Richard Efren Hignojos v. State

Opinion filed September 30, 2014
In The
Eleventh Court of Appeals
__________
No. 11-12-00264-CR
__________
RICHARD EFREN HIGNOJOS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 244th District Court
Ector County, Texas
Trial Court Cause No. C-38,608
MEMORANDUM OPINION
The jury convicted Richard Efren Hignojos of four counts of aggravated
assault with a deadly weapon and assessed his punishment at confinement for
sixteen years for each count. The trial court sentenced Appellant accordingly, and
it ordered that the sentences run concurrently. We reverse and remand.
After the trial had started, it was discovered that, during voir dire, a member
of the jury had failed to disclose his relationship with one of the witnesses.
Appellant moved for a mistrial, and the trial court denied that motion. In his first
point of error, Appellant asserts that the trial court thereby erred. Because we
agree with Appellant and because we cannot find that the error is harmless, there is
no need for us to reach other points that he has presented to us.
Although there is no challenge to the sufficiency of the evidence, we will
summarize the relevant testimony in order to provide context for Appellant’s first
point. The events out of which the charges in this case arose occurred at the home
of Adrian Nunez during a party complete with loud music, strobe lights, and glow
sticks and ultimately attended by some twenty-five people.
Nunez lived in a trailer just outside Odessa. At around 11:30 on the night
before the early morning assault took place, Appellant and his brother Sonny
Hignojos met some friends at the party at Nunez’s house. There were not many
people there, and after about an hour, Appellant, Sonny, and some of the friends
whom they had met there left and went to a different party. The second party
fizzled after about an hour, and Appellant, Sonny, and others who had gone there
with them left and returned to the party at Nunez’s house. Those who were with
Appellant when they returned to the party included Sonny, Bobby Herrera, Jacob
Garcia, Brianna Alvarado, and Savannah Evaro.
The testimony shows that several women decided to go to the party at
Nunez’s house. One of those women testified that there were some men outside
Nunez’s trailer when the women arrived. Apparently, the men were not welcome
at the party and were not happy about that. Another of the women said that the
men were upset because two girls that were with the men had been told to leave the
party. Yet another of the women testified that Nunez had told the entire group to
2
leave because the other women at the party did not want any of them there.
The evidence also is conflicting as to what happened next at Nunez’s trailer,
and it is difficult to tell who was where and who was doing what and when they
were doing it. Suffice it to say that an argument ensued and that at least some of
the people who were there with Appellant were asked to leave the party.
As they were leaving, someone closed the door to Nunez’s trailer before
Sonny was able to get outside. After Sonny had been left inside, Appellant went to
the door on the front porch. Cassandra Rivera was standing on one side of the
doorway, and Appellant was either on the other side of the doorway, in the
doorway, or just inside Nunez’s trailer. According to Appellant, Cassandra pushed
him into the hallway and “started swinging.” Cassandra hit Appellant on the left
side of his face, and Appellant hit her back. Appellant said that another woman,
Roxana Payan, was hitting him from the side and that, at that time, he heard a
gunshot to his right. Appellant said that he did not have a gun and that he did not
know of anyone who had a gun. Appellant testified that, as he and Cassandra were
fighting, he saw Cassandra get hit in the head and fall down, but he did not know
who hit Cassandra because he was still fighting Roxana. After the initial gunshot,
Nunez said, “[G]et out of here.” Appellant and some of the other people went to
their vehicles. As Appellant was getting in his vehicle, he heard more gunfire, and
he could still hear gunfire as he drove away.
Cassandra testified that someone hit her with a metal object but that she did
not know who hit her. Some witnesses testified that Appellant hit her with a
handgun. Other witnesses said that Appellant hit Cassandra with his fists. The
record contains testimony that Appellant fired a gun. Appellant and other
witnesses testified that he did not fire a gun that night. And yet another witness
testified that she did not see anyone with a gun and that she did not see the fight.
Leslie Olivarez and Savannah saw Sonny with a gun, but they did not testify that
3
they saw Sonny either with the gun inside the trailer or hit anyone with it. Bobby
testified that he did not see Appellant with a gun but that he saw Sonny hitting
people with a gun during the fight. Sonny told detectives that he was not even at
the party. Others testified that he was at the party. One witness testified that it was
Bobby who had the gun.
Four of the women at the party went to the emergency room. Two of them
had gunshot wounds, and the other two had suffered other injuries. All four of the
women were released by morning.
Mike Finnerty, a crime scene investigator for the Ector County Sheriff’s
Department, testified that he found five shell casings outside the trailer. Inside, he
found one fired round, three bullet fragments, and more than twenty-five bullet
holes. There was no evidence as to whether the rounds were fired from the same
gun or from different guns, and there was no testimony as to the total number of
rounds fired.
A jury was selected and seated, and the testimony began. After the State had
completed its case-in-chief, Appellant called various witnesses, including Bobby
Herrera. Bobby was the last witness called by the defense and the first witness of
that day. Prior to Bobby’s testimony, Bobby’s mother saw Juror Ramirez come in
with the jury. She told defense counsel about “a negative strained relationship”
between Juror Ramirez and Bobby. That is the relationship that Juror Ramirez had
not mentioned during the voir dire examination of the jury and that was the subject
of Appellant’s motion for mistrial.
When Appellant’s lawyer found out about the relationship, he told the trial
court about it. He informed the trial court that he was “[j]ust 100 percent sure[ ]
that one or both would have used a preemptory (sic) strike” even if the juror had
not revealed “any bias one way or the other.” The State suggested that the trial
court conduct a hearing to “inquire into that relationship.”
4
During a hearing outside the presence of the jury, the trial court informed
Juror Ramirez that they were aware of his relationship with Bobby, and the
following exchange occurred:
THE COURT: . . . . Mr. Ramirez have a seat, sir. We’ve called
you in here because it was brought to our attention that you may
know Bobby Herrera who is going to be called to testify.
JUROR RAMIREZ: Yes, sir, I know both of them, yes, sir.
THE COURT: Is there some reason you didn’t bring that to the
Court’s attention when you were asked by [the State] and [the
defense] during the voir dire?
JUROR RAMIREZ: I heard him say something about Bobby
was going to be there, but since I knew he was detained for
something - - some stuff he had done in the past, so, you know, I
said, well, I had no problem with that. I saw him walking this
morning over there and as he was walking he looked at me.
THE COURT: And you saw it was the same one?
JUROR RAMIREZ: Yeah. So I was - - that’s one of the
reasons, but, you know, I could be dismissed, you know.
THE COURT: Well, here is what I need to talk to you about - -
JUROR RAMIREZ: Yes, sir.
THE COURT: - - you remember my instructions that said do
not tell other jurors your own personal experiences nor those of other
persons nor relate any special information?
JUROR RAMIREZ: Yes, sir.
THE COURT: Also, a juror may have special knowledge of
matters - - in this case, you may know - - know a witness or you may
know what has happened in this or some other case, to tell the other
5
jurors of this information would be a violation of these instructions.
You understand that?
JUROR RAMIREZ: Yes, sir.
THE COURT: Now, do you believe that you can sit on the jury
and listen to the testimony of Mr. Herrera and make - - still be a fair
and impartial juror and make your decision when you go back to
deliberate based upon the evidence that was presented here in the
courtroom during the course of this trial?
JUROR RAMIREZ: Yes, sir.
THE COURT: You don’t think you’ll have any problem with
that?
JUROR RAMIREZ: No, sir. No
THE COURT: Very well. Then I think we will proceed with
the trial.
[DEFENSE COUNSEL]: May I ask him some questions,
Judge, even based on - - for purposes of the record?
THE COURT: I think the record is pretty clear. Approach the
bench. Mr. Ramirez, go ahead and have a seat in the jury box right
now, just right up there.
(At Bench, discussion on the record)
[DFENSE COUNSEL]: I haven’t had this come up very often
over the years, but I think it’s important for me to be able to ask him
questions about if he would have been asked a question earlier, would
he have raised his hand to say that he might have some problems with
one of the witnesses, go ahead and get him through just a couple of
questions into, is there a bad relationship between him and that
person, has he said he never wants to see that person again, that
person being Bobby Herrera, so that I can make a motion based on
what he - - he may say nothing, but he may say something that would
6
cause me to make a motion for mistrial that the Court would have to
rule on.
Given the facts that we know - - that I know from my side, so I
would like to be able to ask him, just like you would do if someone
approached and said, Judge, I’ve got this problem, and you would ask
if either one of us had questions.
THE COURT: I’ll ask the questions.
(Open court . . .)
THE COURT: You may just keep your seat there, Mr. Ramirez.
Have you had any type of relationship with Mr. Herrera in the past
five years?
JUROR RAMIREZ: No, sir.
THE COURT: Social or any other?
JUROR RAMIREZ: No, I just - - I mean, nothing verbal or
anything.
THE COURT: All right. And is there anything about him that
would cause you difficulty in serving as juror and completing your
service on this case?
JUROR RAMIREZ: Well, I don’t - - I don’t think it would
jeopardize anything, you know, between my wife and him, you know,
because I hardly know him, you know, I don’t - - it’s not somebody I
communicate, you know, constantly, you know. I’ve just known him
because he’s related to my wife, but that’s all, you know - -
THE COURT: All right.
JUROR RAMIREZ: - - not been in contact or anything.
THE COURT: So thinking of that and thinking of your history
with him and your family, is there anything that you could think of
7
that would affect your ability to sit in this case and follow these
instructions that I’ve given to you now twice, that is to consider the
evidence and make your decision based upon the evidence presented
in the court - -
JUROR RAMIREZ: Right.
THE COURT: Can you do that?
JUROR RAMIREZ: Yes, sir.
[DEFENSE COUNSEL]: For the record, we would ask the
Court to specifically ask him if there’s any concern, whatsoever,
No. 1, is there any concern, whatsoever, about the impact on the
relationship with his wife, after all, he’s the uncle, and No. 2, if there
was ever a situation where he stated to members of Bobby Herrera’s
family that he did not want Bobby to be around them - around his
family at all because of what Bobby has gotten into, obviously, Bobby
is in prison and has violated the law and been found guilty either by
guilty plea or by verdict, I would ask the Court to ask those two
questions.
THE COURT: I think Mr. Ramirez has already indicated that
he’s already related to the Court about the family, about the - - he’s
already addressed the issue about his wife, said that that’s not going to
affect his ability to serve as a fair juror and to follow the rules.
You are satisfied - - again, you’ve heard [defense counsel], are
you satisfied that there’s nothing out there in your history with this
man or his history with your family or him, whatever the family
relationship is, anything, is there anything out there that would affect
your ability to receive his testimony, give it - - make your evaluation
of his testimony applying - - giving the value and weight, whatever it
may deserve, just like you are going to give value and weight to the
testimony of any other witness and then go back and deliberate and
make a decision, can you do that?
JUROR RAMIREZ: Yes.
THE COURT: Is there anything out there that gives you
8
concern?
JUROR RAMIREZ: No, I’m just an uncle, you know, on my
wife’s side, but other than that, I don’t have no contact with - - no
communication with him, whatsoever.
THE COURT: Very well. All right. Well, we needed to ask
you these questions, Mr. Ramirez, before we proceeded because we
want to make sure that the jury members can be fair to both sides and
can receive and be fair and consider all the evidence that’s presented,
every bit, so that’s all we would ask of you.
JUROR RAMIREZ: I can be a fair juror.
THE COURT: Very well, then, Mr. Ramirez may return to the
jury room with the remainder of the jury panel (emphasis added).
Appellant then moved for a mistrial, and the trial court denied it. The trial court
said, “[T]here’s nothing about his relationship with Mr. Herrera that would affect
his ability to be fair to both sides.” 1
We review a trial court’s denial of a motion for mistrial for an abuse of
discretion. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). When
we review a ruling for an abuse of discretion, we do not substitute our judgment
for that of the trial court but, rather, decide whether its decision was arbitrary or
unreasonable. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012).
A trial court abuses its discretion when “no reasonable view of the record could
support its ruling.” Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App.
2013).
The Sixth Amendment guarantees the right to a trial before an impartial jury.
That right includes the ability to conduct “an adequate voir dire to identify
1The sole alternate juror who was selected in this case had already replaced a different
juror who was determined on the first day of trial to be disqualified. Therefore, the remedy
available to Appellant was a mistrial.
9
unqualified jurors.” Morgan v. Illinois, 504 U.S. 719, 729 (1992); see also U.S.
CONST. amend. VI. Essential to the Sixth Amendment guarantee to a trial before
an impartial jury is the right to question members of the venire so that the parties
can intelligently exercise peremptory challenges as well as challenges for cause.
Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004) (Franklin II).
“The voir dire process is designed to insure, to the fullest extent possible,
that an intelligent, alert, disinterested[,] and impartial jury will perform the duty
assigned to it.” Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. 1978); see
also TEX. CONST. art. I, § 10 (“In all criminal prosecutions the accused shall have a
speedy public trial by an impartial jury.”). Both parties have a right to question the
jury panel to expose bias in order to intelligently exercise peremptory strikes. If a
potential juror withholds information that is material, the parties’ exercise of
challenges and peremptory strikes is hampered. Franklin v. State, 12 S.W.3d 473,
477–78 (Tex. Crim. App. 2000) (Franklin I).
To establish error, “the defendant must show that the juror withheld material
information during voir dire” and that it was withheld “despite due diligence
exercised by the defendant.” Franklin II, 138 S.W.3d at 355–56. The withheld
information is material if the nature of the relationship reveals a potential for bias
or prejudice. See Decker v. State, 717 S.W.2d 903, 907 (Tex. Crim. App. 1986).
The accused does not have to establish “that the concealed information show[s]
actual bias; just that it has a tendency to show bias.” Franklin II, 138 S.W.3d at
356. Bias is “an inclination toward one side of an issue rather than to the other,”
that supports a “natural inference” that the juror will not act impartially. Anderson
v. State, 633 S.W.2d 851, 853 (Tex. Crim. App. [Panel Op.] 1982) (quoting
Compton v Henrie, 364 S.W.2d 179, 182 (Tex. 1963)). Prejudice is prejudgment.
Id.
10
In Franklin, a sexual assault of a child case, a juror did not recognize the
child victim’s name when it was mentioned during voir dire. However, during trial
the juror recognized the child’s face when the child took the stand. Franklin I, 12
S.W.3d at 476. The juror was the assistant leader of the child’s Girl Scout troop,
and the juror’s daughter was also in that troop. Id. The juror told the trial court
that she could base her judgment solely on what she heard in court. Nevertheless,
the defendant moved for a mistrial. He argued that he would have exercised a
peremptory strike if the juror had disclosed the relationship during voir dire. Id.
The trial court refused to allow the defendant to question the juror about her
relationship with the victim. Id. The defendant objected and told the trial court
that he would have asked about the nature of the relationship, how long it lasted,
whether the juror “could set aside any of her relationship,” and “whether she would
tend to give more credence or less credence to [the child]’s testimony and
truthfulness due to that relationship.” Id. (emphasis omitted).
Ultimately, the case reached the Court of Criminal Appeals. That court
wrote that the fact that a juror “had a relationship with the victim, one that many
people would consider almost a parental role, certainly has a tendency to show
bias.” Franklin II, 138 S.W.3d at 356. The defendant “was not permitted to
determine the extent of the relationship between [the victim] and [the juror] due to
no fault of his own” because the juror had not responded during voir dire when
asked if anyone knew the victim. Franklin I, 12 S.W.3d at 478. The defendant
had acted on the answers given to him during voir dire and was thus deprived of
the opportunity to exercise a challenge for cause or to use a peremptory strike. Id.
Although the juror said that she could be fair and impartial, that fact is not
dispositive of the issue if the information is material and likely to affect the juror’s
verdict. Id. The trial court prevented the accused from exploring the nature of the
11
juror’s relationship with the victim. Id. Because the accused was deprived of the
opportunity to question the juror both during voir dire and during trial to determine
the nature of the relationship, the court could not conclude that the juror’s
relationship with the victim “was immaterial to the appellant’s questioning of [the
juror] or appellant’s use of peremptory strikes.” Id. at 478–79.
Here, the State asked the venire if anyone recognized Appellant or the
defense attorneys and then the State told the venire that it had “quite a few
witnesses.” The prosecutor asked the panel members whether they knew anyone
from a list of witnesses that he called out. He explained, “If you see a familiar
name or something, let me know, we’ll talk about it so we can go through it.”
When the prosecutor called out the name, “Bobby Herrera,” Veniremember
Morales indicated that he might know Bobby. Juror Ramirez said nothing. After
Morales acknowledged that he might know Bobby, the following exchange
occurred:
JUROR MORALES: Bobby Herrera, I know two, the junior
and senior also, I don’t know if it’s the same one, though.
[THE PROSECUTOR]: It might be. How old is the junior?
JUROR MORALES: Junior is about 21.
[THE PROSECUTOR]: From here?
JUROR MORALES: Yeah.
[THE PROSECUTOR]: It might be. Again, come up
afterwards and we’ll talk about that, okay? If you knew them, if that
was the person and he was in trial today in front of you, would you lend
to believe him over someone else you didn’t know or could you follow
the law and be neutral and take his opinions, his ideas and his
observations just like everyone else?
JUROR MORALES: I could follow it.
12
The trial court dismissed the panel at the close of voir dire so that the parties
could exercise the strikes. Five jurors remained to discuss various issues. When
Veniremember Morales informed the court about a serious medical issue, both
parties moved to strike him for cause without questioning him about the nature of
his relationship with Bobby. There is no evidence in the record that Juror Ramirez
ever indicated that he knew Bobby or that he was related to him by marriage.
Thus, Appellant was not able to determine whether a relationship existed between
Juror Ramirez and Bobby, much less discover the nature of that relationship. That
was through no fault of his own, and he was deprived of the opportunity to use a
peremptory strike or potentially even to challenge Juror Ramirez for cause. See id.
at 478. We fail to see how Appellant could have been more diligent.
The State acknowledges that, during voir dire, Juror Ramirez failed to
disclose his relationship with a witness, but it seems to contend that questioning
the juror once the relationship was discovered was sufficient to establish that Juror
Ramirez was not biased and, therefore, that the withheld information was not
material. The State argues that this case is distinguishable from Franklin because
the trial court held a hearing in this case and “cover[ed] the topics defense counsel
identified.” According to the State, “[t]he allegations of relationship bias, which
originated from off-the-record remarks from somebody’s mother, were nothing
more than speculation.”
While the trial court did conduct a hearing, we disagree with the State that
the trial court “cover[ed] the topics defense counsel identified” because it did not
allow Appellant to explore Juror Ramirez’s relationship with Bobby. The “off-the-
record remarks” from Bobby’s mother were offered to show that Juror Ramirez
failed to disclose during the voir dire process a potentially strained familial
relationship with a defense witness and to support Appellant’s request for a hearing
13
to determine the nature and extent of that relationship. During that hearing, the
trial court merely asked whether Juror Ramirez had any type of relationship with
Bobby within the last five years and, generally, whether there was “anything about
him” or “anything out there” that would affect his ability to be fair and impartial.
The fact that he had no contact with a family member during the last five years
lends some support to the purported strained relationship. Defense counsel
specifically asked the trial court to ask Juror Ramirez “if there was ever a situation
where he stated to members of Bobby Herrera’s family that he did not want Bobby
to be around them–around his family at all because of what Bobby has gotten
into.” However, the trial court simply said, “you’ve heard, [defense counsel]” and
asked “are you satisfied that there’s nothing out there in your history . . . whatever
the family relationship is, anything, is there anything out there that would affect
your ability to receive his testimony?” If the trial court had asked Appellant’s
proposed questions, the “off-the-record remarks” would no longer have been
speculative.
Regardless of whether Juror Ramirez had interacted with Bobby in the five
years before trial, the record establishes that Juror Ramirez’s wife and Bobby’s
mother were sisters. Although a juror’s familiarity with a witness is not always
material, when a prospective juror reveals an acquaintance with or a relation to a
witness during voir dire, that places the parties on notice of an existing relationship
and permits counsel to ask questions to determine the nature of that relationship.
See Decker, 717 S.W.2d at 905. Here, Appellant was not permitted to explore the
nature and extent of Juror Ramirez’s relationship with Bobby either during voir
dire or after the relationship was discovered.
Under these circumstances, we cannot conclude that the relationship
between Juror Ramirez and Bobby was immaterial to Appellant’s ability to
question Juror Ramirez or to intelligently exercise peremptory strikes. Therefore,
14
we must conclude that the trial court erred when it neither asked Appellant’s
proposed questions nor allowed Appellant to ask the questions. We also hold that
the information withheld from Appellant by Juror Ramirez was material. See id.
Having concluded that Juror Ramirez withheld material information during
voir dire, we must reverse Appellant’s conviction unless we determine beyond a
reasonable doubt that the error did not contribute to the conviction or the
punishment. TEX. R. APP. P. 44.2(a); see also Franklin II, 138 S.W.3d at 358.
Rather than focusing on the propriety of the outcome of the trial, we must
“calculate as much as possible the probable impact of the error on the jury in light
of the existence of other evidence.” Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.
Crim. App. 2000). We must “take into account any and every circumstance
apparent in the record that logically informs an appellate determination whether
‘beyond a reasonable doubt [that particular] error did not contribute to the
conviction or punishment.’” Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim.
App. 2011) (quoting TEX. R. APP. P. 44.2(a)) (alteration in original). “If an
appellate court rules that an error is harmless, it is in essence asserting that the
nature of the error is such that it could not have affected the jury.” Wesbrook, 29
S.W.3d at 119.
The State argues that any error was harmless because “the record was
sufficiently developed to show that the challenged juror . . . could deliberate the
case free from bias.” As discussed above, the trial court prevented Appellant from
exploring the specifics of the juror’s relationship with the witness, so we cannot
determine that Juror Ramirez was free from bias. While Juror Ramirez said that he
could be impartial, this is only one factor because a juror who claims “that the fact
that he withheld information will not affect his verdict is not dispositive of the
issue where the information is material and therefore likely to affect the juror’s
verdict.” Franklin II, 138 S.W.3d at 354–55 (quoting Salazar, 562 S.W.2d at 482).
15
In other cases where a juror failed to disclose a relationship to a witness or a
party, such error was found to be harmless where the defense affirmatively waived
the opportunity to question the juror once the withheld information was discovered
or where there was no claim that the defense would have exercised a peremptory
strike differently if the information had been disclosed during voir dire. See, e.g.,
Sypert v. State, 196 S.W.3d 896, 902–03 (Tex. App.—Texarkana 2006, pet. ref’d).
In this case, Appellant argued that if he or the State had been aware of the
relationship between Bobby and Juror Ramirez, he was “100 percent sure[ ] that
one or both would have used a peremptory strike” even if the juror had not
revealed “any bias one way or the other.” Appellant asked the trial court to inquire
into the “strained” nature of the relationship and specifically about a conversation
in which Juror Ramirez was purported to have said that he did not want Bobby
around his family, but the trial court only inquired into whether Juror Ramirez had
a relationship with Bobby in the last five years.
We recognize that Juror Ramirez stated several times that he could be fair
and impartial regardless of his relationship and past with Bobby. “We have been
warned, however, that a juror’s bald statement in regard to a willingness to be fair
is not dispositive of the issue where the information is material.” Franklin v. State,
23 S.W.3d 81, 83 (Tex. App.—Texarkana 2000), aff’d, 138 S.W.3d 351 (Tex.
2004). Because the trial court refused to ask or allow Appellant to ask Appellant’s
proposed questions, we do not know the nature and extent of Juror Ramirez’s
relationship with Bobby and cannot determine the extent of prejudice that might
have existed.
The State contends that any alleged error was harmless because Bobby’s
“purportedly exculpatory testimony was cumulative” of both Appellant’s and
Brianna Alvarado’s testimony. Appellant testified that he did not have or use a
16
gun that night, that he hit Cassandra in the face with his fists in self-defense, and
that he did not see anyone possess or fire a gun that night. Brianna testified that
she did not see anyone with a gun, including Appellant, and that she did not see the
fight. Bobby told the jury that Appellant did not have a gun that night, but he also
testified that he saw Sonny with a gun and that he saw Sonny hitting people with
the gun during the fight. Although Savannah told Detective Bass that she saw
Sonny get a gun from his vehicle during the altercation, she was not present during
the fight. Neither Appellant nor Brianna testified that Sonny used a gun. In fact,
the prosecutor directly asked Appellant if it was his testimony that Sonny was the
shooter, and Appellant said, “No, sir, it’s not.” Thus, Bobby’s testimony is not
cumulative of Appellant’s and Brianna’s testimony.
During closing arguments, defense counsel told the jury that Bobby’s
testimony was “the most important” of all the evidence it heard. The majority of
Appellant’s closing argument focused on why the jury should believe Bobby’s
testimony. Because he was the only witness who testified that he saw Sonny
committing the offenses for which Appellant was on trial, Bobby’s credibility was
crucial to Appellant’s case.
Because Bobby’s credibility was vital to Appellant’s defense, because
Bobby’s testimony was not cumulative of other defense witnesses, and because the
trial court did not allow an inquiry into the specific nature of the relationship and
whether it was strained, we cannot conclude beyond a reasonable doubt that the
failure to disclose the relationship did not contribute to the convictions.
Appellant’s first issue is sustained. In light of our ruling on Appellant’s first issue,
we need not address Appellant’s second and third issues. See TEX. R. APP. P. 47.1.
17
We reverse the judgments of the trial court and remand this cause to the trial
court for a new trial.
JIM R. WRIGHT
CHIEF JUSTICE
September 30, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
18