Opinion filed May 23, 2019




                                     In The


        Eleventh Court of Appeals
                                  __________

                             No. 11-17-00118-CR
                                 __________

             JOSE JACINTO AMAYA SOTELO, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 35th District Court
                             Brown County, Texas
                        Trial Court Cause No. CR24057


                     MEMORANDUM OPINION
      After a bench trial, the trial court convicted Jose Jacinto Amaya Sotelo of
felony driving while intoxicated and sentenced him to confinement for a term of
seven years in the Institutional Division of the Texas Department of Criminal
Justice. See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2018). Appellant brings
two issues on appeal. Appellant contends that (1) the trial court violated his Sixth
Amendment right to confrontation when it improperly limited Appellant’s cross-
examination of the State’s witness, Jeremy Seider, and (2) the trial court erred when
it failed to strike Seider’s direct testimony. We affirm.
                                 Background Facts
      Brownwood Police Officer Jeremy Seider observed a vehicle with a canceled
license plate make a wide right turn. Upon stopping the vehicle, Seider identified
Appellant as the driver of the vehicle and Carlos Villanueva as a passenger. Seider
noticed that Appellant’s speech was slurred, as well as Villanueva’s speech, and that
they both had difficulty finding their identification. Seider spoke to them in English,
and Appellant did not appear to have any difficulty communicating with Seider.
After Seider asked Appellant to step out of the vehicle, Seider noticed the smell of
alcohol and observed Appellant stagger as Appellant walked toward Seider’s patrol
vehicle. Appellant admitted to Seider that he had consumed “two or three drinks.”
      Seider conducted a horizontal gaze nystagmus (HGN) test on Appellant.
During the test, Appellant continued to move his head after Seider instructed him to
move his “eyes only,” and he “sway[ed] quite a bit side to side and back and forth.”
Seider testified that Appellant showed six of six possible clues for intoxication on
the HGN test. Seider then gave Appellant the instructions for the walk-and-turn test,
but Appellant claimed that he did not understand English. Seider gave the
instructions again, partially in Spanish, and Appellant performed the walk-and-turn
test. Seider testified that Appellant showed five of eight possible clues for
intoxication on the walk-and-turn test.
      Seider arrested Appellant and transported him to the Law Enforcement Center
where Brownwood Police Officer Jose Contreras administered additional sobriety
tests in Spanish. Based on Appellant’s performance on those tests, Appellant was




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taken to the hospital for a blood draw. Because Appellant denied consent for the
blood draw, Seider obtained a warrant to conduct the draw.
      Officer Contreras testified that he met Seider and Appellant in the Law
Enforcement Center parking lot because Seider asked Officer Contreras to give
Appellant the instructions for the walk-and-turn and one-leg-stand tests in Spanish.
Officer Contreras instructed Appellant in Spanish, and Appellant informed
Officer Contreras that Appellant understood.         Officer Contreras noticed the
following signs of intoxication during Appellant’s performance on the walk-and-
turn test: Appellant started walking before he received all the instructions, he failed
to touch heel to toe a few times, he used his hands for balance instead of keeping
them to his side, he did not take the correct number of steps, and he did not turn
properly. Officer Contreras also noticed signs of intoxication during Appellant’s
performance on the one-leg-stand test: Appellant put his foot down twice and he was
using his hands for balance. Based on Appellant’s performance, Officer Contreras
believed that Appellant was intoxicated.
      The State also offered into evidence Seider’s dashcam recording.            The
recording captured Appellant driving, Seider stating that the vehicle had the wrong
plates, and Appellant admitting that he had been drinking. The recording also
captured the field sobriety tests and Appellant’s arrest. The trial court later struck
the blood draw results because the search warrant affidavit did not reflect the time
that Seider observed Appellant driving.
                                       Analysis
      In his first issue, Appellant contends that the trial court violated his Sixth
Amendment right to confrontation when it improperly limited Appellant’s cross-
examination of Seider. Appellant contends that the trial court should have allowed




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Appellant to fully cross-examine Seider regarding some pending criminal charges
against Seider in Comanche County because they were relevant to show his bias and
motive to testify. We disagree.
      We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App.
2016) (citing Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011)). A
trial judge abuses his discretion when his decision falls outside the zone of
reasonable disagreement. Id. (citing Martinez v. State, 327 S.W.3d 727, 736 (Tex.
Crim. App. 2010)).
      After Appellant’s arrest for the underlying offense, but before trial, Seider,
along with seven codefendants, was indicted in Comanche County for the following
three felony offenses: aggravated assault with a deadly weapon, unlawful restraint,
and deadly conduct. All the codefendants were Seider’s relatives. At the time of
trial, Seider was still under indictment in Comanche County. He was not an active
Brownwood police officer because he had been suspended without pay.
      At the beginning of trial, the trial court considered Appellant’s preliminary
inquiry with respect to permitting Seider to testify at trial. Seider indicated that he
intended to invoke his Fifth Amendment right against self-incrimination regarding
the pending charges in Comanche County. Appellant’s counsel asserted that, if the
trial court did not allow him to fully cross-examine Seider on the pending charges,
Seider should not be permitted to testify. The trial court determined that it would
permit Seider to testify and that it would rule on individual questions that Seider
might refuse to answer by invoking his Fifth Amendment privilege.
      Seider testified that he would not receive any consideration with respect to the
charges in Comanche County for testifying in Appellant’s case. He acknowledged




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that he was under indictment and that the charges that he and his relatives were
facing were serious. Seider described how he was related to the other codefendants
and testified that he would help them if they needed help.
      On cross-examination, Seider conceded that, if he was convicted, he would
lose his job as a police officer and would possibly go to jail. He testified that being
a police officer was a lifelong dream of his and that he ultimately hoped to get his
job back at the Brownwood Police Department but that he needed a dismissal or an
acquittal of the Comanche County charges. Seider also conceded that sometimes
there is a benefit for cooperating with other investigations.
      Although Seider answered some questions during cross-examination, Seider
invoked the Fifth Amendment privilege numerous times. On two occasions, Seider
attempted to invoke his privilege, but the trial court instructed him to answer the
questions. However, the trial court refused to compel Seider to answer the following
questions, which all addressed the pending charges in Comanche County:
          • “What are your feelings about the case in Comanche? Are you
            concerned about it?”

          • “What did you tell your superiors about what had happened over
            in Comanche . . . ?”

          • “During [your] statement with [the Texas] Ranger . . . did you
            have specific discussions about your other family members who
            were involved in this?”

          • “[I]n the statement did you describe what roles everyone played
            in what happened . . . ?”

          • “Were there guns involved in the charge?”




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          • “Did you have a weapon . . . ? [D]id you have a gun when you
            and the other seven - -”

          • “Did you have your service weapon with you at that time?”

          • “Were you wearing your badge at the time this happened?”

          • “Were you wearing your uniform when this happened?”

          • “[W]ere you holding yourself out as someone involved in law
            enforcement when you showed up that day?”

          • “Who shot into the back of the car as it drove away?”

          • “Were you a part of . . . an interrogation while people restraining
            some other folks; some of the group were talking to someone
            trying to get answers to some questions? Were you part of the
            group that was doing the interrogating?”
The trial court explained its reasoning for refusing to compel Seider to answer these
questions: “I will allow certain pointed questions . . . if there’s something that would
rise to the level of showing either some bias or some other issue . . . , but I’m not
going to just open it up to ‘Tell me what you know about this case and the underlying
facts.’” Appellant later moved to strike Seider’s direct testimony based upon
Seider’s invocation of his Fifth Amendment privilege. The trial court denied
Appellant’s request.
      The State called Comanche County District Attorney Adam Sibley as a
witness. He testified that he did not have a deal with Seider for any consideration if
Seider testified in Appellant’s case. Sibley further testified that he would not be
willing to enter into any future agreements with Seider. Sibley stated that Seider
provided a statement to a Texas Ranger regarding the pending charges and conceded



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that Seider was cooperative. However, Sibley believed that, when Seider made this
statement, Seider withheld facts relevant to the investigation and had not volunteered
to provide any additional information.
      In a bill of exception, Sibley testified about the facts of Seider’s pending
charges. Sibley testified that he believed that Seider withheld the identity of the
shooter from the Texas Ranger to protect the family member who shot the gun.
Although the charges were serious, Sibley had offered all the codefendants
probation, but none had accepted.
      The Sixth Amendment to the U.S. Constitution guarantees the right of an
accused in a criminal prosecution to confront the witnesses against him. U.S. CONST.
amend. VI; Id. at 909. “The main purpose behind the Confrontation Clause is to
secure for the opposing party 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.’” Johnson, 490 S.W.3d at 909 (quoting Davis v. Alaska, 415
U.S. 308, 316 (1974)). The Sixth Amendment right to cross-examine a witness
allows a party to attack the general credibility of that witness or to show their
possible bias, self-interest, or motives in testifying. Hammer v. State, 296 S.W.3d
555, 561 (Tex. Crim. App. 2009). However, a trial judge may limit the scope and
extent of 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. Johnson, 490 S.W.3d at 909 (citing Johnson v. State, 433 S.W.3d 546,
551 (Tex. Crim. App. 2014)).        A trial judge retains wide latitude to impose
reasonable limits on such cross-examination to avoid harassment, prejudice,
confusion of the issues, endangering the witness, marginally relevant evidence, or
where the subject of the examination has been exhausted. Irby v. State, 327 S.W.3d




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138, 145 (Tex. Crim. App. 2010) (citing Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986)).
       This appeal involves a common scenario—an attempt to impeach a
prosecution witness by cross-examining him about criminal charges pending against
him.   See Johnson, 433 S.W.3d 551–53.           A defendant may elicit on cross-
examination facts intended to demonstrate a witness’s vulnerable relationship with
the State or to show a witness’s bias. TEX. R. EVID. 613(b); Carroll v. State, 916
S.W.2d 494, 500 (Tex. Crim. App. 1996). “Exposing a witness’s motivation to
testify for or against the accused or the State is a proper and important purpose of
cross-examination.” Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App.
1998). Parties are allowed great latitude to show “any fact which would or might
tend to establish ill feeling, bias, motive and animus on the part of the witness.” Id.
(quoting London v. State, 739 S.W.2d 842, 846 (Tex. Crim. App. 1987)). “In order
to impeach a witness with evidence of pending criminal actions, the proponent of
the evidence must establish that the evidence is relevant.” Id. (citing Carroll, 916
S.W.2d at 494; London, 739 S.W.2d at 846–48).
       The right to cross-examine is not unqualified. Johnson, 490 S.W.3d at 909.
“A trial judge may limit the scope and extent of 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.’” Id. (quoting Johnson, 433 S.W.3d at
552). “The defendant is not entitled to ‘cross-examination that is effective in
whatever way, and to whatever extent,’ he might wish.” Id. (quoting Johnson, 433
S.W.3d at 552).
       This is a not a case where the trial court prohibited Appellant from making
any reference to the pending criminal charges against Seider during his cross-




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examination as was the case in Carpenter and Irby. Irby, 327 S.W.3d at 140;
Carpenter, 979 S.W.2d at 633–34; see Johnson, 433 S.W.3d at 553 (discussing
Carpenter and Irby). To the contrary, the trial court permitted Appellant to obtain
answers from Seider pertaining to the general nature of the charges in Comanche
County, the ramifications of the pending charges on his employment as a
Brownwood police officer, and the possibility that Seider would obtain some benefit
from testifying in Appellant’s case. Furthermore, the Comanche County District
Attorney offered additional testimony about the nature of the Comanche County
charges pending against Seider. A copy of the indictment against Seider from
Comanche County was admitted into evidence during Sibley’s testimony.
Accordingly, the trial court permitted Appellant to explore areas indicating possible
bias by Seider to “curry favor” with the State by offering testimony against
Appellant. See Johnson, 433 S.W.3d at 554–55.
      Conversely, the trial court did not require Seider to answer questions from
Appellant’s trial counsel about some of the details of his pending charges in
Comanche County. In this regard, Seider invoked his Fifth Amendment privilege
against self-incrimination. There is no allegation that Seider improperly invoked his
Fifth Amendment privilege or waived it. When a defendant’s Sixth Amendment
rights intersect with a witness’s Fifth Amendment privilege, “[a] valid assertion of
the witness’s Fifth Amendment rights justifies a refusal to testify despite the
defendant’s Sixth Amendment rights.” United States v. Ramos, 537 F.3d 439, 448
(5th Cir. 2008) (quoting United States v. Goodwin, 625 F.2d 693, 700 (5th Cir.
1980)); see Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986) (an
individual’s constitutional privilege against self-incrimination overrides a
defendant’s constitutional right to compulsory process of witnesses). Furthermore,




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even if Seider had been convicted of the offenses for which he was indicted in
Comanche County, the details of those offenses would not be admissible. See
Mays v. State, 726 S.W.2d 937, 953 (Tex. Crim. App. 1986) (“[A]lthough the fact
that a witness has been previously convicted of a crime may be introduced into
evidence, the details of that offense are inadmissible.”); Andrews v. State, 429
S.W.3d 849, 858 (Tex. App.—Texarkana 2014, pet. ref’d).
      We conclude that the trial court did not err by permitting Seider to invoke his
Fifth Amendment privilege to the questions that Appellant sought to ask him on
cross-examination.    As previously noted, Seider’s Fifth Amendment privilege
prevails over Appellant’s Sixth Amendment rights. Furthermore, the questions to
which the trial court permitted Seider to invoke his Fifth Amendment privilege were
not necessary to further expound upon his potential bias as a witness for the State
because there were already ample details before the trial court about the pending
charges in Comanche County. We overrule Appellant’s first issue.
      In his second issue, Appellant contends that the trial court erred when it failed
to strike Seider’s direct testimony. When a witness invokes his Fifth Amendment
right against self-incrimination during cross-examination, “all or part of that
witness’s direct testimony may be subject to a motion to strike.” Fountain v. United
States, 384 F.2d 624, 628 (5th Cir. 1967); see Keller v. State, 662 S.W.2d 362, 364
(Tex. Crim. App. 1984). The “ultimate inquiry is whether the defendant has been
deprived of his right to test the truth of the direct testimony.” Fountain, 384 F.2d at
628. “If he has, so much of the direct testimony as cannot be subjected to sufficient
inquiry must be struck.” Id. If the witness invokes the privilege only as to collateral
matters, however, direct testimony need not be struck. Id. A collateral question is




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one that seeks only to test a witness’s general credibility or relates to facts that are
irrelevant to the issues at trial. Keller, 662 S.W.2d at 364.
        The underlying facts of the pending charges against Seider were collateral
matters in relation to the allegation that Appellant committed felony driving while
intoxicated.       Seider did not refuse to answer questions on cross-examination
pertaining to the allegations against Appellant. The pending criminal charges in
Comanche County sought to test Seider’s general credibility by showing bias on his
part. As such, they concern a collateral matter. Thus, the trial court did not err in
refusing to strike Seider’s direct testimony. We overrule Appellant’s second issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


May 23, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.




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