### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00557-CR

Edwin Delamora, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT

NO. 9024117, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING

O P I N I O N

Appellant Edwin Delamora appeals his capital murder conviction for murdering a

peace officer “who is acting in the lawful discharge of an official duty and who the person knows

is a peace officer.” Tex. Pen. Code Ann. § 19.03(a)(1) (West 2003). The jury found appellant guilty

of capital murder as alleged. The State did not seek the death penalty. The automatic penalty was

life imprisonment. Tex. Pen. Code Ann. § 12.31(a) (West 2003). The trial court assessed a life

sentence.

Points of Error

Appellant advances four points of error. First, appellant contends that the trial court

erred in overruling the moti on for new trial based on newly discovered evidence material to2

appellant’s guilt of capital murde r. Second, appellant urges that he was denied the effective

assistance of trial counsel who failed to investigate and produce evidence at trial that the deceased,

Keith Ruiz, was not a peace officer acting in the discharge of an official duty. Third and fourth,

appellant claims that the trial court er red in limiting the cross-examination of Deputy Sheriffs

Richard Hale and Billy Poole regarding their relationship with a confidential informant.

Facts

Appellant does not challenge the legal or factual sufficiency of the evide nce to sustain

his capital murder conviction. The background and facts are pertinent to the points of error. We

shall review the applicable facts.

The offense grew out of the execution of a narcotics search warrant at appellant’s

mobile home in a trailer park in the Del Valle area of Travis County on the evening of February 15,

2001. Law enforcement officers of the Capital Area Narcotics Task Force were called upon to

execute the search warrant in question. Knowing that trailer home doors open outwards and are hard

to breach when necessary, the officers called upon Deputy Sheriff Keit h Ruiz, the deceased, and

Deputy Sheriff Derek Hill to assist. Both Ruiz and Hill were members of the Travis County

Sheriff’s Swat Team. They had specialized training in breaching doors that opened outwards. Ruiz

had been a deputy sheriff for thirteen years and a member of the Swat team for seven years.

At a briefing at 7:30 p.m. on February 15, 2001, Investigator Billy Poole discussed

the details of the assignment with the officers involved. At approximately 9:30 p.m. that evening,

the officers approached appellant’s mobile home wearing black battle dress uniforms with the word1 The exception was Deputy Sheriff Teague who left his insignia on another vest.

3 “Sheriff” emblazoned on them. 1 All the officers had their weapons drawn except deputies Hill and

Ruiz, who carried tools to be used in breaching the trailer door.

The officers took their assigned positions. Deputy Ruiz stationed himself on the stairs

leading to the trailer house door. Deputy Hill banged or knocked loudly on the side of the trailer

three times, and yelled “Police, search warrant.” No noise from inside the trailer was heard. After

three to five seconds, Hill took a ram and swung it at the trailer door just below the doorknob. Ruiz

began to pry on the door with a “hooligan tool.” The officers still heard no sound from within the

trailer house. Deputy Craig Smith yelled, “Police, search warrant” several times and Investigator

Poole followed up in Spanish with “Policia.”

Hill again used the ram on the door, and Ruiz tried a second time to pop the door

open with the hooligan tool. At this point, the whole process had consumed from twenty seconds

to several minutes. As Ruiz began his third attempt to open the door, a window of the trailer house

s hattered. Some officers saw a hand sticking through the broken window, holding a pistol which

was pointed downwards. Some officers saw a flash of bright light and heard the sound of a gunshot.

Ruiz fell off the steps to the trailer. Detective Cyril Friday and other officers yelled, “shots fired.”

Deputy Craig Smith returned fire toward the trailer to cover the team.

Ruiz was dragged to safety and some officers began to administer aid. Other officers

yelled to the occupants of the trailer house to come out. Appellant Delamora emerged wearing only

white boxer shorts. His right hand was bleeding from a gunshot wound. Appellant’s wife and two

children followed appellant out of the house.4 A se arch of the trailer house revealed a storage box under the sink in a bedroom

containing a small scale and methamphetami ne [speed] and marihuana divided up into numerous

small plastic bags.

An emergency medical team arrived and began to treat both Ruiz and appellant.

Lieutenant Paul Barrientos of the Setco Volunteer Fire Department served with the emergency

medical treatment team. Upon his arrival at the scene, Barrientos was assigned to treat appellant’s

wound. After Barrientos treated and wrapped appellant’s hand with gauze, he testified that

appellant:

Just kept just hollering and saying that he had—he knew what he had done. He had

just shot a cop and that he hoped—why was everyone attending to that cop and why

nobody was attending him, doing an y type of medical treatment because he was

hurting, his hand was hurting, his hand was hurting and why everybody attending to

the cop. And then said, that well, I hope that the son-of-a-bitch motherfucker dies

because I’m glad he was there.

The record then reflects:

Q. Did he [appellant] ever make any statement to you with regard to whether or not

he knew when he shot that those individuals outside were police officers?

A. Yes, ma’am, he said that they were cops.

Barrientos also testified that appellant began shouting in English to a woman,

a pparently appellant’s wife, for her not to worry, to call Dad, and “Dad will take care of it.”

Barrientos did not believe that appellant had any difficulty understanding the English language.5 It appears that Kristi Delamora, appellant’s wife, made a 911 telephone call after the

shots were fired. The 911 tape and an enhanced version was introduced into evidence. Investigator

Poole testified as to what he heard on the 911 tape. The first thing heard on the tape was Mrs.

Delamora saying, “No, Edwin!” Apparently concerned for the safety of her family, Mrs. Delamora

never told the operators that there was a burglary or robbery in process or that she was being attacked

and wanted the assistance of the police. On the tape, Poole heard his own voice yelling in Spanish

“Abre la puerta” (“Open the door”). He heard other officers yelling in English. At one point in the

recording, a male voice stated: “Let me get my heater” (slang meaning gun). After Mrs. Delamora

left the trailer, Poole attempted to speak in Spanish, but she requested that he speak in English as she

did not fully understand Spanish.

Andrew Hartman, a Travis County jail inmate, was in the jail with appellant in late

September 2001. Appellant told Hartman that he knew before he fired the gun that the people

outside the trailer

were police officers. Appellant also told Hartman that he heard sounds outside

the trailer, saw the police, and tried to get rid of the dope he had—which was approximately a pound

of methamphetamine. Hartman did not learn whether appellant had been able to dispose of the

“dope.” Appellant first told Hartman that he fired his weapon out of the door, but sometime later

stated that he had fired out of a window at the officers, shooting downwards.

Ruiz was shot in the left upper arm with a nine millimeter Smith and Weston pistol.

The bullet entered Ruiz’s uniform only one and a half centimeters from the patch that read “Sheriff,

Travis County” and “SWAT.” The bullet traveled sharply downward through Ruiz’s chest, hit both2 Calvin Story, a ballistic expert, testified that ballistic tests showed that the lead core

(insides of a projectile) recovered from Ruiz’s body at the time of the autopsy was consistent with

having been fired from a nine-millimeter Smith and Weston pistol, but he was unable to say it was

fired from appellant’s nine-millimeter Smith and Weston pistol. A bullet found on the steps of the

house was also consistent with having been fired with the same type of weapon. Story was positive

that the lead core in Ruiz’s body had not been fired from a Colt AR 15 weapon such as used by

Deputy Craig Smith in returning fire. Smith was the only peace officer to fire his weapon.

6 lungs, pierced his aorta, and lodged in his twelfth vertebra. The medical examiner ruled that the

gunshot wound of the chest causing the large rupture of the aorta was the cause of death.

As appellant’s brief

points out, appellant at trial sought to show that the law

enforcement officers failed to follow proper procedure in c onducting “a dynamic entry” into

appellant’s h ome; and that the post-shooting investigation “was done poorly.” The defense also

advanced the theory that Ruiz had been shot by friendly fire and not by appellant; that the friendly

fire resulted when a “raid” team member returned fire. 2 Appellant also challenged two “raid” team

members’ credibility by showing a personal relationship between them and a confidential informant,

who had two brothers employed by the Travis County Sheriff.

At the conclusion of the evidence at the g uilt/innocence stage of the trial, the trial

court submitted the issue of capital murder to the jury as alleged in count one of the indictment, as

well as the offenses of aggravated assault upon a public servant as alleged in count two of the

indictment, and the offenses of murder as alleged in three paragraphs of count three of the

indictment. Various issues of self-defense and defense of a third person were also submitted. The

jury found appellant guilty of count I beyond a reasonable doubt and rejected all defenses.7 Motion for New Trial

The first complaint that appellant urges is that the trial court erred in denying his

motion for new trial. After sentencing, appellant’s newly appointed counsel on appeal filed a motion

for new trial based solely on newly discovered evidence. S ee Tex. Code Crim. Proc. Ann. art.

40.001 (West Supp. 2004). The motion alleged, i nter alia , that trial counsel discovered only after

sentencing that Ruiz was not acting in the lawful discharge of an official duty on the night of his

death as required by section 19.03(a)(1) of the Penal Code because he had not complied with article

XVI, section 1 of the Texas Constitu tion and Texas Local Government Code section 85.003 by

failing to take an oath of office and an anti-bribery oath and file the same with the Secretary of State

and the Travis County Clerk. Tex. Const. art. XVI, § 1; Tex. Loc. Govt Ann. § 85.003 (West 1999).

The Hearing

At the hearing on the motion for new trial, the only witness was Leonard Martinez,

appellant’s trial counsel, whose affidavit was attached to the motion. Martinez testified that he had

practiced law in Texas for twenty-one years, and had handled thousands of felony cases, including

a hundred or mor e homicide cases, and at least fifteen capital murder cases. There had been jury

trials in numerous homicide cases and in two capital murder cases. Martinez confessed that he had

never heard of the requirements of taking and filing of an oath by a public official as required by

article XVI, section 1 of the state constitution. He never had an opportunity to look at the provisions

of section 85.003 of the Local Government Code regarding oaths. Being unaware of these

provisions, during preparation for trial, Martinez stated: “I just took it for granted that if he (Ruiz)3 See Brady v. Maryland , 373 U.S. 83 (1963).

4 At the hearing on the motion for new trial, the trial court stated that it had examined in

camera the documents furnished; that at Martinez’s request it particularly examined the records for

two other incidents in which the Sheriff’s department had executed a search warrant. The trial court

did not r ecall seeing any documents “regarding the deputizing of Deputy Ruiz.” The in camera

documents in the appellate record support the trial court’s memory.

8 was employed as a sheriff’s deputy by the sheriff, that was kosher, that he was licensed as a peace

officer.”

Ma rtinez related that he filed several formal “Brady” motions, 3 issued subpoenas, and

made open-records requests of the Sheriff’s office for complaints against and disciplinary records

of officers on the team that executed the search warrant. Counsel acknowledged that the State had

a “pretty open” file on the instant case and he was given “Brady” material. Martinez claimed that

he was not given any information on Ruiz’s fail ure to take or file an oath of office prior to the

incident in which Ruiz lost his life.

Martinez stated that he subpoenaed personnel records but the county attorney filed

a motion to quash, and that he was told personnel information on team members had been provided

to the trial judge for an in-camera inspection. He added “and since nothing was discovered, I just

assumed there was nothing in them.” 4

The County Attorney also provided access to the employment records of all the

officers of the team. Martinez related that this offer was made during trial and he was to examine

the records between 8 a.m. and 5 p.m., and b ecause of the trial he was unable to comply with the

time limitations. The hearing does not reveal that Martinez asked the County Attorney to extend the

time period nor was the trial court requested to grant relief in some form. Further, Martinez did not9

explain why appellant’s two additi onal counsel or his investigator could not have examined the

records involved.

Martinez complained at the hearing that the Texas Attorney General did not rule on

his open-records requests until after the trial. The requests involving employment history material

listed certain individuals but omitted Ruiz’s name. Moreover, the requests did not specifically

mention Ruiz’s employment record or records having to do with oath-taking by any individual or

officers. There was no showing that Martinez or any other member of appellant’s defense team ever

checked in the county clerk’s office for the list of appointed deputy sheriffs required to be posted

there in a conspicuous place. S ee Tex. Local Gov’t Code Ann. § 85.003(b) (West 1999). This may

be due in some measure to the fact that Martinez testified that he was unaware of the constitutional

and statutory provisions as to oathtaking until he was “tipped” four days after sentencing that Ruiz

may not have filed any oath, if taken.

Martinez als o testified that if he had been timely given the information, he would

have tried to get the capital murder offense red u ced to murder although that “would have been

extremely difficult.” He stated that he would have filed certain pretrial motions, sought a jury charge

on the lesser-included offense, and raised the issue that Ruiz was not acting, at the time of his death,

in the lawful discharge of an official duty. Martinez insisted that it was not a part of his trial strategy

to fail to bring forward noncompliance with the named constitutional and statutory provisions.

Martinez felt that the outcome of the trial would have been differ ent if the information had been

made available to him.10 After Martinez’s testimony, appellant’s counsel asked the trial court to take judicial

notice of all the court’s records in the instant case. Counsel then offered, without objection,

defendant’s exhibit number one (for the hearing on the new trial motion) showing a certificate from

the Texas Secretary of State that a search of the records revealed a filing for Keith Ruiz as Deputy

Sheriff of Travis County dated January 2, 1997. Defendant’s exhibit number two certified that the

attached document was a true and correct copy of the appointment of Keith Ruiz as a deputy sheriff

dated January 2, 1997, on file with the Secretary of State. Appellant’s appellate counsel also offered

defendant’s exhibit number four, a certified copy from the county clerk’s office of the deputation of

Keith Ruiz dated Jan uary 9, 1997, and an oath of office dated January 2, 1997. There was no

objection to these exhibits. Defense exhibit number thirteen, an affidavit from a deputy county clerk

dated September 20, 2002 , was admitted over objection. The affidavit listed names of nine

individuals including Ruiz’s. It then simply stated: “The records presented are all the Deputations

and Oaths fou nd on the above persons.” There was nothing attached to show the “records

presented.” The court reporter’s notes then reflect:

MS. ICENHAUER-RAMIREZ

(defense counsel on appeal): Judge, we also have asked the court, are asking

the court to take judicial notice of the fact that

Sheriff Margo Frasier was initially elected in

general election in November 5th, 1996. I have

records from the Travis County website election

returns if the court would like to view these and

that she took her initial oath on January 1, 1997.

THE COURT: Any objection from the state?

MS. CASNER: No, Your Honor.11

THE COURT: Court will take judicial notice of the fact that

Sheriff Frasier was elected November 7th—I’m

sorry.

MS. ICENHAUER-RAMIREZ: The fir st one, Judge, she was initially elected

into office November

5, 1996 and was sworn

into office January 1, 1997.

THE COURT: The court will take judicial notice that Sheriff

Margo Frasier was first elected on November

5th of 1996 and her second election that she was

elected is November 7th of 2000 and that she

assumed her duties on January 1st of 199 7. I

assume that she was sworn in as the sheriff of

Travis County.

MS. ICENHAUER-RAMIREZ: Right.

THE COURT: Okay. Anything else?

MS. ICENHAUER-RAMIREZ: That’s all the evidence we have, Judge.

The State offered no evidence. After hearing argument, the trial court denied the

motion for new trial.

Newly Discovered Evidence

In his first point of error, appellant claims that the trial court erred in overruling the

motion for new trial when appellant showed the existence of newly discovered evidence material to

the question of appellant’s guilt of capital murder.

Article 40.001 provides that:

A new trial shall be granted an accused where material evidence favorable to the

accused has been discovered since trial.5 For a history of the forerunners of article 40.001 of the Texas Code of Criminal Procedure,

former Texas Rule of Appellate Procedure 30(b)(6) (West 1992) and former code article 40.03, and

the four-part test, see 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice

and Procedure § 41.41 (2d ed. 2001); Keeter v. State

, 74 S.W.3d 31, 36-37 (Tex. Crim. App. 2002).

The earlier test also set forth four requirements before a defendant was entitled to a new trial based

on newly discovered evidence: (1) the evidence must have been unknown to the movant before trial;

(2 ) the defendant’s failure to discover it was not due to a want of diligence on his part; (3) its

materiality was such as would probably bring about a different result in another trial; and (4) it was

competent, not merely cumulative, corroborative, collateral, or impeaching. S ee Drew v. State

, 743

S.W.2d 207, 226 (Tex. Crim. App. 1987); Boyett v. State , 692 S.W.2d 512, 516 (Tex. Crim. App.

1985); see also Moore v. State , 882 S.W.2d 844, 849 (Tex. Crim. App. 1994); Jones v. State

, 711

S.W.2d 35, 36-37 (Tex. Crim. App. 1986); Bolden v. S tate , 634 S.W.2d 710, 711-12 (Tex. Crim.

App. 1982).

With the passage of article 40.001, the L egislature clarified our rule by

explicitly stating a materiality requirement. The only difference between the new

statute and our former rule appears to be that the [new] statute expressly requires

the discovered evidence to be “material” while the word “material” was omitted

from the rule.

Keeter , 74 S.W.3d at 36.

12 Tex. Code Crim. Proc. Ann. art. 40.001 (West Supp. 2004).

There is a four-part test under this statute. A defendant is entitled to have his motion

for new trial granted if (1) the newly discovered evidence was unknown to him at the time of the

trial; (2) his failure to disco ver the new evidence was not due to the lack of due diligence; (3) the

new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and

(4) the new evidence is probably true and will probably bring about a different result. S ee Wallace

v. State

, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003); Keeter v. State

, 74 S.W.3d 31, 36-37 (Tex.

Crim. App. 2002). 5 A failure by a defendant to establish any of the essential requirements for a new

trial based on newly discovered evidence warrants the trial court’s denial of the motion. S hafter v.

State , 82 S.W.3d 553, 556 (Tex. App.—San Antonio 2002, pet. ref’d).13 Evidence Unknown to Movant Before Trial

The first requirement of the four-part test is that the movant for a new trial based on

newly discovered evidence must show that he was unaware of that evidence before the trial

concluded. Appellant’s trial attorney testified that he was “tipped” four days after sentencing to the

fact that Ruiz had not taken his official oaths, or, at least, had not filed the same. The problem that

presents itself is that appellant was represented at trial by three attorneys. While the evidence at the

hearing on the new trial motion shows that attorney Martinez may have been unaware of the “newly

discovered evidence,” there was no showing that this matter was unknown to other defense counsel

or appellant.

The courts regard the defendant and his or her attorneys as a “knowledge unit” so that

what is known to one is known to all for purposes of determining whether the

evidence was known before trial. Thus, if the defendant knew of the existence and

identity of a witness but failed to tell his or her attorney of that fact, it is not newly

discovered evidence that the a ttorney learns of this information only after trial.

Similarly, if the evidence was kn own to one of two defense attorneys, that is

sufficient to present it from being newly discovered as to the other attorney who

learns of it after trial.

43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 41.42

(2d ed. 2001) (citing Sawyer v. State

, 778 S.W.2d 541, 545 (Tex. App.—Corpus Christi 1989, pet.

re f’d); Zamora v. State , 647 S.W.2d 90, 94-95 (Tex. App.—San Antonio 1983, no pet.)). Thus,

appellant failed to meet the fundamental requirement that the cl aimed newly discovered evidence

was unknown to him and his attorneys at the time the trial concluded.14 Due Diligence

It is not enough that the evidence be unknown to the defense. It must also be alleged

and proved that failure to timely discover the evidence was not due to the lack of diligence by the

defense. B oyett v. State

, 692 S.W.2d at 517. “The ultimate question is whether the evidence would

have been discovered in time to have been presented at trial by reasonable pretrial investigative

effor ts.” Dix, § 41.43. “If the claim is that evidence was unknown because the defense attorney

fail ed to use diligence to discover it before trial, that is a matter for an ineffective assistance of

counsel claim rather than a motion for new trial based on newly discovered evidence.” Id

.

Attorney Martinez took advantage of the State’s open file policy, filed pretrial

motions including Brady motions, and made other efforts to discover and obtain personnel and

disciplinary records of the officers involved in the execution of the search warrant. The focus,

however, was never on obtaining evidence of Ruiz’s oath taking. Martinez acknowledged that he

was unaware of the law regarding official oaths. As the State points out, the law requires the county

clerk to post a list of appointed deputy sheriffs in a conspicuous place in the clerk’s office. S ee Tex.

Local Gov’t Code Ann. § 83.003(b) (West 1999). The State observes that Martinez did not check

any of the public records of the clerk’s office regarding oaths prior to the conclusion of the trial. No

evidence was offered as to diligence on the part of the other defense counsel or defense investigator.

Appellant did not sustain his burden as to the requirement of due diligence.

Admissible and Not Merely Cumulative

The “new” evidence here appears to be admi ssible, and not merely corroborative,

collateral, or impeaching, and meets the third requirement of the four-part test. The issue was not15

contested on this basis at the hearing on the motion for new trial. Neither party has briefed the

matter.

Materiality

The fourth requirement of the test is the materiality prong. The “new” evidence must

be shown to be probably true an d, as such, will probably bring about a different result. The point

appellant sought to make was that Ruiz, at the time of his death on February 15, 2001, had not taken

or filed his constitutional oaths after Sheriff Margo Frasier had been elected, taken her oath, and

otherwise qualified for a second term as sheriff. As noted, appellant attempted proof only by virtue

of affidavits and the taking of judicial notice. Upon appellant’s request, the trial court took judicial

notice as set out earlier.

There is nothing in the judicial notice requested or in the trial court’s statement as to

when Sheriff Frasier took her oath of office and otherwise quali fied for her second term.

Assumption is incompatible with the taking of judicial notice by the trial court. S ee Tex. R. Evid.

201(b).

The office of county sheriff in Texas is established by the state constitution. Tex.

Const. art. V, § 23. “All officers within this State shall continue to perform the duties of their office

until their successors shall be duly qualified .” Tex. Const. art. XVI, § 17. This constitutional

provision is self-executing. B erleu v. State

, 225 S.W.2d 518, 519-20 (Tex. Crim. App. 1920);

Hamilton v. State

, 51 S.W. 217, 219 (Tex. Crim. App. 1898), and it is mandatory. S tate ex rel Glenn

v. Jordan , 28 S.W.2d 921, 923 (Tex. Civ. App.—Amarillo 1930, writ dism’d w.o.j.).6 There are cases holding a deputy sheriff’s term expires when the sheriff’s term expires.

See Tarrant County v. Van Sickle

, 98 S.W.3d 358, 364 (Tex. App.—Fort Worth 2003, pet. denied)

(citations omitted). These cases were decided under article III, section 52e of the Texas Constitution

and its particular language as to “term of office.” I d

. It has been held that art. III, section 52e does

not implicitly overrule local government code section 85.003(c)’s “at will” employment of sheriff’s

deputies. I

d

. at n.6. The constitutional and statutory provisions can be interpreted consistently. I d

.

16 An o fficer who holds over after the expiration of his or her term and until such

officer’s successor has qualified as required by the state constitution is a de jure not a de facto

officer, and this is true of an officer who is elected to succeed himself or herself and fails to qualify

for the secon d term. Hamilton , 51 S.W. at 219; J ordan

, 28 S.W.2d at 923; see generally 60 T.

Jur.3d, P ublic Officers And Employees

, § 252 (1988). Such hold-over de jure officer has all the

authority to act in that capacity and receive compensation. J ordan

, 28 S.W.2d at 923; 35 David B.

Brooks, Texas Practice: County and Special District Law § 7-7 (2002).

Based on the judicial notice taken, Sheriff Margo Fras ier of Travis County was

eligible on January 1, 2001, to take official oaths of office, post bond, and otherwise qualify for a

second term as sheriff. This record is silent as to whether on February 15, 2001, Sheriff Frasier had

qualified for her second term or was holding over until her successor (herself) qualified. In the latter

situation, Ruiz, who duly qualified as de jure deputy sheriff during the sheriff’s first term as reflected

by appellant’s evidence, would have remained as a de jure deputy while Sheriff Frasier “held over.”

A deputy sheriff serves at the will of the sheriff. S ee Tex. Local Gov’t Code Ann. § 85.003(c) (West

1999). 6 There was no evidence that Ruiz’s employment as a deputy had ever been terminated by the

sheriff. In fact, the contrary appears. In the former situation, Sheriff Frasier would have qualified

for her second term after January 1 and before February 15, 2001. In this situation, in order to17

support his allegations, appellant needed to demonstrate that Ruiz was not a de jure officer on the

night of the shooting, by showing both that appellant had failed to take his constitutional oaths and

to file the same. No direct evidence was developed to show that in fact Ruiz failed to take his oaths.

In attempting to p r ove that Ruiz failed to file his oath after January 1, 2001, appellant offered

documentary evidence from both the Secretary of Texas and the Travis County Clerk that Ruiz had

duly filed his oath of office in January 1997, w ith both agencies. Appellant then offered a

certification from the Secretary of State that she made a diligent search of records filed pursuant to

“article XVI, section 1 of the Texas Constitution” and found the 1997 filing by Ruiz. This document

may leave an inference but there was no conclusive language that no later filings existed. Appellant

did offer the affidavit of a deputy county clerk to the effect that she had made a search of deputations

and oath records for nine named individuals including Ruiz. The affidavit concluded: “The records

presented are all the Deputations and Oaths found on the above persons.” It is unclear as to which

records the affidavit has referenced. None were attached to the affidavit introduced into evidence.

Even if appellant’s “new” evidence had a tendency to support his allegations and the

probable truth thereof, there must be a showing that the “new” evidence would probably bring about

a different result at another trial. This confronts us with the doctrine of a de facto officer.

De Facto Officer

The judicial creation of the d e factor officer doctrine serves the purpose of

legitimizing the acts of public officials who, for one reason or another, have not technically qualified

in all respects. This would include the failure to execute the official oath or bond. The courts have

deemed it to be in the public interest not to invalidate on a technicality the acts of persons purporting18

to be public officials. 35 David B. Brooks, T exas Practice: County and Special District Law

, § 7:7

(2d ed. 2002).

In Williams v. State

, 588 S.W.2d 593 (Tex. Crim. App. 1979), the court quoted from

Weatherford v. State , 21 S.W. 251, 251 (Tex. Crim. App. 1893), in defining a “de facto” officer:

A de facto officer is one who has the reputation of being the officer, and yet is

not a good officer in point of law; in other words, the de facto officer is one who acts

under the color of a known and valid appointment, but has failed to conform to some

precedent requirement as to take an oath, give a bond, or the like.

Williams

, 588 S.W.2d at 595; see also Germany v. Pope

, 222 S.W.2d 172 , 176 (Tex. Civ.

App.—Fort Worth 1949, writ ref’d n.r.e.).

A de facto officer is:

1. An officer who exercises the duties of an officer under the color of appointment

or election, but who has failed to qualify for any one of various reasons, as by

being under the required age, having failed to take the oath, having not furnished

required bond, or having taken office under a statute later declared

unconstitutional.

Black’s Law Dictionary 7th ed. (West 1999).

In the instant case, there was testimony that Ruiz was a peace officer, that he had been

a deputy sheriff of Travis County consistently for thirteen years and a member of the Sheriff’s Swat

Team for seven years. Evidence of one of his official oaths taken in January 1997 was introduced

at the new trial hearing. Ruiz had the reputation of being a peace officer among his fellow peace

officers and the public. On February 15, 2001, Ruiz was dressed in a black battle uniform of a peace

officer with the word “Sheriff” emblazoned thereon. He had been specially trained in the work of19

the Swat Team and on the night in question he was acting with members of that team and officers

of the Narcotics Task Force under the circumstances earlier described. Clearly, under the law, Ruiz

was a de facto officer at the time of his death, even though no official oath had been taken or filed

since January 1, 2001.

In Freeman v. State

, 556 S.W.2d 287, 303-04 (Tex. Crim. App. 1977), a conviction

for the capital murder of a peace officer was upheld even though the record demonstrated that the

officer ha d not filed a notarized oath of office with the county clerk as required by law. The

Freeman court held that the evidence was sufficient to demonstrate that the victim was a de facto

deputy sheriff and hence a peace officer under the capital murder statute. The trial court there did

not err in denying a defense motion for instructed verdict. Id . at 304.

In Williams

, 588 S.W.2d at 594-95, the Texas Court of Criminal Appeals affirmed

a conviction for aggravated assault on a peace officer, finding that the evidence supported the fact

that the officer was a de facto deputy sheriff despite the failure of the officer to take the official oath.

Here again, the trial court did not err in denying the motion for instructed verdict on the basis that

the complainant was not a peace officer. I d

. at 595. F reeman was cited with approval. I d

. S ee also

McGowen v. State , 885 S.W.2d 285, 287-89 (Tex. App.—Beaumont 1994, no pet.) (affirming

convictions for escaping from a peac e officer and for aggravated assault on a peace officer when

complainant was shown to be a de facto reserve deputy sheriff).

More recentl y, in Teevan v. State , No. 14-02-01051-CR, 2003 Tex. App. LEXIS 6993

at *1 (Tex. App.—Houston [14th Dist.] Au g. 14, 2003, no pet.), the court issued a memorandum

opinion because “all dispositive issues are clearly settled in law.” In this attempted capital murder20

of a peace officer prosecution, the court rejected the defendant’s claim that the evidence was legally

insufficient based on the failure of the record to show that the complainant was a peace officer

becau se he had not filed his oath of office and bond with the county clerk. Citing F reeman

Williams

, and McGowen , the court held under the circumstances presented the complainant was a

de facto deputy sheriff.

In the event of a new trial, appellant would not be entitled to an instructed verdict of

“not guilty” as to capital murder as charged in the first count of the indictment.

Without acknowledging Freeman or its forerunners or progeny, appellant relies upon

Prieto Bail Bonds v. State , 994 S.W.2d 316 (Tex. App.—El Paso 1999, pet. ref’d), holding that a

retired senior judge, sitting in a district court by assignment of the Presiding Judge of the

Administrative Region, was required to take the state constitutional oaths applicable to elected and

appointed officials. 994 S.W.2d at 220. Earlier, the same court held that the judge was a de facto

judge despite the absence of an oath and his actions were not void; that the judge’s authority could

only be questioned through quo warranto action. S ee Prieto Bail Bonds v. State

, 948 S.W.2d 69, 71-

72 (Tex. App.—El Paso 1997, pet. granted, judgment vacated and cause remanded), 978 S.W.2d

574, 575 (Tex. Crim. App. 1998). The remand was in light of W ilson v. State

, 977 S.W.2d 379 (Tex.

Crim. App. 1998) (overruling earlier precedent that a judge’s authority could only be challenged by

quo warranto proceedings). On remand, the El Paso court changed its mind and reversed the

judgment in the bond forfeiture suit and held that the retired senior judge, sitting by assignment, had

to take the constitutional oaths as an appointed officer. 994 S.W.2d at 220.7 See generally Tex. Gov’t Code Ann. §§ 74.001 to 74.062 (West 1998 & Supp. 2004).

21 The Prieto case leaves many questions. If a retired senior judge opts to retain his

judicial capacity as permitted by law 7 and accepts temporary as signments from time to time to

different courts, what appointed de jure office does he or she hold? Who is the appointing authority?

What is the term of such office? How often must the constitutional oaths be taken by the senior

judge? We disagree with the reasoning of the Prieto court.

We are, of course, not bound by the decision of another court of appeals. Lambert

v. Affiliated Foods, Inc.

, 20 S.W.3d 1, 8 (Tex. App.—Amarillo 1999), aff’d sub nom. Lawrence v.

C.D.B. Services Inc.

, 44 S.W.3d 544 (Tex. 2001); Mitchell v. John Wiesner, Inc.

, 923 S.W.2d 262,

264 (Tex. App.—Beaumont 1996, no writ); Eubanks v. Mulli n , 909 S.W.2d 574, 576 (Tex.

App.—Fort Worth 199 5 (orig. proceeding); s ee also Shook v. State

, 244 S.W.2d 220, 221 (Tex.

Crim. App. 1951) (court not bound by a decision of a court of equal jurisdiction). In addition to not

being bound by Prieto , we find it distinguishable from the instant case on the law and the facts as

we do French v. State , 572 S.W.2d 934, 939 (Tex. Crim. App. 1978) (op. on 2d reh’g).

Motions for new trial based on newly discovered evidence traditionally lack favor

with the courts and are viewed with great caution. D rew v. State

, 743 S.W.2d 207, 225-26 (Te x

.

Crim. App. 1987); Tuffiash v. State

, 948 S.W.2d 873 (Te x. App.—San Antonio 1997, pet. ref’d);

Villarreal v. State

, 79 S.W.3d 806 (Tex. App.—Corp us Christi 2002, pet. ref’d). A review of a

d enial of a motion for new trial based on newly discovered evidence is based on an abus e of

discretion standard. L ewis v. State , 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). A reviewing court

does not substitute its judgment for that of the trial court, rather it decides whether the trial court’s22

decision was arbitrary or unreasonable. D rew

, 743 S.W.2d at 225-26. Appellant failed to establish

three prongs of the four-part test set forth in Keeter

, 74 S.W.3d at 36-37. We conclude that the trial

court did not abuse its discretion and was neither arbitrary nor unreasonable in overruling appellant’s

motion for new trial. Appellant’s first point of error is overruled.

Ineffective Assistance of Counsel

In his second point of error, appellant contends that his trial counsel rendered

ineffect ive assistance of counsel “when h e failed to investigate and produce evidence at trial that

Keith Ruiz was not a peace officer acting in the lawful discharge of an offici a l duty.” (Emphasis

added.) This claim is based on counsel’s failure to uncover the fact that Ruiz had not taken his

official oaths as deputy sheriff after the sheriff began her second term of office.

The Standard of Review

The Sixth Amendment to the United States Constitution guarantees the right to the

reasonably effective assistance of counsel in a state criminal proceeding. McMann v. Richardson

,

397 U.S. 759, 771 n.14 (1970); Garcia v. State

, 57 S.W.3d 436, 440 ( Tex. Crim. App. 2001);

Wilkerson v. State

, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). In S trickland v. Washington

, 466

U.S. 668, 689 (1984), the United States Supreme Court held that in o rder to show ineffective

assistance of counsel, a convicted defendant must show that (1) his trial counsel’s performance was

deficient, in that counsel made such serious errors he was not functioning effectively as counsel; and

(2) the deficient performance prejudiced the defense to such a degree that the defendant was deprived

of a fair trial. In this connection, a strong presumption exists that counsel rendered adequate23

assistance and made all significant decisions in the exercise of reasona ble professional judgment.

“Prejudice” is demonstrated when the convicted defendant shows “a reasonable probability that but

for counsel’s unprofessional errors, the result of the proceedings would have been different.” I d

. at

694. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id .; Parmer v. State

, 38 S.W.3d 661, 665 (Tex. App.—Austin 2000, pet. ref’d); Banks v. State

, 819

S.W.2d 676, 681 (Tex. App.—San Antonio 1991, pet. ref’d). Unless a defendant makes both

showings, it cannot be said that the conviction resulted from a breakdown in the adversary process

that renders the results unreliable. S trickland

, 466 U.S. at 687; Oestrick v. State

, 939 S.W.2d 232,

237 (Tex. App.—Austin 1997, pet. ref’d). Under S trickland

, a defendant has the burden to prove

a claim of ineffective assistance of counsel by a preponderance of the evidence. M cFarland v. State

,

928 S.W.2d 482, 500 (Tex. Crim. App. 1996); Parmer , 38 S.W.3d at 665.

The two-pronged standard for testing claims of ineffective assistance of counsel set

out in Strickland has been adopted for Texas constitutional claims. H ernandez v. State

, 726 S.W.2d

53, 57 (Tex. Crim. App. 1986). Under the S trickland-Hernandez standard, any allegation of

ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate

the alleged ineffectiveness. T hompson v. State

, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Josey

v. State

, 97 S.W.3d 687, 696 (Tex. App.—Texarkana 2003, no pet.). The assessment of whether a

defendant received effective assistance of counsel must be made according to the facts of each case.

Lopez v. State

, 96 S.W.3d 406, 417 (Tex. App.—Austin 2002, pet. ref’d). Whether the S trickland

test has been met is to be judged by the “totality of the representation” rather than by isolated acts

or omissions of trial counsel, and the test is applied at the time of the trial, not th rough hindsight.24

Ex parte Welborn

, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Banks

, 819 S.W.2d at 681. Any

judicial review of a defendant’s claim of ineffective assistance must be highly deferential to trial

counsel. T

homps on , 9 S.W.3d at 813. There is a strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance. I d .; Jackson v. State

, 877 S.W.2d 768,

771 (Tex. Crim. App. 1994).

We do not speculate about trial counsel’s strategy. B levins v. State

, 18 S.W.3d 260,

271 (Tex. App.—Austin 2000, no pet.). A reviewing court will not second guess through hindsight

the strategy of counsel at trial. In the absence of direct evidence in the record of counsel’s reasons

for the challenged conduct, an appellate court will assume a strategic motivation if any can be

imagined. G arcia

, 57 S.W.3d at 441; Skeen v. State

, 96 S.W.3d 567, 580 (Tex. App.—Texarkana

2002, no pet.). C

f. Moore v. Johnson

, 194 F.3d 586, 604 (5th Cir. 1999). The challenged conduct

will not, under the circumstances, consti tute deficient performance unless the conduct was so

outrageous that no competent attorney would ha ve engaged in it. G arcia

, 57 S.W.3d at 441;

Thompson , 9 S.W.3d at 814.

Claims of ineffective assistance of trial counsel can be properly raised on appeal if

t he appellate record is sufficiently developed. R obinson v. State

, 16 S.W.3d 808, 813 n .7 (Tex.

Crim. App. 2000). In most cases the trial record alone will be insufficient. S ee Thompson

, 9 S.W.3d

at 813. The record can be developed by a hearing on a motion for new trial based on a claim of

ineffective assistance of counsel. S ee Reyes v. State

, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993).

Appellant failed to do this but relies on the record from the hearing on the motion for a new trial

based solely on the claim of newly discovered evidence. Appellant urges that the instant record is25

sufficient to support his claim. The difficulty is that appellant was represented by three trial

attorneys. Whether the S trickland test has been met is to be judged by the “totality of the

representation.” W

elborn

, 785 S.W.2d at 393. As noted earlier, courts regard the defendant and his

attorneys as a “knowledge unit.” 43A Dix, § 41.42. The point of error is limited to one counsel’s

failure to investigate and to produce certain evidence. No complaint is directed to the representation

by other counsel. We deem the record inadequate to make a fair evaluation of appellant’s claim

under Strickland

. Appellant is not foreclosed from presenting his claim via a collateral attack by

virtue of an application for post-conviction writ of habeas corpus. R obinson

, 16 S.W.3d at 812-13;

Jackson v. State

, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Ex parte Torres

, 943 S.W.2d 469,

475 (Tex. Crim. App. 1997).

Moreover, if the evidence appell ant claims should have been presented at trial had

been admitted, it would not “have negated an essential element of capital murder” as appellant urges.

See Freeman , 556 S.W.2d at 303-04. The second point of error is overruled.

Limited Cross-examination

In this third point of error, appellant complains that the trial court erred in limiting

the cross-examination of Depu ty Sheriff Richard Hale “regarding his relationship with the

confidential informant.”

Deputy Sheriff Hale was the first-line supervisor of the Capital Area Narcotics Task

Force. Hale was a State’s witness and described the events of the night of February 15, 2001, and

the shooting of fellow officer, Keith Ruiz, which was the basis of the capital murder offense charged.

Hale was fully cross-examined about these matters. Near the end of the cross-examination, Hale was8 Although appellant did not so state at the time, it was his purpose, in view of Deputy Hale’s

answer to the last question, to impeach Ha le by showing Hale’s relationship with the confidential

informant.

9 The State had inadvertently disclosed the name of the confidential informant to appellant.

Even after

disclosure, the term “confidential informant” was frequently used at trial and carried

forward in the appellate briefs. Therefore, we have also used the term in responding to the points

of error.

26 interrogated in gen eral about “dynamic” entries into residences, the goals of such entries, the

planning stages, and the risk analyses or assessments made. Hale was asked if he allowed personal

feelings or considerations to enter into any decision on assessments and risk analyses. Hale

answered, “No.”

At this po i nt, appellant asked for a hearing in the absence of the jury to proffer

evidence. 8 At the hearing, appellant established the name of the confidential informant, 9 that Hale

knew him personally, and that the informant had two brothers who were deputy sheriffs. The trial

court moved the hearing “in chambers” because of the nature of the testimony and the safety of

certain individuals. At the conclusion of the hearing, the trial court took the matter under

advisement. Several days later another “in chambers” hearing occurred with the prosecution taking

the initiative in interrogating Hale about the subject matter of his relationship with the confidential

informant. At the end of the hearing, no ruling was made by the trial court.

The testimony at the two hearings reflected that Hale knew E.M., the confidential

informant, who had two brothers, Mike and Manny, whom Hale k new and with whom he had

worked as a peace officer. Some four years before the offense, E.M. had done some sheetrock work

at Hale’s house, and from time to tim e had done other work there. Hale indicated that he did not

normally socialize with E.M., although he once had attended a barbeque on E.M.’s property.27 Some three or four months before the offense, Hale received a telep hone call from

E.M. Hale was surprised because “they did not speak on a regular basis.” E.M. complained about

thefts at his business and the writing of hot checks. Hale referred him to the Austin Police

Department. Because E.M. sounded paranoid, Hale called E.M.’s brother, Mike. Mike knew about

E.M.’s complaints and condition. Mike told Hale that he was afraid that E.M. had gotten involved

with “speed” which h e had obtained from appellant Delamora. The brothers were opposed to the

use of E.M. as a confidential informant, but Ha le decided otherwise. At one point, Hale revealed

that there was an independent narcotics investigation involving appellant.

Hale related that any information received from E.M. was relayed to Deputy Sheriff

Billy Poole, who was in charge of the investigation; and that Hale’s personal relationship with E.M.

or his brothers did not affect his actions. Hale denied that he ever “covered” for E.M. or “tipped”

him that he was a suspect in a drug investigation.

The situation came to a head during the presentation of the defense case. Appellant

call ed Hale as a witness without specifying whether he was being recalled for further crossexamination. After the trial court learned that appellant intended to raise the “relationship” issue,

a lengthy colloquy ensued. Thereafter, over objections, only the following cross-examination was

permitted before the jury.

Q. Officer Hale, were you calle d by the confidential informant with some concerns?

A. Yes.

Q. Is the confidential informant someone you knew personally?

A. He was an acquaintance.28

Q. Is the confide n tial informant a close relative of two employees of the Travis

County Sheriff’s Office?

A. Yes.

Q. Are those two employees friends of yours?

A. Coworkers, friends, yes.

Q. Friends. Was your decision to undertake the investigation and/or raid personal

or professional?

A. Professional.

Q. Was either the informant or the employees present at the time of the raid or in

the immediate vicinity at the time of the raid?

A. No, not to my knowledge.

The trial court also found that the balance of the evidence about the “relationshi p” had “little

relevancy” to the issues in a capital murder case. S ee Tex. R. Evid. 401. The prosecution then

obtained a ruling that the same evidence’s probative value was substan tially outweighed by the

danger of unfair prejudice. See Tex. R. Evid. 403.

Impeachment on a Collateral Matter

In the cross-examination before the jury, appellant was bound by Hale’s answer that

no personal feelings or considerations en tered into the decision on the risk analysis involved.

Appellant was not entitled to impeach Hale by showing Hale’s “relationship” with the confidential

informant and his brothers. The trial court gave appellant more than that to which he was entitled.10 There was no evidence establishing the invalidity of the search warrant. Moreover, once

the appellant used force against the officers, the legality of the search warrant became immaterial.

See Solis v. State

, 704 S.W.2d 883, 885 (Tex. App.—Corpus Christi 19 86, pet. ref’d). A capital

murder conviction for killing a police officer under section 19.03(a)(1) of the Penal Code does not

depend on whether the arrest or search was legal nor on a defendant’s belief about their legality. S ee

Salazar v. State

, 643 S.W.2d 953 (Tex. App. 1983). A police officer is still acting within the lawful

discharge of his duty even when he m a kes an unlawful arrest so long as he is acting within his

capacity as a peace officer. S ee Montoyer v. State

, 744 S.W.2d 15, 29-30 (Tex. Crim. App. 1987).

29 As a general rule, a party is not entitled to impe ach a witness on a collateral or

immaterial matter. R amirez v. State

, 802 S.W.2d 674, 675 (Tex. Crim. App. 1990); Poole v. State

,

974 S.W.2d 892, 905 (Tex. App.—Austin 1998, pet . ref’d). A party may not cross-examine a

witness on a collateral matter, then contradict the witness’s answer. S hipman v. State

, 604 S.W.2d

182, 184-85 (Tex. Crim. App. 1980); see also Flannary v. State

, 676 S.W.2d 369, 370 (Tex. Crim.

App. 1984); Drone v. State

, 906 S.W.2d 608, 615 (Tex. App.—Austin 1995, pet. ref’d). A collateral

matter is one which seeks only to test a witness’s general credibility or relates to facts irrelevant to

issues at trial. K

eller v. State

, 662 S.W.2d 362, 365 (Tex. Crim. App. 1984). The evidence sought

to be introduced by appellant (some of which was admitted) bears no relationship to any contested

issue in the capital murder trial. 10 Moreover, appellant argues on appeal the exclusion of the

evidence was “extremely damaging to the defense case” because one of the defensive theories was

that all the officer-witnesses were “lying” about what occurred on the night of February 15, 2001.

A p pellant insists that the excluded evidence would have reflected on the credibility of all the

testifying officers, particularly Hale, as to the issues of whether proper procedures were followed,

whether proper announcements were made, and the question of friendly fire. Appellant contends that

he was entitled to test the genera l credibility of several witnesses by use of such evidence. This11 We do not find that this contention was ever presented to the trial court. A trial objection

stating one legal theory may not be used to support a different legal theory on appeal. R ezac v. State

, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).

12 Appellant does not cite the Texas Constitution nor claim that the state constitution grants

him greater rights than the federal constitution. Consequently, we will not address that question and

assume for the purp ose of this opinion that appellant’s rights under the Texas Constitution are

comparable to those guaranteed by the United States Constitution. S ee Nevels v. State

, 954 S.W.2d

154, 157 n.2 (Tex. App.—Waco 1997, pet. ref’d); Gonzales v. State

, 929 S.W.2d 546, 548-49 (Tex.

App.—Austin 1996, pet. ref’d).

30 argument runs afoul of Keller’s definition of a collateral matter. 11 Appellant could not impeach on

a collateral matter and this appears to foreclose his contention. However, neither party has briefed

this proposition of law an d appellant generally urges that despite any proposition of law,

constitutional error occurred.

Appellant relies solely upon the Sixth Amendment to the United States Constitution

to support his claim that his right of cross-examination wa s improperly limited. 12 The Sixth

Amendmen t to the United States Constitution guarantees the right of an accused in a criminal

prosecution to be confronted with the witnesses against him. U.S. Const. amend. IV. A primary

interest secured by the Confrontation Clause is the right of cros s-examination. L opez v. State

, 18

S.W.3d 220, 222 (Tex. Crim. App. 2000). The practice of exposing a witness’s motivation to testify

against a defendant is a “proper and important function of the constitutionally protected right of

cross-examination.” Delaware v. Van Arsdale , 475 U.S. 673, 679 (1986). The right is secured to

defendants in state as well as federal criminal proceedings. D ouglas v. Alabama

, 380 U.S. 415, 418

(1965) (citing Painter v. Texas , 380 U.S. 400 (1965)).

This constitutional right of confrontation is violated when appropri ate crossex amination is limited. C arroll v. State

, 916 S.W.2d 494, 497 (Tex. Crim. App. 1998); Hurd v.13 It is clear from the language of D elaware v. Van Arsdale

, 475 U.S. 673, 679 (1986), that

the “concerns” or factors listed which may permit trial courts to limit cross-examination are nonexclusive.

31 State

, 725 S.W.2d 249, 252 (Tex. Crim. App. 1987); Stevenson v. State

, 997 S.W.2d 766, 768 (Tex.

App.—Houston [1st Dist.] 1999, pet. ref’d). Appropriate cross-examination includes all avenues

reasonably calculated to expose a motive, bias, or interest for the witness to testify. C arroll

, 916

S.W.2d at 497; Lewis v. State , 845 S.W.2d 560, 565 (Tex. Crim. App. 1991).

It does not follow, of course, that the Confrontation Clause of the Sixth Amendment

prevents a trial judge from imposing any limits on defense counsel’s inquiry into the

potential bias of a prosecution witness. On the contrary, trial judges retain wide

latitude insofar as the Confrontation Clause is concerned to impose reasonable limits

on such cross-examination based on concerns about, a mong other things

, harassmen t

, prejudice, confusion of the issues, the witness’ safety, or interrogation t hat is

repetitive or only marginall y relevant. And as we observed earlier this Term, “the

Confrontation Clause guarantees an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to whatever e xtent, the

defense might wish.”

Van Arsdall

, 475 U.S. at 679 (citation omitted and emphasis added); 13 see also Carpenter v. State

,

979 S.W.2d 633, 634-35 (Tex. Crim. App. 1998); Gonzales v. Stat e , 929 S.W.2d 546, 551 (Tex.

App.—Austin 1996, pet. ref’d).

Thus, a trial court may permissibly limit the scope of cross-examination under certain

circumstances. C

arroll

, 916 S.W.2d at 498. In G uiterrez v. State

, 764 S.W.2d 796 (Tex. Crim. App.

1989), the court wrote:

The Sixth Amendment, however, is not a talisman justifying forays into matters

that are collateral to the issues at trial. Although it tips the scales in favor of

permitting cross-examination, the Sixth Amendment does not prevent the trial court32

from evaluating the subject of inquiry, determining its probative value to the trier of

fact and its probable effect on the fair and efficient conduct of the trial.

Id. at 799. (Citations omitted.)

Cross-examination may also be limited if it is not calculated to reveal bias or motive

to testify falsely. S ee Carroll

, 916 S.W.2d at 498; Stevenson

, 997 S.W.2d at 768; see also Chipman

v. Mercer

, 628 F.2d 528, 531 (9th Cir. 1980) (“[S]ome topics may be of such minimal relevance that

the trial court would be justified either in totally prohibiting cross-examination about them or in

allowing only limited questioning.”).

In the instant case, appellant’s reliance upon the Sixth Amendment is misplaced. The

Sixth Amendment

does not justify appellant’s attempts to impeach Hale on the basis of collateral

matters not relevant to proving a material issue in the case. S ee Ramirez

, 802 S.W.2d at 675; Poole

,

974 S.W.2d at 905. Further, the careful trial court permitted some cross-examination and found the

excluded evidence has “little relevancy” to the case. Cf . Tex. R. Evid. 401, 402; Ellis v. State

, 99

S.W.3d 783, 789 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

Even if the evidence is relevant, it has been said that each case should be considered

on it own merits, and that in weighing whether evidence must be admitted under the confrontation

clause, the trial court sh ould balance the probative value of the evidence sought to be introduced

against the risk the admission may entail. L opez

, 18 S.W.3d at 222; Nevels v. State

, 954 S.W.2d 154,

157 (Tex. App.—Waco 1997, pet. ref’d); Gonzales v. State , 929 S.W.2d 546, 551 (Tex.

App.—Austin 1996, pet. ref’d); Tex. R. Evid. 403. This is what the trial court did as to the excluded

evidence.33 If a trial court’s decision is correct on any theory of law applicable to a case, it will

be sustained on appeal. H ughes v. State

, 24 S.W.3d 833, 840 n.4 (Tex. Crim. App. 2000); Jones v.

State

, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998). This is particularly true in a review of an issue

involving the admissibility of evidence. M cDuff v. State

, 939 S.W.2d 607, 619 (Tex. Crim. App.

1997). And the principle holds true even when a trial court gives the wrong reasons for its decision.

Romero v. State , 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990).

A trial court’s decision to admit or exclude evidence is afforded a great deal of

discretion. M

ontgomery v. State

, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990). Therefore, we

review a trial court’s ruling on the admission or exclusion of evidence under an abuse of discretion

standard. B urden v. State

, 55 S.W .3d 608, 615 (Tex. Crim. App. 2001); A ngleton v. State

, 971

S.W.2d 65, 67 (Tex. Crim. App. 1998). If the trial court’s evidentiary ruling is reasonably supported

by the record under any theory of applicable law, it will be upheld on appeal. This is known as the

“zone of reasonable disagreement” test. M ontgomery

, 810 S.W.2d at 391. The trial court did not

abuse its discretion in limiting the cross-examination of the witness Hale on the “relationship”

question for the reasons discussed.

Harmless Error Analysis

We have found no merit in appellant’s point of error although appellant insists that

there was constitutional error and that it was not harmless under the standard of Rule 44.2 of the

Texas Rules of Appellate Procedure. In light of the nature of the case, the punishment assessed, and

the delay which accompanies any possible remand for a harm analysis, we shall conduct an analysis

now.34 Rule 44.2(a) provides:

(a) Constitutional Error. If the appellate record in a criminal case reveals

constitutional error that is subject to harmless error review, the court of appeals

must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.

We do not focus on the propriety of the outcome of the trial but the integrity of the

process that led to the conviction and punishment. H arris v. State , 790 S.W.2d 568, 587-88 (Tex.

Crim. App. 1989). There was overwhelming evidence of appellant’s guilt of capital murder as

charged, but the question is whether the overwhelming evidence of guilt dissipates the error’s effect

upon the jury’s function in determining the facts so that the error did not contribute to the verdict.

See Davis v. State

, 8 S.W.3d 777, 784 (Tex. App.—San Antonio 2000, no pet.). From the record

as a whole, we conclude beyond a reasonable doubt that the error, if any, of excluding the balance

of Hale’s testimony about the “relationship” did not contribute to appellant’s conviction. The State

waived the death penalty so the trial court automatic ally imposed a life sentence, the only

punishment then available for capital murder as found by the jury. S ee Tex. Pen. Code Ann. § 12.31

(West 2003). The error, if any, did not contribute to the punishment. Appellant’s third point of error

is overruled.

More Limited Cross-Examination

In his fourth point of error, appellant contends that the trial court erred in limiting the

cross-examination of Deputy Billy Poole “regarding his relationship with the confidential35

informant.” The contention is strikingly similar to that urged in the third point of error except that

the trial court refused to allow any interrogation before the jury on the subject matter.

Investigator Billy Poole was a Travis County deputy sheriff and the case agent for the

narcotics investigation of appellant. He also participated in the execution of the search warrant

during which time Deputy Ruiz was fatally wounded. On both direct and cross-examination, Poole

testified as to the events that occurred on the night in question.

During cross-examination, he was asked:

Q. And everything connected with that raid was done professionally and there was

no personal consideration taken into account, correct?

A. Correct.

At this point, appellant asked to proffer testimony in the jury’s absence. The hearing

was held in chambers at the conclusion of the cross-examination. Poole testified that he knew the

confidential informant’s brothers, Mike and Manny, and had worked with Mike, who had once been

his partner. Poole testified that about a year or so before the offense he met E.M., the informant, at

a funeral for the grandmother of the brothers, which he (Poole) attended to support Mike. This was

the only time that Poole had seen E.M. Poole related that all the information furnished him about

appellant’s activities came from Deputy Hale, not through any contact with E.M. Poole testified that

his relationship with Mike and his family did not affect in any way the manner in which he dealt with

the investigation. At the conclusion of the hearing, the trial court took the matter under advisement.

Here, as with the witness Hale, appellan t called Poole as a witness during the

presentation of the defense case. Therefore, the trial court immediately ruled that it would not permit36

the “relationship” cross-examination because the evidence showed that Poole had no interest or bias

that would affect him personally. The trial court, in effect, held that the probative value of the

evidence was substantially outweighed by the danger of unfair prejudice. Appellant objected and

the trial court announced that appellant “had” his bill of exception.

Here again, appellant was bound by the answer he received from Poole during crossexamination before the jury as to professionalism. A party may not cross-examine a witness on a

collateral matter, then contradict the witness’s answer. S hipman

, 604 S.W.2d at 184-85. Moreover,

the topic was of such minimal relevance that the trial court was justified in totally prohibiting crossexamination on the topic. C hipman

, 628 F.2d at 531. Our discussion under the third point of error

clea rly shows that appellant’s claimed constitutional error is without merit, and that if there was

constitutional error, it was harmless error under the standard of Rule 44.2. Tex. R. App. P. 44.2.

The fourth point of error is overruled.

The judgment is affirmed.

__________________________________________

John F. Onion, Jr., Justice

Before Chief Justice Law, Justices Puryear and Onion *

Affirmed

Filed: February 5, 2004

Publish

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Crim inal Appeals, sitting by

assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).