      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-02-00348-CR



                                  Benny Earl Green, Appellant

                                                  v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
        NO. 20,329-CR, HONORABLE EDWARD P. MAGRE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The district court sentenced appellant Benny Earl Green to imprisonment for thirty

years after a jury convicted him of possessing more than four grams of cocaine with intent to deliver.

Tex. Health & Safety Code Ann. § 481.112(a), (d) (West Supp. 2003). In this appeal, Green

contends the court erroneously overruled his motion to suppress evidence and limited his right to

cross-examine a State witness for bias. We will overrule these contentions and affirm.

               Milam County Deputy Sheriff Johnnie Beathard testified at the suppression hearing

that on the afternoon in question, he and Deputy Reese Lockett received a radioed report that a

warrant had been issued for Green’s arrest. The officers were familiar with Green and, soon after

receiving the report, they saw a car Beathard recognized as one Green often drove. They followed

this car and stopped behind it at a grocery store. When Green stepped out of the car, Beathard called

out to him. Green began to run. The officers captured and arrested Green after a two-block chase.
After securing Green, the officers searched the car and found cocaine and marihuana in the glove

compartment.

               Green contends the search of the automobile violated his Fourth Amendment rights.

U.S. Const. amend. IV. He acknowledges that after making a lawful custodial arrest of the occupant

or recent occupant of an automobile, a police officer may search the passenger compartment of the

automobile as an incident of the arrest. New York v. Belton, 453 U.S. 454, 460 (1981). He also

concedes that his arrest was lawful. He urges, however, that he was not a recent occupant of the car

within the meaning of Belton. He also argues that some relationship between the suspected unlawful

activity and the vehicle must exist before the search is justified, citing Smith v. State, 759 S.W.2d

163, 167 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d). These are questions of law that we

review de novo. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

               Green’s reliance on Smith is misplaced. In that case, the defendant was not shown

to have been an occupant of the searched automobile, and thus Belton did not apply. Id. at 166. The

cited language is taken from a discussion of an alternative justification for the search advanced by

the State. Id. at 167.

               But for his flight, Green would have been arrested immediately after he stepped from

his car. As it was, appellant was arrested within two blocks of the car after what appears to have

been a brief chase. The search followed immediately. On these facts, Green was shown to have

been a recent occupant of the automobile. The search of the car was lawful under Belton and the

district court did not err by overruling the motion to suppress. Point of error one is overruled.

               The automobile in which the cocaine was found was registered in the name of

Shannon Strelsky, Green’s girlfriend. She testified that she, Green, and Green’s mother had paid for

                                                 2
the car and shared its use. She said that she had not used the car the day of Green’s arrest and that

she had no knowledge of the drugs found in the glove compartment. In his second point of error,

Green contends the court erred by refusing to allow him to introduce evidence that Strelsky had been

convicted less than one month earlier of possessing less than one gram of cocaine. He argues that

this evidence was admissible to show the witness’s bias or motive for testifying as she did.1

               As part of the constitutional confrontation right, a defendant must be given great

latitude to show any fact that would tend to establish ill feeling, bias, or motive on the part of a

witness testifying against him. Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986); Hurd v.

State, 725 S.W.2d 249, 252 (Tex. Crim. App. 1987). The rules of evidence also recognize the right

to impeach a witness by proof of circumstances or statements showing bias or interest. Tex. R. Evid.

613(b). A pending criminal charge is an appropriate area of cross-examination for the purpose of

testing a witness for possible bias or motive to falsify testimony. Carroll v. State, 916 S.W.2d 494,

499 (Tex. Crim. App. 1996). The refusal to allow a defendant to show that a government witness

was on probation has been held to violate the confrontation right. Davis v. Alaska, 415 U.S. 308,

318-19 (1974); Maxwell v. State, 48 S.W.3d 196, 200 (Tex. Crim. App. 2001); Spain v. State, 585

S.W.2d 705, 710 (Tex. Crim. App. 1979).

               The record shows that Strelsky was placed on five years’ probation following her

conviction. Under the authorities cited above, that fact was admissible to show a possible motive

for her testifying on behalf of the State. Green, however, did not indicate an interest in proving that

Strelsky, as a probationer, was susceptible to pressure from the prosecutors. Instead, he indicated


   1
     The conviction was not final and was therefore not admissible pursuant to rule 609. Tex. R.
Evid. 609.

                                                  3
that it was the bare fact of her conviction that he wished to show. Asked by the court to explain his

theory of admissibility, defense counsel stated, “She very well could have been the one [who put the

cocaine in the car], since she had access . . . and I think having been convicted of possession would

further that theory and she could be diverting attention from herself through her testimony. . . . Also,

Your Honor, to further our theory that someone besides Benny Green put those drugs in that car on

February 8th.”

                 Evidence of other crimes is not admissible to prove the character of a person in order

to show action in conformity therewith. Tex. R. Evid. 404(b). To the extent that Green offered

evidence of Strelsky’s conviction for the purpose of suggesting that she, not Green, was responsible

for the cocaine found in the car, the court properly disallowed the evidence.

                 If there was a Sixth Amendment violation, it is subject to harmless error analysis.

Van Arsdall, 475 U.S. at 684; Tex. R. App. P. 44.2(a). The correct inquiry is whether, assuming that

the damaging potential of the cross-examination were fully realized, it may nevertheless be said that

the error was harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at 684. In making this

determination, we may consider such factors as the importance of the witness’s testimony to the

prosecution’s case, whether the witness’s testimony was cumulative, the presence or absence of

evidence corroborating or contradicting the witness, the extent of cross-examination otherwise

permitted, and the overall strength of the prosecution’s case. Id.

                 Strelsky appears to have been called by the State to establish Green’s ownership

interest in the car, a fact of relatively small importance given the undisputed fact that he was the sole

occupant of the car at the time the cocaine was found. Otherwise, Strelsky’s testimony describing

how she, Green, and Green’s mother each regularly used the car tended to support the defensive

                                                   4
theory that the cocaine found in the car belonged to someone else. During cross-examination,

Strelsky testified that she had driven the car on the day before Green’s arrest. She also described

being “terrified” when she was questioned by the police and admitted that she would “probably not”

admit that the cocaine found in the car was hers. Applying the Van Arsdall test, we conclude that

any error in the exclusion of evidence that Strelsky was on probation at the time she testified was

harmless beyond a reasonable doubt. Point of error two is overruled.

               The judgment of conviction is affirmed.




                                             __________________________________________

                                             Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: July 11, 2003

Do Not Publish




                                                5
