Cloud v. State ( 1978 )

OPINION

DALLY, Judge.

This is an appeal from a conviction for public lewdness. V.T.C.A. Penal Code, Sec. 21.07(a)(2); punishment is confinement in the county jail for six months and a fine of $1,500.

A Dallas police officer testified that he saw the appellant commit an act of deviate sexual intercourse in the steam room of the Bachelor Quarters Health Studio on April 29,1975. The appellant denied he had committed the act. Other than the appellant, the only witness whose testimony directly concerned the alleged offense was the police officer.

The appellant in his sole ground of error asserts that he was denied his constitutional right to the confrontation of the witness because the court restricted appellant’s right to. cross-examine the officer. The appellant’s counsel was permitted to fully cross-examine the officer concerning all of his testimony on direct examination. The appellant was not denied his constitutional right of confrontation and cross-examination. The issue presented is whether the court erred in refusing to allow appellant’s counsel to question the officer about a collateral matter in an effort to impeach and discredit the officer’s testimony.

The collateral matter is that on December 8, 1975, the officer had filed a false report about another officer in a vice undercover operation. The officer had said he did not hear a gun shot when in fact he did. As a result of making the false report the officer was suspended without pay for fifteen days and transferred from the vice squad to the traffic section.

Since the officer’s testimony was the only incriminating evidence against the appellant, the appellant argues that he should have been allowed to show that the officer had been suspended and why he had been suspended as bearing on the accuracy and truthfulness of his testimony. Appellant further argues that this evidence was admissible to support an inference that the officer was in a position where he might be pressured to obtain a conviction in order to curry favor with his superiors and enhance his police career. The appellant cites numerous authorities including Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Evans v. State, 519 S.W.2d 868 (Tex.Cr.App.1975); United States v. Fowler, 151 U.S.App.D.C. 79, 465 F.2d 664 (1972); Evans v. State, 550 P.2d 830 (Alaska 1976).

The State had filed a motion in limine requesting the court to exclude the evidence relating to the officer’s suspension. This motion was granted by the court prior to trial. However, during the trial, out of the presence of the jury, the court gave appellant’s counsel an opportunity to offer this evidence. The court told appellant’s counsel that if before the end of the trial they could produce authority to show that this evidence was admissible, it would be admitted. The record does not reflect that counsel’s position was supported by authority. The only evidence offered for the bill of exceptions was the testimony of the police officer in which the evidence involving his suspension was elicited. No extrinsic evidence relating to the officer’s suspension was offered.

Great latitude should be allowed the accused to show a witness’ bias or motive to falsify his testimony. Blair v. State, 511 S.W.2d 277 (Tex.Cr.App.1974); Seal v. State, 496 S.W.2d 621 (Tex.Cr.App.1973); Hooper v. State, 494 S.W.2d 846 (Tex.Cr.App.1973); Burkhalter v. State, 493 S.W.2d 214 (Tex.Cr.App.1973); Kohler v. State, 490 S.W.2d 592 (Tex.Cr.App.1973); Wood v. State, 486 S.W.2d 359 (Tex.Cr.App.1972). However, trial courts have considerable discretion as to how and when bias may be proved and as to what collateral evidence is material for that purpose. United States v. Robinson, 174 U.S.App.D.C. 224, 530 F.2d 1076 (1976); United States v. McCann, 465 F.2d 147 (5th Cir. 1972); Nutter v. United States, 412 F.2d 178 (9th Cir. 1969), cert. denied, 397 U.S. 927, 90 S.Ct. 935, 25 L.Ed.2d 107; United States v. Higgins, 362 F.2d 462 (7th Cir. 1966), cert. denied, 385 U.S. 945, 87 S.Ct. 316, 17 L.Ed.2d 224; cf. Aetna Insurance Co. v. Paddock, 301 F.2d 807 (5th Cir.1962).

The extent to which a witness may be cross-examined for the purpose of showing bias on a collateral matter rests on the sound discretion of the trial judge. Howell v. American Livestock Insurance Co., 483 F.2d 1354 (5th Cir. 1973); Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1930). The trial judge must balance the probative value of the evidence sought to be introduced against the risk its admission may entail. The potential risks include the possibility of undue prejudice, embarrassment or harassment to either a witness or a party, the possibility of mis-' leading or confusing a jury, and the possibility of undue delay or wáste of time. Howell v. American Livestock Insurance Co., supra; United States v. 412.93 Acres of Land, 455 F.2d 1242 (3rd Cir. 1972). Cf. Rules 403 and 608(b), Federal Rules of Evidence.

It is far from clear that the testimony elicited from the witness for the bill of exceptions would have discredited the officer. The officer filed the charges swearing that the appellant committed the offense prior to the events which led to the officer’s suspension. When the charges were filed the officer was not trying to redeem himself or to curry favor with his superiors as a result of a matter for which he was suspended. The officer’s testimony supported the charge he filed. It is, therefore, very speculative to say that his testimony concerning this alleged offense was any different than it would have been if he had not been suspended.

Recently we held that a trial court did not err in refusing to admit evidence that the principal witness, who was the complainant in a robbery case, had been discharged from his employment six months after the robbery because a bag of money for which he was responsible disappeared and he failed a polygraph test. This evidence had been offered to show bias of the witness and a motive for fabricating his testimony in accusing another for loss of money for which the witness was responsible. Smith v. State, 516 S.W.2d 415 (Tex. Cr.App.1974).

While the trial judge in his discretion may have admitted the evidence in the instant case to show a possible bias of the officer, we do not find that he abused his discretion in refusing to admit the evidence.

The judgment is affirmed.