
quotation marks omitted) (quoting United States v. Willie, 941 F.2d 1384, 1398-99 (10th Cir. 1991));
Hammer v. State, 296 S.W.3d 555, 562-63 (Tex. Crim. App. 2009) (“[T]he constitution is offended
if the [defendant is] prohibit[ed] from cross-examining a witness concerning possible motives, bias,
and prejudice to such an extent that he could not present a vital defensive theory.”) (citing Potier,
68 S.W.3d at 663-65).
       53

        None of this is to say that the trial court was under any obligation to prohibit the appellant
from eliciting the potential punishment ranges that Joseph and Stefan faced. Had the trial court been
content that the additional questioning would not run the risk of wasting time or confusing or
prejudicing the jury—or that the proffered evidence would indeed significantly impact the jury’s
impression of the witness’s credibility—it could have permitted the appellant to ask the pertinent
question and (at the very least) receive the witness’s answer. But neither are we inclined to say, as
a categorical matter, that a trial court’s ruling preventing a criminal defendant from cross-examining
a State’s witness as to the precise punishment range attendant to the witness’s pending charge
constitutes a per se violation of the Confrontation Clause. When, as here, the defense is able to
adduce evidence that an adverse witness is susceptible to some significant degree of punishment, it
simply cannot be said that “counsel was unable to make a record from which to argue why [the
witness] might have been biased[.]” Id.
                                                                             JOHNSON — 21
attendant to Joseph and Stefan’s pending felony charges.54

                                    III. CONCLUSION

       With respect to the “nature” of the State’s witnesses’ pending charges (i.e., that

Joseph’s pending first-degree felony charges were based on theft and that Stefan’s pending

first-degree felony charge was based on robbery), the appellant has failed to demonstrate the

relevancy of the proffered evidence to support the allegation of bias. With respect to the

punishment ranges attendant to the witnesses’ pending charges (i.e., that each witness’s

felony charge carried a potential sentence of five to ninety-nine years’ incarceration or life

imprisonment), while the appellant has satisfactorily demonstrated the incremental

probativeness of the proffered evidence, he has failed to show that “[a] reasonable jury might

have received a significantly different impression of” either witness’s “credibility had . . .

counsel been permitted” to elicit that evidence.55 The court of appeals rightly concluded as

much, and its judgment is affirmed.




DELIVERED:           June 18, 2014
PUBLISH




       54

       Johnson, 2013 WL 1451292, at *8.
       55

       Van Arsdall, 475 U.S. at 680.
