
                              NO. 07-11-0471-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL B

                               OCTOBER 2, 2012
                        _____________________________


                                 AARON DIAL,


                                   Appellant
                                     v.


                             THE STATE OF TEXAS,


                                    Appellee
                        _____________________________

              FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

       NO. 2010-427,928; HONORABLE JOHN J. "TREY" MCCLENDON, PRESIDING
                        _____________________________

                             Memorandum Opinion
                        _____________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
      Appellant, Aaron Dial,  appeals  his  murder  conviction  and  99-year
sentence.  The two issues posed to us concern the trial court's decision  to
1) prevent appellant  from  cross-examining  a  State's  witness  about  the
State's  disposition  of  criminal  proceedings   involving   and   criminal
accusations levied against the witness, and  2)  admit  letters  written  by
appellant that allude to his membership in a  gang.   The  former  allegedly
was improper because it denied him the opportunity to  confront  and  cross-
examine a witness about possible bias.  The latter was improper  because  he
had not been afforded reasonable notice of the  State's  intent  to  proffer
the letters.  We overrule the issues.
      Issue 1 - Evidence of Bias
      Appellant sought to question a State's witness about several  criminal
matters involving that  witness.   One  concerned  the  State's  refusal  to
prosecute a criminal complaint levied against her.  Per the  complaint,  the
witness had failed to perform, in its entirety, a lease of personalty.   The
personalty consisted of a Playstation 3 for which she agreed to pay  rentals
approximating 500 plus dollars.  Because  she  defaulted  after  paying  400
plus dollars, the lessor filed a  criminal  complaint  alleging  theft.  The
decision to refuse prosecuting the complaint was made several  weeks  before
the witness testified at appellant's second trial.[1]
      Two other criminal matters  concerned  the  witness'  prosecution  for
resisting  arrest,  which  prosecutions  were  pending  when   the   witness
testified at appellant's first trial.  Though  originally  granted  deferred
adjudication,  the  State  successfully  moved  to  adjudicate  her   guilt.
Thereafter, she was placed either on regular probation  or  sentenced  to  a
relatively short term  of  incarceration,  which  term  she  served  on  the
weekends.  Appellant believed this to be evidence  pertaining  to  her  bias
since the adjudications occurred shortly before  the  first  trial  and  the
witness indicated that she "appreciate[d]" what the State had done for  her.
 However, no evidence of  record  suggests  that  her  decision  to  testify
against appellant was discussed or implicated in  the  State's  decision  to
seek the minimal punishment  she  ultimately  received.   The  witness  also
testified that her attorney dealt with the State and that she did  not  meet
with anyone from the  prosecutor's  office.   Thereafter,  the  trial  court
opted to exclude the evidence since there was no "deal"  between  the  State
and the witness or a showing that "her  testimony  could,  in  any  way,  be
influenced by that."
      The  pertinent  standard  of  review  is  one  of  abused  discretion.
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).   Next,  the
party attempting to use evidence of criminal matters involving a witness  to
insinuate that  the  witness  may  have  a  bias  favoring  the  State  must
establish some causal connection or logical nexus between  the  charges  and
the witness' potential bias.  Irby v. State,  327  S.W.3d  138,147-49  (Tex.
Crim. App. 2010), cert. denied, __ U.S. __, 131 S.Ct. 904, 178  L.Ed.2d  760
(2011), quoting Carpenter v. State, 979 S.W.2d 633,  634  (Tex.  Crim.  App.
1998).
      As for the theft complaint, the witness testified, during  voir  dire,
that she did not know of its filing until appellant broached the  matter  at
his trial.  Given this,  we  cannot  say  that  the  trial  court  erred  in
prohibiting its use as a means of showing bias.  See  Ex  parte  Kimes,  872
S.W.2d 700, 703 (Tex. Crim. App.  1993)  (finding  no  error  in  the  State
failing to turn over offense reports which would show bias or interest  when
the witness did not know he was a suspect in the crimes  and  there  was  no
legitimate tendency to show he was biased in favor of the  State).   Indeed,
the trial court could have logically concluded  that  a  witness'  testimony
could not reasonably be influenced by State decisions about which  she  knew
nothing.
      As to the disposition of the resisting  arrest  prosecutions,  no  one
disputes that the underlying crimes occurred  before  appellant  engaged  in
the conduct resulting in his murder conviction.  Nor does anyone  deny  that
the witness had been granted deferred  adjudication  before  them  as  well.
And, while their ultimate disposition came shortly before appellant's  trial
began and the witness "appreciate[d]" what the State did, no  one  proffered
evidence suggesting that the sentence assessed (and apparently agreed to  by
the State) differed in any way from that levied in like situations.  Nor  is
there evidence that the topic of the witness  testifying  against  appellant
ever arose while she sought to dispose of her own criminal concerns.
      Moreover, if the goal of appellant was to show that  the  witness  had
reason to testify against appellant and to assist in his conviction, he  had
available other evidence with which to achieve that  result.   It  consisted
of the witness' relationship  to  the  decedent.   She  was  the  decedent's
niece, and the decedent purportedly was coming to  her  rescue.[2]   So  too
had  appellant  allegedly  engaged  in  an  altercation  with  the  witness'
brother.
      Given the presence of other possible motives for the witness  favoring
appellant's conviction, given the lack of any agreement between the  witness
and State regarding her testifying in  the  prosecution  of  appellant,  and
given the lack  of  evidence  suggesting,  in  any  way,  that  the  witness
received special or better treatment from the State viz the  disposition  of
the misdemeanors against her, we cannot say that the trial  court  erred  in
finding no logical nexus between the witness'  testimony  against  appellant
and the way in which her criminal matters were resolved.   In  other  words,
the decision to exclude the evidence fell  within  the  zone  of  reasonable
disagreement and, therefore, did not evince an  abuse  of  discretion.   See
Wacholtz v. State, 296 S.W.3d 855, 857-58 (Tex. App.-  Amarillo  2009,  pet.
ref'd) (holding that a trial court does not  abuse  its  discretion  if  its
decision falls within the zone of reasonable disagreement).
      Issue 2 - Extraneous Offense
      In  his  second  issue,  appellant  complains  of  extraneous  offense
evidence admitted during the punishment phase.  The  evidence  consisted  of
letters written  by  appellant  after  his  arrest  and  in  which  he  made
reference to the Rolling Sixties Crip Gang  and  his  affiliation  with  it.
One of the letters  came  to  the  knowledge  of  the  State  during  trial.
Appellant argues that he did not receive sufficient notice  of  the  State's
intent to proffer them as evidence.
      We assume, arguendo, that appellant is  correct  and  that  the  trial
court erred in admitting them.   The  record,  nonetheless,  contains  other
evidence, e.g. tattoos, of appellant's affiliation with the Rolling  Sixties
Crips and its involvement with the drug  business.   Furthermore,  appellant
does not attack the admission of that evidence on appeal.   Given  this,  we
cannot say that admission of the letters  was  harmful;  their  tendency  to
attribute gang affiliation is redundant of other  admissible  evidence  that
did the same thing.  See Prieto v. State, 337 S.W.3d 918,  922  (Tex.  App.-
Amarillo 2011, pet. ref'd) (stating that  the  error  in  the  admission  of
evidence is  rendered  harmless  when  like  evidence  is  admitted  without
objection).
      The judgment is affirmed.

                                  Brian Quinn
                                  Chief Justice
Do not publish.

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     [1]Appellant previously had been tried  for  the  same  offense,  which
proceeding ended in a mistrial.  The witness in question  had  testified  at
it as well.
     [2]Appellant and the witness had engaged in a heated  verbal  exchange.
Upon appellant uttering words which could be interpreted as  his  intent  to
strike her if she  refused  to  leave  him  alone,  the  decedent  allegedly
attempted to protect her.


