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                                 MEMORANDUM OPINION

                                         No. 04-09-00406-CR

                                       Guadalupe Espino DIAZ,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009-CR-5043A
                             Honorable Mary D. Román, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: June 9, 2010

AFFIRMED

           A jury found appellant, Guadalupe Diaz, guilty of aggravated robbery against Kenneth Noble

and aggravated robbery against Recole Chew. The trial court assessed punishment at forty-five

years’ confinement. In a single issue on appeal, appellant asserts the trial court improperly limited

his right to cross-examine the two complainants about the relationship he had with them prior to the

robbery. We affirm.
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                                RIGHT OF CONFRONTATION

       During appellant’s trial, Kenneth Noble, one of the complainants, had criminal charges

pending against him for his part in the aggravated kidnaping of appellant’s fiancé. The kidnaping

occurred after the robbery. At trial, appellant attempted to cross-examine Noble about the facts

underlying the kidnaping charge, but the trial court only allowed appellant to question Noble about

whether such charges in fact were pending and whether the State had entered into any deal with

Noble for his testimony at appellant’s trial. Appellant also attempted to cross-examine Chew and

Noble about the fact that Noble was a drug dealer who had an on-going relationship with appellant,

on the defensive theory that the robbery was not a home invasion, but instead, was the result of a

drug deal gone bad. The trial court refused to allow appellant to engage in this line of questioning.

       “The right of cross-examination by the accused of a testifying State’s witness includes the

right to impeach the witness with relevant evidence that might reflect bias, interest, prejudice,

inconsistent statements, traits of character affecting credibility, or evidence that might go to any

impairment or disability affecting the witness’s credibility.” Virts v. State, 739 S.W.2d 25, 29 (Tex.

Crim. App. 1987). We ultimately conclude appellant was not harmed by the trial court’s refusal to

allow appellant to pursue his line of cross-examination, even if the trial court erred.

                                       HARM ANALYSIS

       Any error that improperly limits the right to confrontation, including the constitutional right

to cross-examination, is subject to a harmless error analysis. In Shelby v. State, the Court of

Criminal Appeals adopted the following analysis to be done when evidence has been excluded via

the erroneous limitation of cross-examination. 819 S.W.2d 544, 547 (Tex. Crim. App. 1991)

(adopting analysis first articulated in Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). First,


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assume the damaging potential of the cross-examination was fully realized. Shelby, 819 S.W.2d at

547. Second, with that assumption in mind, review the error in connection with the following

factors: (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 (5) the overall strength of the prosecution’s case. Finally, in light of the first two

prongs, determine if the error was harmless beyond a reasonable doubt. Id. To perform this analysis,

we must review the facts of this case and the excluded evidence.

       1.      Facts of this case

       Chew testified she and Noble were asleep in their apartment when, at around 9:00 a.m., she

heard the sound of breaking glass in the dining room. Believing someone had broken into the

apartment, she awakened Noble just as a man wearing a red sweatshirt and carrying a handgun

walked to the door of their bedroom. The man told Chew and Noble to get out of bed, go into the

living room, and lay down. As they walked into the living room, the man held the gun to Chew’s

head. Once they were in the living room, the man opened the front door and three other men, one

of whom was appellant, walked into the apartment. The man wearing the red sweatshirt asked her

and Noble to tell the men the location of their money and jewelry. She said Noble looked at

appellant and asked “is this how it is?” Appellant responded, “yes, this is how it is.” Appellant then

went to their bedroom and starting getting their clothes and shoes, while the other men started

“loading stuff out too.” At some point, the man in the red sweatshirt handed his gun to appellant,

who held the gun over Chew and Noble. Chew and Noble were then told to go into the bathroom.

Chew said the man in the red sweatshirt and appellant told her and Noble that because they knew


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the men, “it was dying time.” While in the bathroom, Chew overheard the men discussing needing

the keys to a car because their own car would not start. When they heard the men leave, Noble went

upstairs to his mother’s apartment, got one of his guns, and went outside. Chew heard about four

gunshots. Chew said their bed was flipped over, drawers were taken out of the bureau, closets were

emptied, and the dining room table was flipped over.

       Noble testified to the same sequence of events as did Chew. Noble described his initial

reaction to appellant’s appearance in his apartment as follows: “At that point, they come, and when

I recognized [appellant], I asked [him], I’m like, is this how it is, you know, yeah, Peg Boy, that’s

how it is, you know what I’m saying, give them what they want.” Later, after the police arrived,

Noble and Chew were taken in a police car to identify a suspect stopped near their apartment, whom

they identified as appellant.

       2.      Excluded testimony

       At a bench conference, appellant’s attorney argued Noble kidnaped appellant’s fiancé in

retaliation for the burglary, which was relevant to the alleged on-going dispute between the two men.

Appellant’s attorney also argued Noble was a drug dealer, something went wrong with the deal he

had with appellant, and what transpired in the apartment was in connection with the drug deal gone

bad.

       3.      Van Arsdall analysis

       We first focus on Noble’s testimony and assume that the damaging potential of the cross-

examination was fully realized. In other words, we must assume the jury was fully informed of the

facts underlying the alleged kidnaping and underlying any relationship between appellant and Noble

with regard to drug deals. We then apply the five factors.


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       Although Noble was one of the complainants, his testimony was cumulative of Chew’s

testimony and there was other evidence corroborating Noble’s testimony. In addition to Noble’s and

Chew’s testimony about what happened, two of Noble’s sisters also testified to appellant’s

involvement in the robbery. Shaqueida Noble testified she lived with her mother, sister, and another

brother in an apartment above Chew and Noble’s apartment. On the morning of the robbery, she

walked outside where she encountered appellant who pulled out a gun, put it to her head, and told

her to go back inside to Chew and Noble’s apartment. She was forced to go into the bathroom,

where she saw Chew, Noble, and her younger sister, LaToya. One of the men said “if we come out

they would kill us or if we were to say anything.” Once everything became quiet, she and Chew left

the bathroom. The next sound she heard was that of gunshots. At some point after the police

arrived, Shaqueida and her mother were driven, in a police car, to a location where a suspect had

been stopped. Shaqueida identified the man as appellant. Shaquieda also testified she had, on

previous occasions, seen her brother and appellant talking.

       Noble’s other sister, LaToya, testified she was upstairs in her apartment when she heard

noises coming from her brother’s apartment. She went downstairs, saw the door to his apartment

open, and walked in. She saw her brother in the hall with his hands up. When her brother told her

to leave, LaToya turned around and saw appellant. She said appellant held a gun to her and patted

her down, asking if she had a cell phone. He then opened the bathroom door and told her to go

inside with her brother and Chew. A few minutes later, her sister Shaquieda came into the bathroom.

She said the men asked for car keys. When the apartment became quiet, she and her brother walked

out of the bathroom together, at which point her brother went upstairs to get a gun. LaToya said her




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brother and the men exchanged gun fire. LaToya also was taken in a police car to identify a suspect,

whom she identified as appellant.

       On cross-examination of Noble, Noble stated he knew appellant “through a friend” and he

admitted appellant had been to his apartment numerous times. But he denied there was any dispute

between himself and appellant “as to money that was owed.” Noble said he had owned his gun for

two or three months, and left it in his mother’s apartment when he moved into the downstairs

apartment. He admitted he had not worked for about one year prior to the robbery, but he owned two

vehicles, one of which had “real nice rims.” He admitted getting robbed and shot at made him angry

and he wanted people punished. However, Noble admitted he signed an affidavit asking the State

to drop the robbery charges against appellant because Noble, who was incarcerated at the time, did

not want to be known as a snitch. Defense counsel then asked Noble the following question:

       Q.      Isn’t it true, Kenneth, that what actually happened that day, there was a
               dispute over money and along with other people, [appellant] went there to
               collect? Isn’t that what really happened? Isn’t that why you signed that
               affidavit trying to get these cases dismissed, because you know that’s the
               truth?

       A.      No. That’s not true.

       Our review of the record reveals defense counsel was otherwise able to cross-examine Noble,

who testified while wearing an orange Bexar County jail jumpsuit. And, although counsel was

prevented from exploring the possibility that Noble was involved with appellant in drug deals and

counsel was prevented from delving into the details of the aggravated kidnaping charge against him,

counsel’s cross-examination placed before the jury the fact that Noble was unemployed but owned

two vehicles and he knew appellant and interacted with him often. Defense counsel also raised the

suspicion that a dispute over money may have existed between appellant and Noble.


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                                         CONCLUSION

       In light of the foregoing analysis, we conclude the trial court’s error was harmless beyond

a reasonable doubt. Accordingly, we overrule appellant’s issue on appeal and affirm the trial court’s

judgment.



                                                       Sandee Bryan Marion, Justice

DO NOT PUBLISH




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