Terry M. Holmes v. State ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-06-00105-CR ______________________________



TERRY M. HOLMES, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Court at Law Harrison County, Texas Trial Court No. 2006-0285

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Terry M. Holmes pled guilty, pursuant to a plea agreement, to driving while intoxicated. The trial court certified that he had a right to appeal matters raised by written motion filed and ruled on before trial. See Tex. R. App. P. 25.2(a)(2).

Holmes contends on appeal that he filed a motion to cross-examine the State's expert about the operation of the Intoxilyzer 5000, which was denied by the trial court before trial. A supplemental clerk's record contains a copy of such a motion, which was formally denied by the trial court April 24, 2006, the date of the hearing on the guilty plea. The record of the guilty plea states that the document had been filed before trial. The motion was evidently presented to the trial court at the hearing, and the copy attached as Exhibit 1 to the reporter's record is file-marked April 24, 2005. See Tex. R. Civ. P. 74.

This case is one of eight appeals filed by counsel nearly simultaneously, all of which had to do with cross-examination, or the lack thereof, of a State's expert about the device used to measure breath alcohol. This case aligns both procedurally and legally with Woodall v. State, No. 06-06-00106-CR, 2007 Tex. App. LEXIS 1304 (Tex. App.--Texarkana Feb. 22, 2007, no pet. h.). Factually, the only difference is that in Woodall, some evidence was heard before the defendant withdrew his plea of not guilty, and in this case Holmes pled before any evidence was offered.

The brief filed by counsel is identical to that filed in Woodall, and we likewise read the brief in this case to assert one error: that the trial court erred in entering the order barring Holmes from conducting any cross-examination of the State's breath-testing expert on the stated issues. The State likewise argues identically in this case: first, that error was not preserved because there was no bill of exceptions made; and second, that the accuracy of the machine was established by caselaw and statute and not subject to attack.

The discussion between counsel and the trial court in this case is virtually nonexistent. However, the comments made by counsel and the trial court, and the court's ready acceptance and denial of the motion--which it had seen before and which specifically sets out the areas of questioning that counsel wished to raise--make it quite clear that the court knew exactly the matters counsel wished to raise. Further, it is apparent that the court was fully aware of the attacks counsel wanted to make through questioning the State's expert. As in Woodall, and for the reasons stated therein, we find that the issue in this case was also preserved for review.

Again, as in our opinion in Woodall, we also find in this case (1) that complete denial of the right to cross-examination was error, (2) that the right to present a defense is a fundamental element of due process of law, and (3) that a violation of that right constitutes constitutional error. Therefore, we must reverse a trial court's judgment when such an error is present unless we can determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex. R. App. P. 44.2(a) (requiring reversal of constitutional error unless appellate court determines beyond reasonable doubt that the error did not contribute to conviction); see also Davis v. Alaska, 415 U.S. 308, 318 (1974) (denial of effective cross-examination is "constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it").

Holmes entered his plea of guilty after the trial court denied his pretrial motion to permit cross-examination of the State's expert as to the efficacy of the breath-testing machine. Because Holmes pled guilty following the trial court's pretrial ruling on his motion and obtained permission to appeal that ruling, on the record before us we cannot determine beyond a reasonable doubt that the trial court's erroneous ruling on Holmes' motion to exclude did not contribute to his guilty plea, that is, his conviction. See Hale v. State, 139 S.W.3d 418, 420 (Tex. App.--Fort Worth 2004, no pet.).

Accordingly, we sustain Holmes' contention of error.

We reverse the judgment and remand the case to the trial court for further proceedings.

Josh R. Morriss, III

Chief Justice

Date Submitted: January 24, 2007

Date Decided: March 9, 2007

Do Not Publish

60;                                         Justice

Date Submitted:      April 25, 2006

Date Decided:         April 26, 2006