Scott Everett Shine v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-16-00088-CR
SCOTT EVERETT SHINE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court
Franklin County, Texas
Trial Court No. F-9048
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Scott Everett Shine was convicted of engaging in the organized criminal activity of
delivery of a controlled substance, methamphetamine, enhanced by two prior convictions (to
which he pled true).1 On his conviction and with the enhancements, Shine was sentenced to life
imprisonment. Shine appeals the trial court’s judgment, contending that the trial court erred in
limiting Shine’s cross-examination of one of the State’s law enforcement witnesses. We find no
abuse of discretion in the trial court’s ruling and overrule Shine’s singular point of error.2
Shine’s sole appellate complaint is that the trial court erroneously limited Shine’s cross-
examination of Texas Department of Public Safety Special Agent Danny Kelly. Shine tried to
elicit testimony from Kelly that when he procured an arrest warrant for Shine, the arrest was simply
for delivery of methamphetamine, a controlled substance, and not for engaging in organized
criminal activity, the offense for which Shine was indicted and convicted.
The United States Constitution’s Confrontation Clause3 includes the right of an accused to
cross-examine witnesses. “This right is not unqualified, however; the trial judge has wide
discretion in limiting the scope and extent of cross-examination. Generally, the right to present
1
The primary charges were made pursuant to Section 481.112 of the Texas Health and Safety Code and Section 71.02
of the Texas Penal Code. TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2010); TEX. PENAL CODE ANN.
§ 71.02 (West Supp. 2016). The enhancement was made pursuant to Section 12.42(d) of the Texas Penal Code. TEX.
PENAL CODE ANN. § 12.42(d) (West Supp. 2016).
2
Shine was tried on three indictments, all alleging the same crime; each case alleged engaging in criminal activity
based on sales of methamphetamine on different dates. He was convicted in all three cases, and he appeals all three
in a solitary brief. We address the remaining two appeals, which both bring the same point of error, in our opinions
issued on even date herewith, in cause numbers 06-16-00089-CR and 06-16-00090-CR. The State did not deign to
file a brief in these cases.
3
See U.S. CONST. amend. VI.
2
evidence and to cross-examine witnesses under the Sixth Amendment does not conflict with the
corresponding rights under state evidentiary rules.” Hammer v. State, 296 S.W.3d 555, 561 (Tex.
Crim. App. 2009) (footnotes omitted). However, it must be noted that “trial judges retain wide
latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such
cross-examination based on concerns about, among other things, harassment, prejudice, confusion
of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.”
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). “[T]he Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20
(1985) (per curiam).
Complaints about limits on cross-examination usually arise in situations where one party
is alleging bias or an improper motive on the part of the witness. See, e.g., Davis v. Alaska, 415
U.S. 308 (1974); Irby v. State, 327 S.W.3d 138 (Tex. Crim. App. 2010); Greene v. State, 651
S.W.2d 948 (Tex. App.—Dallas 1983), aff’d, 676 S.W.2d 359 (Tex. Crim. App. 1984). Here,
Shine wanted to question Kelly about the offense alleged in the arrest warrant that Kelly had
prepared. After the trial court sustained the State’s objection to this line of questioning (on the
basis that Shine had not shown how such testimony was relevant and that the court thought “it
tends to confuse a jury in this case”), Shine made an offer of proof wherein Kelly said the arrest
warrants for the three offenses were “delivery warrants based on the hand-to-hand sales transaction
between” the cooperating individual working for law enforcement and Shine. However, when
Shine asked whether it was true that these arrest warrants contained no “allegations . . . of dealing
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with an organization combination,” Kelly answered, “Not -- not in the warrants. In the
investigation, yes.”
Shine has not explained how testimony from Kelly to the effect that Shine had initially
been arrested for delivery of methamphetamine is either relevant to Shine’s defense or that it shows
any bias or improper motive in Kelly’s testimony. Shine argues that the evidence of arrest for
manufacture of methamphetamine would show he was guilty only of the lesser offense of delivery
of a controlled substance and that this would counter evidence that Shine was guilty of engaging
in organized criminal activity. We do not find this argument convincing. Proof of delivery was
necessary to prove that Shine was engaging in organized criminal activity. In order for Shine to
show that there was an improper limitation of cross-examination, he must show that the excluded
testimony goes to the “heart of the defense.” Potier v. State, 68 S.W.3d 657, 664 (Tex. Crim. App.
2002) (quoting DePetris v. Kuykendall, 239 F.3d 1057, 1062–63 (9th Cir. 2001)). The charge
listed in the arrest warrant was not dispositive or critical to Shine’s defense: the charge shown on
the arrest warrant is not evidence that Shine only committed delivery; rather, the delivery is only
a part of the State’s proof that Shine was engaging in an organization or combination to commit
the crime of delivery of a controlled substance.
Exclusion of a defendant’s evidence (such as limiting cross-examination) amounts to
“constitutional error only if the evidence forms such a vital portion of the case that exclusion
effectively precludes the defendant from presenting a defense.” Id. at 665. Indeed, “not every
erroneous exclusion of a defendant’s evidence amounts to a constitutional violation.” Id. at 659.
The trial court has discretion to limit inappropriate cross-examination. Carroll v. State, 916
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S.W.2d 494, 498 (Tex. Crim. App. 1996) (citing Van Arsdall, 475 U.S. at 682). Additionally,
“[w]e review a trial court’s decision regarding the admissibility of evidence under an abuse of
discretion standard.” Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007).
We find the Potier case instructive here.4 In it, Potier was allowed to testify that two
months before he shot the victim, the victim had beaten, robbed, pistol-whipped, and attempted to
shoot Potier. He further testified (1) that “everybody was scared of the victim because he would
beat up on everybody, that he had seen the victim beat up two or three people, and that he had
heard about others,” (2) that Potier had received death threats and stayed at a hotel the night before
the shooting, and (3) that on the day of the shooting, “the victim cursed at him, told him he was
going to kill him, and started approaching him while reaching into his pants where the appellant
thought there was a gun.” Potier, 68 S.W.3d at 665. A police officer corroborated Potier’s
appearance and description of events after responding to the scene. Another witness, the victim’s
niece said that she dated Potier and had heard the victim tell Potier he would fight Potier if he
mistreated the niece, and that she had seen the victim give Potier “a pretty good whipping.” Id.
She further said the victim was angry because Potier “wanted to sell crack cocaine out of her
grandmother’s yard.” Id. Potier testified that he had been staying at a hotel the night before he
shot the victim because Potier was afraid of him and because he had been receiving death threats.
Potier “told the jury that when he encountered the victim that day, the victim cursed at him, told
4
To be clear, at issue in Potier was the standard of review for harm, not whether the excluded evidence should indeed
have been admitted. The Court of Criminal Appeals accepted the Court of Appeals’ finding that “the trial court had
erroneously excluded the evidence of the rumors in the community that were relayed to the appellant on the day of
the shooting . . . . ” Potier, 68 S.W.3d at 658.
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him he was going to kill him, and started approaching him while reaching into his pants where the
appellant thought there was a gun.” Id. At this point, Potier shot the victim.
Potier claimed error where the trial court did not allow him to present evidence that “‘the
whole neighborhood’ told him that the victim had come looking for him,” that one neighbor
specifically told Potier that “the victim had been looking for him and she had heard that the victim
was trying to kill him,” and that before the victim robbed Potier two months prior to the shooting,
a friend of Potier’s told him he would be robbed. He further complained that the trial court
restricted evidence of what the victim and his accomplices purportedly said during the robbery of
Potier and that one neighbor (possibly the same as that mentioned earlier) was not allowed to
testify that she had heard rumors that a person with the victim’s nickname “was looking for [Potier]
and wanted his money and was out to hurt [Potier].” Id. at 666.
The Texas Court of Criminal Appeals found that although the above “excluded evidence
was relevant to the defense of self-defense, . . . that . . . exclusion did not prevent [Potier] from
presenting a defense” and, therefore, “was not of constitutional dimension.” Id.
Here, we feel confident that the trial court’s exclusion of testimony from Kelly about the
content of the arrest warrant was within that court’s discretion to exclude. It is impossible for us
to perceive that testimony from Kelly that Shine was arrested for delivery of methamphetamine
(as opposed to arresting him for participation in organized criminal activity) would have aided
Shine in disproving his guilt of the charged offense. Rather, proof of Shine’s delivery of
methamphetamine was a necessary piece of the proof that he and his confederates had acted in
concert, in combination, or conspiracy to commit the offense of delivery of methamphetamine. In
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terms conducive to the analysis in Potier, the excluded evidence here did not effectively deny
Shine the ability to present a defense nor have a “drastic effect” on the jury’s verdict. Id. at 665.5
Further, the decision to indict Shine for engaging in organized criminal activity versus
delivery of methamphetamine rested with the State, not with Kelly.
Both Texas and federal courts recognize that prosecutors have broad discretion in
deciding which cases to prosecute. Thus, “[i]f the prosecutor has probable cause to
believe that the accused committed an offense defined by statute, the decision
whether to prosecute and what charge to file generally rests entirely within his or
her discretion.”
Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004) (quoting State v. Malone Serv. Co.,
829 S.W.2d 763, 769 (Tex. 1992) (Gonzalez, J., concurring)); see also Bordenkircher v. Hayes,
434 U.S. 357, 364 (1978) (“In our system, so long as the prosecutor has probable cause to believe
that the accused committed an offense defined by statute, the decision whether or not to prosecute,
and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”).
5
Cf. Rock v. Arkansas, 483 U.S. 44 (1987) (defendant denied right to testify where precluded from testifying to
hypnotically refreshed memories); Chambers v. Mississippi, 410 U.S. 284, 300 (1973) (defendant denied right to
present vital evidence where state evidentiary rule precluded cross-examination of witness called by defendant where
Chambers offered hearsay statements which were made “under circumstances that provided considerable assurance
of their reliability”); Ferguson v. Georgia, 365 U.S. 570 (1961) (Georgia retained “common-law rule that a person
charged with a criminal offense is incompetent to testify under oath in his own behalf at his trial.”).
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We find no abuse of discretion in the trial court’s mild limitation on Shine’s cross-
examination of Kelly. We affirm the trial court’s judgment and sentence.
Bailey C. Moseley
Justice
Date Submitted: September 22, 2016
Date Decided: October 18, 2016
Do Not Publish
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