                                               NO. 07-04-0396-CR

                                        IN THE COURT OF APPEALS

                               FOR THE SEVENTH DISTRICT OF TEXAS

                                                   AT AMARILLO

                                                      PANEL C

                                          FEBRUARY 4, 2005
                                   ______________________________

                                               STEPHEN SMITH,

                                                                   Appellant

                                                            v.

                                           THE STATE OF TEXAS,

                                                              Appellee
                                _________________________________

             FROM THE COUNTY COURT AT LAW NO. 2 OF SMITH COUNTY;

                NO. 002-83734-03; HON. RANDALL LEE ROGERS, PRESIDING
                           _______________________________

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

       Stephen Smith (appellant) appeals his conviction for theft. His sole issue involves

the refusal of the trial court to allow him to question three State witnesses about possible

bias favoring the State.1 We reverse the judgment.

       As previously mentioned, appellant was being tried for theft. He purportedly stole

a display case containing pseudoephedrine from the Karr Express convenience store.

According to the appellate record, the store clerk could not identify him as the culprit. Nor

could anyone else identify the thief save for three individuals, Bradley Smith (a relative and


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           The State did no t favor th is cou rt with a brief.
acquaintance of appellant), his fiancé Jennifer Carping, and Jennifer’s brother Clifton

Carping. The three allegedly had ridden in a car with appellant to the convenience store

and saw him leave with the stolen merchandise. So too were they related to or in the

process of becoming related to Melissa Novak. Jennifer and Clifton were the children of

Novak while Bradley was engaged to marry Jennifer (who was also his cousin and mother

of his children). Moreover, the State had recently convicted Novak of possessing a

controlled substance, and she awaited sentencing during the time of appellant’s trial.

       Next, when appellant made effort to question the three witnesses about their

relationship to Novak, her circumstances, and the influence, if any, those matters had on

their testimony, the State objected. The objections were considered by the trial court

outside the presence of the jury. Furthermore, the trial court permitted appellant to ask

questions to the witnesses for purposes of determining whether their testimony was

relevant to show bias or prejudice favoring the State. While both Jennifer and Clifton

unequivocally denied any relationship between their testimony and their mother’s situation,

Bradley did not. Instead, when asked, “. . . [D]on’t you think it would be good for [Novak]

if the prosecutor’s office thinks you cooperated,” he answered, “[Y]es, sir.” Despite this

response, the trial court sustained the prosecutor’s objections and barred appellant from

broaching the subject before the jury.

       Our Court of Criminal Appeals has recognized that the exposure of a witness’

motivation in testifying is a proper and important function of the constitutionally protected

right of cross-examination. Maxwell v. State, 48 S.W.3d 196, 199 (Tex. Crim. App. 2001),

citing Davis v. Alaska, 415 U. S. 308, 94 S.Ct. 1105, 39 L. Ed.2d 347 (1974). Furthermore,

according to that court, jurors are entitled to have the benefit of the defense theory before

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them so that they can make an informed decision regarding the weight to accord the

witness’ testimony even though they may ultimately reject the theory. Id. So, for some

time now, it has been held that both parties to a criminal proceeding have “great latitude

to show any fact which would or might tend to establish ill feeling, bias, motive and animus

on the part of [a] witness.” (Emphasis added). London v. State, 739 S.W.2d 842, 846

(Tex. Crim. App. 1987); Adair v. State, No. 12-01-0256-CR, 2002 LEXIS 3854 at *3-4 (Tex.

App.–Tyler, March 22, 2002, no pet.) (not designated for publication) (holding that a

defendant is entitled to pursue all avenues of cross-examination reasonably calculated to

expose a motive, bias or interest of a witness and may elicit any fact from a witness

intended to demonstrate a witness’ vulnerable relationship with the State). And, though the

trial court’s discretion in the area is broad, it is “not without limits.” London v. State, 739

S.W.2d at 846.

       Next, the desire to expose potential bias often involves a witness testifying while

criminal charges pend against him. See e.g. Maxwell v. State, supra (involving a witness

who was on “deferred adjudication probation”). Yet, the same considerations exist when

someone other than the witness faces criminal prosecution. For instance, it may be the

witness’ brother, as in London. And, while London dealt with the right of the State to delve

into the bias and prejudice of a defense witness, we find its language informative. There,

the Court of Criminal Appeals held that the party attempting to elicit the information must

establish its relevance. London v. State, 739 S.W.2d at 847. In other words, the question

which must be determined is whether there exists a nexus between the criminal problems

to which the third party is exposed and the witness’ testimony. Id. at 846. And, if such a



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link exists, then the testimony is relevant and the party should be allowed to develop it for

consideration by the factfinder.

       Assuming arguendo that the relationship between 1) Jennifer, Clifton, and Novak

and 2) the evidence of Novak’s circumstance may not have been enough to illustrate the

requisite link, that was not the only evidence before the trial court. The latter had also

heard the comments of Bradley, Jennifer’s cousin, fiancé, and father of her children.

Additionally, he admitted that it would be “good for [Novak] if the prosecutor’s office

[thought he] cooperated” with the State. This response clearly evinces potential motivation

for testifying favorably for the State, irrespective of whether he actually was so motivated.

And, to this we add the undisputed evidence of both Bradley’s familial relationship with

Novak’s daughter, son and Novak herself.            Finally, that there may have been no

agreements or deals between the State and Novak regarding her punishment is alone not

determinative, according to the Court of Criminal Appeals. Maxwell v. State, 48 S.W.3d at

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

       In short, the evidence presented to the trial court sufficiently illustrated a link, at the

very least, between Bradley’s testimony and Novak’s pending criminal prosecution.

Moreover, while the factfinder may ultimately assign little weight to the evidence of that link,

not only was it entitled to hear about it, Maxwell v. State, supra, but also appellant was

entitled to present it. Again, both parties must be afforded “great latitude to show any fact

which would or might tend to establish ill feeling, bias, motive and animus on the part of [a]

witness,” even in view of the trial court’s broad, yet not unbounded, discretion. (Emphasis

added). London v. State, 739 S.W.2d at 846. Consequently, we hold that the trial court

erred in refusing to grant appellant the opportunity to cross-examine Bradley, Jennifer, and

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Clifton (before the factfinder) about their relationship with Novak, her pending criminal

prosecution, and its potential effect on their testimony in appellant’s trial.

       Having found that the trial court erred, we must also determine whether the error

was harmful. We conclude that it was since the only evidence of record identifying

appellant as the thief came from Bradley, Jennifer, and Clifton; and the State did not deny

that. So, to the extent that Bradley acknowledged a potential link between his cooperation

with the State at appellant’s trial and the outcome of Novak’s own criminal prosecution and

given the relationship between Bradley, Jennifer, Clifton, and Novak, the jury was denied

opportunity to make an informed decision about whether to believe their testimony.

           Accordingly, we sustain appellant’s issue, reverse the judgment of the trial court

and remand the cause for further proceedings.



                                                   Brian Quinn
                                                     Justice



Publish.




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