                                MEMORANDUM OPINION

                                        No. 04-08-00594-CR

                                        James Leon RYAN,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the County Court at Law No. 7, Bexar County, Texas
                                     Trial Court No. 224646
                           Honorable Monica Guerrero, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 15, 2009

REVERSED AND REMANDED

           This case stems from an assault causing bodily injury. After Appellant James Leon Ryan

was found guilty by a jury, the trial court sentenced Ryan to one year confinement in the Bexar

County Jail suspended and probated for a term of two years. On appeal, Ryan asserts (1) the trial

court improperly denied his right to cross-examine the complainant regarding her motive to lie,

(2) the evidence is both legally and factually insufficient to support his conviction, and (3) the

trial court erred in failing to grant his motion for new trial based on jury misconduct. We reverse
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the judgment of the trial court and remand this matter for further proceedings consistent with this

opinion.

                                                  BACKGROUND

         Appellant Ryan and his common-law wife, Tammy Martinez, were at their residence

when Martinez saw an incriminating text message and accused Ryan of infidelity. When Ryan

started to become agitated, Martinez left the bedroom and went to their son’s room. Ryan came

into the room, angry and cursing, and proceeded to hit Martinez in the back of the head with a

new package of disposable diapers.              When Ryan continued to argue and threatened to hit

Martinez with a red toy wagon, Martinez instinctively “went over my son so he wouldn’t get

hit.” Martinez eventually left the son’s bedroom and Ryan followed her into their bedroom

calling her names. Ryan then pushed Martinez against the wall, pinning her wrists. After Ryan

released Martinez, he hit her with a pillow. Martinez grabbed her phone, locked herself in the

bathroom, and called the police. After the incident, Martinez moved out of the residence with

their two children. According to Martinez, she received an injury to her head and she suffered

pain as a result of Ryan’s attack. Ryan was charged with assault causing bodily injury.

         Trial was before a jury and occurred over a two-day period. Deliberations began in the

afternoon, and after two-and-a-half hours the jury informed the court that it was deadlocked. An

Allen charge 1 was presented to the jury whereupon further deliberation occurred resulting in the

return of a guilty verdict.

                                              LEGAL SUFFICIENCY

         We first address Ryan’s argument that the evidence is legally insufficient to support the

conviction.


1
  An Allen charge is an instruction given to a deadlocked jury to continue deliberating. See Allen v. United States,
164 U.S. 492, 501 (1896).

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A. Standard of Review

       When reviewing the legal sufficiency of the evidence, an appellate court examines “the

evidence in the light most favorable to the prosecution” and determines whether “any rational

trier of fact could have found [the appellant guilty] beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979); accord Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim.

App. 1991).

B. Assault Causing Bodily Injury

       Ryan was charged and convicted under section 22.01(a)(1) of the penal code which

provides a person commits the offense of assault if he “intentionally, knowingly, or recklessly

causes bodily injury to another.” See TEX. PENAL CODE ANN. § 22.01(a)(1) (Vernon Supp.

2008). “‘Bodily injury’ means physical pain, illness, or any impairment of physical condition”

and is proven by evidence that the victim suffered “some” pain. Id. § 1.07(a)(8); see Lane v.

State, 763 S.W.2d 785, 786-87 (Tex. Crim. App. 1989). The jury may infer that the victim felt

or suffered physical pain based on one’s common intelligence to understand pain and the natural

causes of it, as well as on the evidence of injuries or the circumstances of the assault. See

Wawrykow v. State, 866 S.W.2d 96, 99 (Tex. App.—Beaumont 1993, no pet.); Goodin v. State,

750 S.W.2d 857, 859 (Tex. App.—Corpus Christi 1988, pet. ref’d).

C. Analysis

       At trial, Martinez testified that Ryan caused her bodily injury by throwing the disposable

diapers at her. Additionally, with regard to the injury to her head, Martinez testified that

although she only felt a small bump, San Antonio Police Officer Kohleppel told her she had a cut

on her head.




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        Officer Rachel Kohleppel testified that when she arrived at the scene Martinez was

visibly shaken, and Ryan was agitated and uncooperative.                    On cross-examination, Ryan’s

counsel spent a considerable amount of time on the difference between the information contained

within Officer Kohleppel’s report and Martinez’s testimony at trial. Specifically, the report did

not include information regarding either Ryan pinning Martinez’s wrists against the wall or

Martinez’s need to protect her son from Ryan’s threats of injury from the red wagon. The

implication was that Officer Kohleppel’s report was accurate and Martinez was fabricating

additional facts to support the assault. However, Officer Kohleppel’s report and testimony

describe the diaper throwing incident. Officer Kohleppel was subjected to cross-examination as

to whether Martinez was hit with a bag or a box of diapers. The officer acknowledged that,

although she remembered seeing diapers strewn about the floor, she did not look for or inquire

regarding the packaging of the diapers.                Throughout her testimony, Officer Kohleppel

maintained her belief that an assault occurred based on Martinez’s statement and her demeanor.

        Martinez’s credibility was an issue for the jury to decide. 2 As for Ryan’s assertion that

the evidence, including Officer Kohleppel’s report, failed to support Martinez’s story, the jury

heard the testimony and cross-examination and drew its own conclusions on the extent of

Martinez’s injuries and whether they supported her testimony. See Pilkinton v. State, Nos. 05-

04-00686-CR & 05-04-00702-CR, 2005 WL 852005, *3-4 (Tex. App.—Dallas Apr. 14, 2005,

pet. ref’d). Moreover, the jury was entitled to draw appropriate inferences from the evidence,

and the inference that the diapers thrown by Ryan caused pain and thus bodily injury to Martinez

was reasonable. See Wawrykow, 866 S.W.2d at 100 (deciding that, in the absence of testimony

in that regard, a rational fact-finder could have inferred that blows from fists caused physical


2
   We note that had the trial court allowed the defense’s cross-examination regarding custody of the children, the
jury may have weighed Martinez’s credibility differently.

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pain). Based on Martinez’s testimony alone, a rational juror could have found each of the

essential elements of assault beyond a reasonable doubt. See also Lewis v. State, 530 S.W.2d

117, 118 (Tex. Crim. App. 1975) (noting that the evidence sufficiently proved bodily injury

where the complainant testified she suffered physical pain when the defendant grabbed her

briefcase and twisted her arm back, causing a small bruise). Accordingly, the evidence is legally

sufficient to show that Ryan intentionally, knowingly, or recklessly injured Martinez and caused

her pain. See TEX. PENAL CODE ANN. §§ 1.07(a)(8), 22.01(a)(1) (Vernon Supp. 2008).

                                      LIMITED CROSS-EXAMINATION

        Ryan next argues that the trial court improperly limited his cross-examination of

Martinez. During Ryan’s cross-examination of Martinez, defense counsel questioned Martinez

regarding the custody of their oldest son. According to Ryan, Martinez was fabricating the

attack in order to obtain custody of the children. 3 The trial court sustained at least three

relevancy objections lodged by the State.

        Defense:      [W]hen y’all got separated . . . who got custody of [your son]?
        Martinez:     [Ryan] had the custody of my oldest.
        Defense:      And that―so when he got custody, did you guys get separated and
                      how long were you separated?
        Martinez:     Maybe like three months.
                              ....
        Defense:      [A]fter that day when [Ryan] got arrested, what happened with the
                      kids?
        Martinez:     The next day me and my kids moved out.
        Defense:      You and both kids. Now, he already had custody of one child,
                      right?
        Martinez:     Uh-huh.
        Defense:      Did you return the child when he got out of jail?
        Martinez:     No.
        Defense:      Why didn’t you?
        Martinez:     Because the orders were done behind my back.
               State:         Judge, I’m going to object to relevance.

3
   During the defense’s opening statement, defense counsel pointed out that under a previous court order, Ryan was
awarded custody of one of the couple’s children and Martinez was required to pay child support. At the time of the
trial, a custody proceeding regarding both of the couple’s children was pending.

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               Court:       Sustained. Move [on to] another line of questioning,
                            please.
       Defense:     Did you―after that, ma’am, did you shortly file anything in court
                    indicating that you wanted to keep both kids?
             State:         I’m going to object to relevance.
             Court:         Sustained.
             Defense:       Your Honor, this has a lot to do with motive behind her
                            making this report.
             Court:         Okay. Move [on to] another line of questioning.
       Defense:     Ma’am, at a certain point―at a certain point, did [Ryan] have to go
                    back to try to get the kids from you?
             State:         Objection, relevance.
             Court:         Sustained.

Ryan asserts the trial court improperly limited his cross-examination with regard to Martinez’s

motive to lie based on the parties’ custody fight.

A. Standard of Review

       We review the trial court’s decision to limit a defendant’s cross-examination for abuse of

discretion. See Carroll v. State, 916 S.W.2d 494, 498 (Tex. Crim. App. 1996); Love v. State, 861

S.W.2d 899, 903 (Tex. Crim. App. 1993); Crenshaw v. State, 125 S.W.3d 651, 654-55 (Tex.

App.—Houston [1st Dist.] 2003, no pet.).

B. Cross-Examination of Martinez

       The Sixth Amendment guarantees an accused in a criminal prosecution the right to

confront the witnesses against him. U.S. CONST. amend. VI; Davis v. Alaska, 415 U.S. 308, 315

(1974); Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000).            Cross-examination

provides the defendant an opportunity to test “the believability of a witness and the truth of his

[or her] testimony.” Davis, 415 U.S. at 316. In some cases, the cross-examination may expose a

witness’s motivation to testify against the defendant. Hurd v. State, 725 S.W.2d 249, 252 (Tex.

Crim. App. 1987), accord Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Texas courts

generally provide great latitude in cross-examination to show any fact revealing “possible biases,



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prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities

in the case [on trial].” Hammer v. State, PD-0786-08, 2009 WL 928561, at *4 (Tex. Crim. App.

Apr. 8, 2009) (quoting Davis, 415 U.S. at 316) (distinguishing between a general attack on a

witness’s credibility and a more particularized attack against the witness’s “bias, motive, or

interest to testify in a particular fashion”); Hurd, 725 S.W.2d at 252;. Although some limitations

may be placed on cross-examination into the bias of a witness, the trial court violates a

defendant’s right of confrontation when it limits appropriate cross-examination. Carroll, 916

S.W.2d at 497.

       Cross-examination provides the jury an opportunity to understand the “whole picture” of

a witness’s motive or bias for testifying, and observe her testimony in light of such background.

See Harris v. State, 642 S.W.2d 471, 479 (Tex. Crim. App. 1982). A defendant may cross-

examine a witness, most importantly a prosecution witness, on any subject “reasonably

calculated to expose a motive, bias or interest for the witness to testify.” Carroll, 916 S.W.2d at

497. This right is further encompassed within the Texas Rules of Evidence. Rule 613(b) allows

an opponent to impeach a witness by proof of bias or interest by first questioning the witness

and, if the witness denies the bias or motive, “the opponent may introduce extrinsic evidence to

prove the motive or bias.” Hammer, 2009 WL 928561, at *5 (citing TEX. R. EVID. 613(b)). As

the Court of Criminal Appeals opined in Hammer v. State, “generally speaking, the Texas Rules

of Evidence permit the defendant to cross-examine a witness for his purported bias, interest, and

motive without undue limitation or arbitrary prohibition.” Id.

       We are mindful, however, of the trial court’s broad discretion to impose reasonable limits

on cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the

witness, and the injection of cumulative or collateral evidence. Carroll, 916 S.W.2d at 498



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(citing Van Arsdall, 475 U.S. at 679). The court’s restriction on cross-examination “does not

violate the defendant’s ‘right to confront a witness as long as (1) the possible bias and motive of

the State’s witness is clear to the trier of fact and (2) the accused has otherwise been afforded an

opportunity for a thorough and effective cross-examination.’” Ho v. State, 171 S.W.3d 295, 304

(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (quoting Stults v. State, 23 S.W.3d 198, 204

(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d)).

C. Application

        In the present case, the record shows that defense counsel asked several questions

regarding the children’s custody prior to the State’s objection on relevance grounds. Martinez

acknowledged that when she and Ryan previously separated, the court awarded custody of their

older son to Ryan. Defense counsel also established that after Ryan’s arrest, Martinez took both

children, moved out of the residence, and did not return the elder child to Ryan. However,

defense counsel was precluded from questioning Martinez about any subsequent custody dispute

between the parties and the effect of the dispute on Martinez’s testimony. Notably, the trial court

sustained the State’s objection to the testimony based on relevance, rather than harassment,

prejudice, confusion of issues, or cumulative evidence.

        The State argues that the trial court correctly limited cross-examination because the

accusation of assault occurred before any subsequent custody battle. Thus, the “details of the

custody battle are [not] relevant to accusations made prior to its existence.” We do not find this

argument persuasive. A conviction of assault bodily injury has statutory consequences in a

custody proceeding involving the perpetrator’s children. 4 The court is required to consider the


4
   See TEX. FAM. CODE ANN. § 153.004(a) (Vernon 2008) (“In determining whether to appoint a party as a sole or
joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a
party against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within
a two-year period preceding the filing of the suit or during the pendency of the suit.” (emphasis added)).

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commission of family violence in determining custody of the children. See TEX. FAM. CODE

ANN. § 153.004(c) (Vernon 2008) (“The court shall consider the commission of family violence

in determining whether to deny, restrict, or limit the possession of a child by a parent who is

appointed as a possessory conservator.”). Questions regarding custody proceedings would be

relevant to Martinez’s motivation to exaggerate her testimony at trial. See Harris, 642 S.W.2d at

479-80 (concluding that the trial court’s refusal to allow effective cross-examination of a State’s

witness to establish her bias or motive in testifying against the defendant violated the defendant’s

right to confrontation).

       We cannot say that the possible bias and motive of Martinez as a result of an ongoing

custody dispute was clear to the jury or that counsel was afforded an opportunity for a thorough

and effective cross-examination of Martinez. Therefore, based on the trial court’s refusal to

allow defense counsel “‘to place the parties and the witness in their proper [perspective] and to

develop further the interests involved,’” the trial court erred in limiting defense counsel’s cross-

examination. See Harris, 642 S.W.2d at 480 (quoting Smith v. State, 541 S.W.2d 831, 835 (Tex.

Crim. App. 1976)).

D. Harm Analysis

       Because the erroneous denial of Ryan’s right to cross-examination violated the

Confrontation Clause, we must conduct a harmless error analysis under Rule 44.2(a). See TEX.

R. APP. P. 44.2(a); Rubio v. State, 241 S.W.3d 1, 3 (Tex. Crim. App. 2007). Under such an

analysis, an appellate court must reverse the conviction absent a determination beyond a

reasonable doubt that the error complained of did not contribute to the verdict. TEX. R. APP. P.

44.2(a); Rubio, 241 S.W.3d at 3.       “[A]ssuming that the damaging potential of the cross-

examination [was] fully realized,” we review the record in light of the following factors:



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       (1) the importance of the witness’ testimony in the prosecution’s case,
       (2) whether the testimony was cumulative,
       (3) the presence or absence of evidence corroborating or contradicting the
           testimony of the witness on material points,
       (4) the extent of cross-examination otherwise permitted, and, of course,
       (5) the overall strength of the prosecution’s case.

Van Arsdall, 475 U.S. at 684 (numbers added); accord Davis v. State, 203 S.W.3d 845, 852

(Tex. Crim. App. 2006).

       This case is based on the testimony of Martinez and the officer to whom Martinez related

the events. Precluding Ryan from showing the bias and motive of the only percipient witness

linking him to the offense hampered his defense. This is especially true in light of the State’s

closing argument:

       Now the defense made some promises too. One of the promises I wrote down
       when he was talking, he promised that he would show that this had not happened
       and that there’s other reasons for this activity to take place. That did not happen.
       Through his questioning of the witnesses trying to develop his story, that did not
       happen. He did not prove that this did not take place. He did not prove that
       there’s some kind of other reason for the accusation.
               ....
       He did not prove any of that. He made promises and he failed to come through.

See Miller v. State, 177 S.W.3d 1, 8 (Tex. App.—Houston [1st Dist.] 2004, no pet) (concluding

the error was harmful when “appellants were effectively deprived of the ability to test the

credibility of the complaining witness through cross-examination”); Rubio, 241 S.W.3d at 11

(concluding that the State’s witness’s statement likely contributed to the jury’s conviction and

thus the error clearly prejudiced the defendant’s case).      Furthermore, the excluded cross-

examination was not cumulative, there was no other witness to the events to corroborate

Martinez’s testimony, and defense counsel was not otherwise “afforded an opportunity for a

thorough and effective cross-examination.” See Ho, 171 S.W.3d at 304 (quoting Stults, 23

S.W.3d at 204); see also Van Arsdall, 475 U.S. at 684; Davis, 203 S.W.3d at 852.



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         Martinez’s motive to lie or exaggerate in order to gain sole custody of their children was

a critical issue for the defense. Thus, we cannot say, beyond a reasonable doubt, the trial court’s

error did not contribute to Ryan’s conviction. 5 See TEX. R. APP. P. 44.2(a).

                                                  CONCLUSION

         The testimony of Martinez and Officer Kohleppel is legally sufficient to sustain Ryan’s

conviction.     However, because the trial court improperly limited defense counsel’s cross-

examination of Martinez, Ryan was unable to effectively question the only witness linking him

with the offense regarding her motive to fabricate the charges. Accordingly, we reverse the

judgment of the trial court and remand this matter to the trial court for further proceedings

consistent with this opinion.



                                                           Rebecca Simmons, Justice

DO NOT PUBLISH




5
  Because this issue is dispositive of the appeal, we need not address the remaining issues on appeal. See TEX. R.
APP. P. 47.1 (requiring concise opinions addressing only those issues “necessary to final disposition of the appeal”).



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