      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-08-00603-CR



                             Jonathan Senovio Aguilar, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. CR-06-354, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted Jonathan Senovio Aguilar of aggravated assault, see Tex. Penal

Code Ann. § 22.02 (West Supp. 2008), and the trial court sentenced him to eight years in prison.

Aguilar contends that the trial court violated his rights under the Confrontation Clause of the

United States Constitution by refusing to admit certain impeachment testimony. We affirm.

               On the night of March 5, 2006, appellant Jonathan Senovio Aguilar was drinking at a

friend’s apartment with some friends and acquaintances. Disputes arose over gang affiliation

and, although each witness offered varying explanations as to how the disputes arose, they agree that

the disputes eventually escalated into physical violence, including Aguilar stabbing Mark Tovar

multiple times. At some point after the assault, Tovar returned to his apartment, which was located

in the same apartment complex, and was air-flighted to San Antonio. Tovar underwent surgery and

remained in the hospital for ten days.
               Aguilar was indicted for aggravated assault. A jury convicted him as charged, and the

trial court sentenced Aguilar to eight years in prison. In a single point of error, Aguilar argues that

the trial court violated his rights under the Confrontation Clause of the United States Constitution

by refusing to admit evidence that Aguilar sought to offer for purposes of impeaching Tovar.

               We review a trial court’s evidentiary rulings under an abuse-of-discretion standard.

Page v. State, 213 S.W.3d 332, 337 (Tex. Crim. App. 2006). A trial court abuses its discretion when

its decision is so clearly wrong as to lie outside that zone within which reasonable persons might

disagree. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

               Texas Rule of Evidence 608(b) provides that a witness’s credibility may not

be impeached with specific instances of the witness’s conduct other than a criminal conviction

as provided in Rule 609(a). Tex. R. Evid. 608(b). However, the Confrontation Clause of the

Sixth Amendment may require admission of evidence that Rule 608(b) would otherwise bar. See

Lopez v. State, 18 S.W.3d 220, 225 (Tex. Crim. App. 2000). In weighing whether evidence must

be admitted under the Confrontation Clause, the trial court maintains broad discretion and should

balance the probative value of the evidence sought to be introduced against potential risks of its

admission, including harassment, prejudice, confusion of the issues, endangering the witness, and

the injection of cumulative or collateral evidence. Id. at 222.

               According to Aguilar, the trial court abused its discretion in not applying the

Confrontation Clause exception to Rule 608(b). Aguilar’s theory on appeal turns on the credibility

of Tovar, the complaining witness. Aguilar contends that, contrary to Tovar’s version of events, it

was actually Tovar who initiated the fight, and it was Tovar who brought the knife that caused his

own injuries. Aguilar contends that he was simply acting in self-defense.

                                                  2
               The evidence Aguilar sought to introduce to attack Tovar’s credibility is evidence that

in 1998, during a search leading to a prior felony conviction for possession of marijuana, police

recovered two ounces of marijuana pre-packaged for sale, weight scales, drug ledgers, and $274 in

cash. According to Aguilar, this evidence shows that Tovar does or did, in fact, deal drugs despite

having testified at trial that he has used but does not—and never has—dealt drugs. Aguilar argues

that evidence suggesting that Tovar may have dealt drugs in the past supports Aguilar’s contention

that it was Tovar who brought the knife in order to “give others a key hit of cocaine off of it.” At

the time of trial, Tovar was on probation. According to Aguilar, since drug dealing would violate

the terms of Tovar’s probation, Tovar had an incentive to lie about dealing drugs.

               In weighing the admissibility of the proffered evidence, we first examine

the probative value of the evidence. See Lopez, 18 S.W.3d at 225. As a general matter, Aguilar

seeks to offer the evidence to attack Tovar’s credibility. Specifically, in light of items recovered

from Tovar’s residence pursuant to the 1998 search warrant, Aguilar takes issue with Tovar’s

statement that he was never a drug dealer. Even if admitted, however, evidence that those

items were recovered from Tovar’s residence in 1998 lends little, if any, support to Aguilar’s

credibility challenge.

               Pursuant to Aguilar’s offer of proof, Tovar admitted to possessing the items seized

during the 1998 search of his apartment and testified that he had pleaded guilty to the charges against

him in that instance. Despite pleading guilty to possession, however, there is no indication in the

record that Tovar was ever convicted of selling any controlled substance. In addition, although the

jury did not hear evidence of the specifics of the 1998 offense or conviction, Tovar testified before

the jury that he had been convicted of a felony and was still on probation.



                                                  3
               Here, the crime at issue is aggravated assault, and possession of or conviction

for possession of controlled substance is a collateral issue. The simple fact that Tovar had been

convicted of, and was still on probation for, a felony bears on his credibility such that the specifics

of any particular crime are duplicative and irrelevant. There is nothing specific about possession or

drug dealing in this particular context that would make Tovar’s testimony any more or less credible

than would the bare fact that Tovar had been convicted of a felony. Aguilar’s contention that

evidence of drug dealing suggests that Tovar brought the knife that was used to inflict his own

injuries requires multiple assumptions and inferences not supported by the evidence—that Tovar

was, in fact, dealing marijuana in 1998, that he was also dealing cocaine in 1998, that Tovar has

continued to deal cocaine since 1998, that he was dealing the night of the incident, that he was

offering free samples to potential purchasers, that he ultimately demanded payment for the samples,

and that his demand for payment precipitated the fight. In these circumstances, evidence of items

seized pursuant to a 1998 search warrant has little, if any, bearing on Tovar’s credibility and is,

therefore, inadmissible under the Lopez standard. See 18 S.W.3d at 222. Accordingly, we overrule

Aguilar’s sole point of error.

               Having overruled Aguilar’s point of error, we affirm the judgment of conviction.



                                               __________________________________________

                                               G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: August 14, 2009

Do Not Publish

                                                  4
