Opinion issued July 30, 2009




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                                     For The
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                               NO. 01-08-00275-CR


                  WILLIAM MARK GIBSON, Appellant

                                         v.

                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 54th District Court
                         McLennan County, Texas
                   Trial Court Cause No. 2006-1329-C2
                      PRESUBMISSION MEMORANDUM

      A jury convicted appellant, William Mark Gibson, of capital murder. See TEX.

PEN. CODE ANN. § 19.03 (Vernon Supp. 2008). Because the State did not seek the

death penalty, a life sentence in prison was automatic. Id. at § 12.31(a) (Vernon Supp.

2008). In three issues, appellant contends that: (1) the trial court violated his

constitutional right to a unanimous verdict by charging the jury in the disjunctive

when two different theories of capital murder were alleged; (2) Section 19.03 of the

Texas Penal Code (“the capital murder statute”), if it permits such a disjunctive

charge, violates the Texas Constitution’s guarantee of a unanimous verdict; and (3)

the trial court erred by overruling appellant’s objections to the introduction of

evidence regarding threats appellant allegedly made to his alibi witnesses. We affirm.

                                    Background

      A fire at the house in which they were renting a room killed appellant’s ex-wife,

Janie Rios, and her daughter, Abby, in the early morning hours of November 13, 1999.

Authorities determined that the fire was intentionally set.

      In October of 2006, appellant was indicted for capital murder in connection

with the deaths. In three paragraphs, the indictment alleged that appellant murdered

Janie in the course of committing arson; murdered both Janie and Abby during the

same criminal transaction; and murdered Abby, who was under six years old. The


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State did not seek the death penalty.

      After a first trial resulted in a hung jury, the case went to trial for the second

time in February 2008. The State abandoned the third paragraph of the indictment,

which dealt with the murder of a child under six.

      Appellant presented his mother, Martha Gibson (“Gibson”), and former live-in

girlfriend, Martha Loredo (“Loredo”), as alibi witnesses. Both testified that, on the

night of the fire, Loredo and appellant were living with Gibson. Gibson testified that

she went to bed first and that Loredo and appellant were in bed when she opened their

bedroom door at 6:30 a.m. to inform them of the fire, about which she had learned

from a relative. Loredo testified that appellant was in bed with her “all night” until

Gibson woke them up. The State impeached both witnesses with statements they had

made to police in the past. In those statements, the witnesses detailed threats appellant

had made to them, including threats to kill them and to burn Gibson’s house down. In

response to appellant’s objections on several grounds, the State argued that the

statements were probative of bias or motive because they showed that appellant’s alibi

witnesses feared him.

      The court charged the jury disjunctively on the two theories of capital murder.

The jury convicted appellant.

                                        Unanimity


                                            3
      In his first issue, appellant contends that the trial court violated his

constitutional right to a unanimous verdict by disjunctively submitting two different

theories of capital murder to the jury. Appellant specifically argues that each theory

listed in the capital murder statute constitutes a separate offense, rendering such a

disjunctive charge improper.

The Capital Murder Statute

      The capital murder statute provides that a person commits the offense of capital

murder if the person intentionally or knowingly causes the death of an individual and

one of the following aggravating circumstances exists:

      (1) the person murders a peace officer or fireman who is acting in the lawful
      discharge of an official duty and who the person knows is a peace officer or
      fireman;

      (2) the person intentionally commits the murder in the course of committing or
      attempting to commit kidnapping, burglary, robbery, aggravated sexual assault,
      arson, obstruction or retaliation, or terroristic threat under Section 22.07(a)(1),
      (3), (4), (5), or (6) [of the Penal Code];

      (3) the person commits the murder for remuneration or the promise of
      remuneration or employs another to commit the murder for remuneration or the
      promise of remuneration;

      (4) the person commits the murder while escaping or attempting to escape from
      a penal institution;

      (5) the person, while incarcerated in a penal institution, murders another:
             (A) who is employed in the operation of the penal institution; or
             (B) with the intent to establish, maintain, or participate in a combination
             or in the profits of a combination;

                                           4
      (6) the person:
             (A) while incarcerated for an offense under this section or Section 9.02
             [of the Penal Code], murders another; or
             (B) while serving a sentence of life imprisonment or a term of 99 years
             for an offense under Section 20.04, 22.021, or 29.03, murders another;

      (7) the person murders more than one person:
             (A) during the same criminal transaction; or
             (B) during different criminal transactions but the murders are committed
             pursuant to the same scheme or course of conduct;

      (8) the person murders an individual under six years of age; or

      (9) the person murders another person in retaliation for or on account of the
      service or status of the other person as a judge . . . .
TEX. PENAL CODE ANN. § 19.03(a) (Vernon Supp. 2008).

The Indictment and Jury Charge

      Paragraph I of the indictment in this case alleged that appellant “did then and

there intentionally cause the death of an individual, namely, JANIE RIOS, by starting

a fire that cause [sic] the death of JANIE RIOS, and the defendant was then and there

in the course of committing or attempting to commit the offense of arson of a building

of Henry Thomas Norris, who was the owner of said building.” Paragraph II alleged

that appellant “did then and there intentionally or knowingly cause the death of an

individual, namely JANIE RIOS, by starting a fire that cause [sic] the death of JANIE

RIOS, and did then and there intentionally or knowingly cause the death of another

individual, namely, ABBY RIOS, by starting a fire that caused the death of ABBY

RIOS, and both murders were committed during the same criminal transaction.”

                                          5
Hence, the first paragraph of the indictment alleged the presence of an aggravating

factor described in subsection (a)(2) of the capital murder statute, while the second

paragraph alleged the presence of an aggravating factor described in subsection

(a)(7)(A).

      The jury charge read, in relevant part, as follows (emphasis in italics added):

      Now, if you find from the evidence beyond a reasonable doubt that on or about
      the 13th day of November, 1999, in McLennan County, Texas, the defendant,
      William Mark Gibson, did then and there intentionally cause the death of an
      individual, namely, Janie Rios, by starting a fire that caused the death of Janie
      Rios, and the defendant was then and there in the course of committing or
      attempting to commit the offense of arson of a building of Henry Thomas
      Norris, who was the owner of said building; or if you find from the evidence
      beyond a reasonable doubt that on or about the 13th day of November, 1999, in
      McLennan County, Texas, the defendant, William Mark Gibson, did then and
      there intentionally cause the death of an individual, namely, Janie Rios, by
      starting a fire that caused the death of Janie Rios, and did then and there
      intentionally cause the death of another individual, namely, Abby Rios, by
      starting a fire that caused the death of Abby Rios, and both murders were
      committed during the same criminal transaction, then you will find the
      defendant guilty of Capital Murder, as alleged in the indictment.

The Case Law

      Appellant argues that the disjunctive language of the charge violated his right

to a unanimous jury verdict. The Court of Criminal Appeals recently decided an

identical issue adversely to appellant. In Gamboa v. State, No. AP-75635, 2009 WL

928552 (Tex. Crim. App. Apr. 8, 2009), the defendant was charged in a two-paragraph

indictment with committing a murder while committing or attempting to commit the


                                          6
offense of robbery and with committing two murders during the same criminal

transaction. The two theories were submitted to the jury disjunctively, and the

defendant made the same complaint on appeal that appellant does here.

      The Court of Criminal Appeals affirmed the trial court.1 In doing so, the Court

cited its prior holding in Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App.

1991), that the disjunctive submission of two theories of capital murder with two

different aggravating elements “did not violate the right to a unanimous verdict

because the different theories were simply alternate methods of committing the same

offense.” Gamboa, 2009 WL 928552, at *6.

      The defendant in Gamboa argued that Kitchens was distinguishable because the

alternate theories of capital murder in Kitchens involved aggravating elements that

were both listed within one subsection (subsection (a)(2)) of the capital murder

statute, while his case, like the one now before us, implicated two separate subsections

(subsections (a)(2) and (a)(7)(A)). The Gamboa court reexamined the relevant

precedent and found that distinction immaterial, concluding that the Kitchens holding

“applies equally to all alternate theories of capital murder contained within [the capital

murder statute], whether they are found in the same or different subsections, so long



1
      Because Gamboa was a death penalty case, appeal to the Court of Criminal Appeals was
      automatic.

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as the same victim is alleged for the predicate murder[.]” Id. at *7.

      In the instant case, the State alleged the same victim, Janie Rios, for the

predicate murder under both charged theories of capital murder. Because Gamboa and

Kitchens therefore control, we overrule appellant’s first issue.

                             Constitutional Challenge

      In his second issue, appellant contends that the capital murder statute, if it

permits a disjunctive charge, violates the Texas Constitution’s guarantee of a

unanimous verdict.

      The Texas Constitution requires jury unanimity in felony cases. TEX. CONST.

art. V, § 13; Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007). “Unanimity

ensures that all jurors reach a consensus ‘on the same act for a conviction.’” Pizzo,

235 S.W.3d at 714 (quoting Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App.

2000)). Jury unanimity is required on the essential elements of the offense but is

generally not required on the alternate modes or means of commission. Pizzo, 235

S.W.3d at 714.

      Appellant argues that the subsections of the capital murder statute establish not

one crime but several, each independent from the others. As a result, he argues, every

subsection represents an essential element of a particular type of capital murder and

requires a unanimous finding. To comply with the demands of the Texas Constitution,


                                          8
appellant contends, the legislature “should redraft the statute to make it plain that [the

subsections] are elements and not ‘manner or means,’ and that the jury must find them

unanimously.” Appellant offers no support for this argument other than his own

statement that the subsections of the capital murder statute “are forbidden conduct”

and consequently fall within the definition of “element” provided in Section

1.07(a)(22)(A) of the Penal Code.2

      We find no precedent bolstering appellant’s claim that the subsections of the

capital murder statute establish essential elements of independent offenses even when

only one predicate murder is alleged. Rather, the Court of Criminal Appeals has

repeatedly held that, in such a case, the subsections establish alternative theories of

committing one crime. See Gamboa, 2009 WL 928552, at *7; Kitchens, 823 S.W.2d

at 257–58; Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004).

Moreover, the court specifically applied the term “modes of commission” to the

discussion in Pizzo of its Kitchens holding, which we find instructive because

Kitchens was a capital murder case. Pizzo, 235 S.W.3d at 716 (“We concluded [in

Kitchens] that a jury may issue a general verdict where different modes of commission

are submitted in the disjunctive and there is sufficient evidence to support either mode


2
      The Penal Code defines “element of offense” as the forbidden conduct, the required
      culpability, any required result, and the negation of any exception to the offense. TEX. PENAL
      CODE ANN. § 1.07(a)(22) (Vernon Supp. 2008).

                                                9
of commission.” [emphasis added]). As noted above, the court stated in Pizzo that the

Texas Constitution generally does not require jury unanimity on the alternate modes

or means of commission of an offense. Id. at 714.

      The capital murder statute requires unanimous findings that a defendant

committed a murder and that at least one of several listed aggravating circumstances

was present. Appellant has not persuaded us that those requirements fall short of the

mandates of the Texas Constitution. We overrule appellant’s second issue.

                                 Threats to Witnesses

      In his third issue, appellant contends that the trial court erred by overruling

appellant’s objections to the introduction of evidence regarding threats appellant

allegedly made to his alibi witnesses.

Alibi Testimony

      Appellant called Loredo and Gibson as alibi witnesses. At the time of the fire,

both appellant and Loredo were living with Gibson, and both Loredo and Gibson

testified that all three were home that night. Gibson testified that she went to bed first

and that appellant and Loredo were in bed at 6:30 a.m. when Gibson opened their

bedroom door to inform them of the fire. Loredo testified that appellant was in bed

with her “all night” until Gibson woke them up.

Impeachment of Gibson


                                           10
      On cross-examination, the prosecutor asked Gibson:

      [Prosecutor]: Have you ever been afraid of your son?

      [Gibson]: No.

      [Prosecutor]: Do you want to think carefully before you answer that question?

      [Gibson]: I’m not afraid of my son.

      At this point, the parties conferred with the court in chambers.3 The chambers

conference proceeded as follows:

      [Prosecutor]: Your Honor, I have a written statement by Martha Flores Gibson
      from July 31st of 2000, regarding threats made to her by her son, [appellant].
      She called the police department and stated that she was terrified because he
      had told her he was going to send somebody over there to—and pardon my
      language, this is a quote, f*** us, rape us and slice our throats, unquote. He
      called four or five times making threats, that he had threatened to kill his sister,
      that he had made threats against Martha Loredo. And additionally, I have an
      audio statement of Pat Swanton and Tim Lawdermilk speaking with her in
      2006, in which she reiterated that those statements and threats were made and
      that he had threatened to burn the house down around her and the children.

      [The Court]: All right.

      [Defense counsel]: Your Honor, we—our response to that would be that the
      Government is trying to bootstrap these statements in. There’s no evidence that
      they’re tied in any way to this witness’ [sic] perspective testimony with relation
      to this or any other offense. And they’re terribly inflammatory and prejudicial
      against us, and that the Government is trying to bootstrap their admission,
      although they are not probative to the issues in this particular case.



3
      The court had granted appellant’s motion in limine with regard to, among other things,
      “threats to cause harm directly or through third parties.”

                                            11
[Prosecutor]: Your Honor, I think it affects the witness’ [sic] biases. On the one
hand, she’s emotionally obviously tied to her son. On the other hand, I think
she’s frightened of what he might do if she doesn’t do what she’s expected to
do. And I think it—it goes to the credibility of her testimony.

[Prosecutor’s co-counsel]: We think it goes to the motive, bias and prejudice
of the witness testifying. The statement that we wish to offer is that he
threatened to burn her house down, uh, that—

[The Court]: As far as that goes, I’ll allow that statement.

[Prosecutor’s co-counsel]: All right. That’s the only one—that’s the only one
we intend to issue. We think it goes to her credibility as a witness. This is a
direct threat made by the defendant to this witness that could influence her
testimony and how she testifies. We would like to ask her about that. She can
confirm or deny that she made it. If she denies it, then we believe we, under the
law, have the right to offer extrinsic evidence of that. We have a recording
which the officer made which we’re prepared to offer at a later time.

Back in open court, Gibson testified as follows on cross-examination:

[Prosecutor]: Ms. Gibson, do you remember making a phone call to the Waco
Police Department on June 27th of 2006?

[Gibson]: No, ma’am, I don’t remember.

[Prosecutor]: Do you remember that you reported at that time to the Waco
Police Department that you were afraid of your son because he had threatened
to burn your house down?

[Defense counsel]: Your Honor, I’m going to object to this testimony on the
grounds we stated earlier.

[The Court]: Overruled.

[Defense counsel’s co-counsel]: And, Judge, also, she doesn’t remember.

[The Court]: You can ask the question, if she says yes or no—

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[Prosecutor]: I’m just trying to establish the predicate, Your Honor.
[To Gibson]: Are you saying that you don’t remember?

[Gibson]: I don’t remember.

[Prosecutor]: You don’t remember a time that you reported it to the police or
you don’t remember your son’s telling you he was going to burn your house
down?

[Gibson]: I don’t remember reporting it to the police, ma’am.

[Prosecutor]: Okay. Are you clearly saying that your son never told you that he
was going to burn your house down in June of 2000—I’m sorry, in—yeah, June
of 2006?

[Gibson]: I don’t remember, ma’am.

[Prosecutor]: Okay. But you steadfastly commit to this jury that you’re not
worried about what your son might do if you don’t testify the way he expects
you to in this trial?

[Gibson]: My son doesn’t have nothing to do with me testifying here. I mean,
I’m—I’m here, you know—I was asked to come here, you know, for my son’s
sake, yes. You know, this is my son. But my son is not a threat to me at all
because he will not hurt me at all. My son has never told me anything like that.

On rebuttal, the State called Sergeant Swanton of the Waco Police Department:

[Prosecutor]: Now, let me direct your attention to June the 27th of the year
2006. And did you have an occasion on that date to go and conduct an
interview with Martha Gibson concerning a matter of—with—involving her
son, [appellant]?

[Swanton]: Yes, sir, I did.

[Prosecutor]: Okay. And did you have an occasion to ask her about a threat that
her son, [appellant], had made concerning burning their house down?


                                   13
      [Swanton]: Yes, sir, I did.

      [Prosecutor]: And did she tell you that [appellant] had made that threat?

      [Swanton]: She did.

      [Prosecutor]: Okay. Did you make a recording of that conversation?

      [Swanton]: Yes, sir.

      The State then offered the portion of the recording in which Gibson described

appellant’s threat to burn her house down. The portion was admitted into evidence and

played for the jury.

Impeachment of Loredo

      On cross-examination, the prosecutor asked Loredo the same question she had

asked Gibson:

      [Prosecutor]: Have you ever been afraid of [appellant]?

      [Loredo]: No.

      The parties again conferred with the court in chambers:

      [Prosecutor]: Your Honor, I have a written statement from Martha Loredo dated
      July 31st of 2000, approximately eight and a half months after—after the fatal
      fire. I won’t read all of it. But essentially it says, “Well, [appellant] had told me
      that he was mad at me for calling CPS on him. I told him that no one in this
      house called CPS on him and that he would have to stop calling the house. As
      he would not stop calling the house saying that he was going to kill all of us
      [sic]. And that he was going to get me back for leaving him. And he told his
      mom that she was a bitch for letting me stay here at the house.” And the rest
      isn’t really relevant. Let me see.
              Yeah. So essentially, that he was calling and saying that he was going to

                                           14
      kill her and all of the people in the house.

      Defense counsel voiced objections similar to those made to Gibson’s

statements, and the prosecutors gave similar responses. The trial court ruled that the

prosecutor could ask Loredo about the statement. Loredo then testified as follows:

      [Prosecutor]: Ms. Loredo, do you remember making a police report on July 31st
      of 2000?

      [Loredo]: July 31st, 2000. No, I don’t remember making one.

      [Prosecutor]: Do you remember making a written statement to a police officer
      regarding the defendant’s threats to kill you and everyone in the house?

      [Loredo]: What year was that?

      [Prosecutor]: 2000. It was about eight months after the fatal fire.

      [Loredo]: 2000.

      [Prosecutor]: It was while you were living with [Gibson] and [appellant] was
      not?

      [Loredo]: No.

      [Prosecutor]: You don’t remember it?

      [Loredo]: No.

      [Prosecutor]: Permission to approach, Your Honor?

      [The Court]: All right.

      [Prosecutor]: Ma’am, would you please read this statement to yourself, not
      aloud—


                                          15
[Loredo]: Okay.

[Prosecutor]: —to the top where I’ve marked in ink here.

[Loredo]: (Reading.)
      Yes, ma’am. This is, um—yeah, I remember.

[Prosecutor]: You do remember making this statement?

[Loredo]: Now that I finished, yes.

[Prosecutor]: All right. And it’s in your own handwriting, is it not?

[Loredo]: Yes, ma’am.

[Prosecutor]: And having refreshed your memory with that statement, would
you like to answer again whether or not you were afraid of the defendant on
July 31st of 2000?

[Loredo]: Um, not afraid of him. Um, more just concerned.

[Prosecutor]: What exactly had he threatened to do?

[Loredo]: That—that day, uh, he was very, very drunk. And, um, he was going
to call CPS on the kids and take my baby away and, um, stuff like that. But it’s
just—we were just arguing.

[Prosecutor]: Wasn’t it actually that he was mad at you because he thought you
had called CPS on him?

[Loredo]: That he—I don’t remember that day.

[Prosecutor]: Would you like to look at it again?

[Loredo]: He was upset because he thought I called CPS on him, but I didn’t.
And that’s when we got into that argument.

[Prosecutor]: And what did he threaten to do to you?

                                   16
    [Loredo]: Um, he said a lot of things that day. I don’t actually remember.

    [Prosecutor]: Well, you’ve just refreshed your memory. What did you tell the
    police officers that he threatened to do to you?

    [Loredo]: I lied. I lied to the police officers. Yes, I did.

    [Prosecutor]: You’re stating now under oath that you lied to the police officers
    in this written statement?

    [Loredo]: Yes. I was upset and I lied to the police officers.

    [Prosecutor]: So when you said—
    [To the Court]: May I read this, Your Honor?

    [The Court]: Uh-huh.

    [Prosecutor, reading statement]: “Well, [appellant] had told me that he was mad
    at me for calling CPS on him. I told him that no one in this house called CPS
    on him and that he would have to stop calling the house, if he would not stop
    calling the house saying that he was going to kill all of us and that he was going
    to get back at me for leaving him [sic].” Is that what you wrote?

    [Loredo]: Yes.

    [Prosecutor]: Okay. And is the fact that he has threatened you in the past, um,
    does that have any impact on your willingness to testify for him now and give
    him an alibi so that he won’t be mad at you?

    [Loredo]: No, ma’am. I’m not afraid of [appellant].

    [Prosecutor]: And do you admit that you were afraid of him on July 31st of
    2000?

    [Loredo]: We were angry. People say things when they’re angry.

Arguments


                                         17
      Appellant poses several arguments, some of which overlap, as to why the trial

court erred in admitting the threats made to Gibson and Loredo. First, appellant argues

that “the question ‘Have you ever been afraid of [Appellant]?’ is not relevant” because

it did not establish whether the alibi witnesses were afraid of appellant at the time they

testified. Second, appellant argues that the admitted statements were not “prior

inconsistent statements.” Third, appellant argues that the events discussed in the prior

statements “occurred in the past” and therefore were irrelevant to the question of bias

at the time of trial. Fourth, appellant argues that the prosecutors simply impeached the

witnesses with highly prejudicial evidence and “never asked a question” to determine

whether the witnesses “were making up the alibi story.” Lastly, appellant argues that

the prosecutors inquired about the witnesses’ fear of appellant “in bad faith so that the

extraneous threats could be put before the jury.”

      The State argues, as it did at trial, that admission of the objected-to evidence

was proper because “the fact that the witnesses had been previously threatened with

grievous bodily harm or death was relevant to establish bias or interest in that they

were afraid not to testify favorably for appellant.”

Applicable Law

      The admissibility of evidence is within the discretion of the trial court and will

not be overturned absent an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627


                                           18
(Tex. Crim. App. 2003). “That is to say, as long as the trial court’s ruling was within

the zone of reasonable disagreement, the appellate court should affirm.” Id.

      After laying the proper predicate, an adverse party may impeach a witness “by

proof of circumstances or statements showing bias or interest on the part of such

witness,” unless the witness unequivocally admits such bias or interest, in which case

“extrinsic evidence of same shall not be admitted.” TEX. R. EVID. 613(b). An adverse

party has the right to prove any motive or declaration of a witness which will tend to

show his bias, interest or prejudice, or any other mental condition of the witness which

in any manner tends to affect his credibility. Carter v. State, 668 S.W.2d 851, 853

(Tex. App.—San Antonio 1984, pet. ref’d) (citing Jackson v. State, 482 S.W.2d 864,

867 (Tex. Crim. App. 1972)). Evidence to show bias or interest “encompasses all facts

and circumstances which, when tested by human experience, tend to show that a

witness may shade his testimony for the purpose of helping to establish one side of the

cause only.” Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim. App. 1984) (citing

Jackson, 482 S.W.2d at 868). The trial court has considerable discretion as to how

bias is proven and as to what collateral evidence can be introduced for that purpose.

Spriggs v. State, 652 S.W.2d 405, 408 (Tex. Crim. App. 1983); Kelley v. State, 807

S.W.2d 810, 817 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d). An inquiry into

whether a defense witness has “ever been afraid of” a criminal defendant fairly


                                          19
inquires into a condition which might affect the credibility of the witness. Carter, 668

S.W.2d at 853.

Rulings

      We conclude that the trial court did not abuse its discretion by allowing the

prosecutors to impeach the witnesses with their prior statements. Given the closeness

of the relationships between the alibi witnesses and appellant and the nature of the

alleged threats, the trial court’s rulings that the statements made by the witnesses to

police were probative of bias, motive, or interest because fear of appellant may have

affected their testimony did not fall outside of the zone of reasonable disagreement.

      Appellant argues that the State impeached his witnesses “in bad faith so that the

extraneous threats could be put before the jury,” citing Brown v. State, 523 S.W.2d

238, 241–42 (Tex. Crim. App. 1975). Brown is distinguishable because it deals with

the question of when a party may impeach its own witness, not the question of how

a party may impeach an adverse witness. Regardless, the record here shows that the

statements were introduced for a clearly defined purpose following fair inquiries into

the credibility of the witnesses.

      Appellant further argues that the witnesses’ statements were not “prior

inconsistent statements” and were too temporally remote to be probative of bias.

Impeachment through bias, motive, or interest and impeachment by prior inconsistent


                                          20
statement are two distinct types of impeachment. Michael v. State, 235 S.W.3d 723,

725–26 (Tex. Crim. App. 2007); TEX. R. EVID. 613(a)–(b). Impeachment through bias

is a general attack on the witness, while impeachment by prior inconsistent statement

is an attack on the accuracy of specific testimony. Michael, 235 S.W.3d at 725–26. As

to the timing issue, the trial court could reasonably have concluded that the statements

were not so remote as to make them irrelevant to show possible witness bias. Evidence

to show bias or interest “encompasses all facts and circumstances which, when tested

by human experience, tend to show that a witness may shade his testimony for the

purpose of helping to establish one side of the cause only.” Koehler, 679 S.W.2d at

9 (emphasis added).

      Finding no abuse of discretion, we overrule appellant’s third point of error.

                                     Conclusion

      We affirm the judgment of the trial court.




                                        George C. Hanks
                                        Justice


Panel consists of Justices Keyes, Hanks, and Bland.


                                          21
Do not publish. See TEX. R. APP. P. 47.2(b).




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