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### MEM ORA ND UM OP INION No . 0 4- 09 -0 04 06 -C R Guada lupe Espino DIAZ , Appellant
v. The STA TE of

Te xas, Appellee Fr om the 175th J udicial District Court, Be x ar County , Texas

Trial Court No. 2009-CR-5043A Honora ble Mary D. Román, J udg e Presiding Opinion by : Sandee B ry an Mar ion, J ustice Sitt ing: Sandee B ry an Mar ion, J ustice

Phy lis J . Speedlin, J ustice Marialy n Ba rnar d, J ustice Deliver ed and F iled: J une 9, 2010 AFF I RMED A j ur y fo un d a pp e lla nt, Gu a da lup e Di a z, g

uil ty of a g g ra vate d r ob be ry

a g a ins t K e nn e th N ob le and ag g ravated robber

y ag ainst Recole Chew. The trial court assessed punishment at f o rt y -five y ear s’ conf

inement. I n a sing le issue on appe al, appe llant asserts the trial court improper ly limit ed his right to cross-examine the t wo complainants about the re lationship he had with them prior to the
ro bb e ry . We a ff

ir m.04

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- 2- RI G HT OF CO NF RO NT AT ION During appellant’ s trial, Kenne th Noble, one o f the c omplainants, had cr iminal charg es pending ag ainst him for his part in the agg ravated kidnaping of appe llant’s fianc é. The kidnaping
oc c ur re d a ft e r t he ro bb e ry . A t tr ia l, a pp e lla nt a tte mpt e d to c ro ss- e xami ne No ble a bo ut t he fa c ts underlying the kidnaping char g e, but the trial court only allowed a

ppellant to question Noble about wh e the r s uc h c ha

rg e s in fa c t w e re pe nd inga nd

wh e the r t

he Sta te ha d e nte re d in to a

ny deal wi th Noble for his testimony at appe llant’s trial. Appellant a lso attempted to cross-e x amine Chew a nd No ble a bo ut t he fa c t th a t No ble wa s a

dr ugde a le r w ho ha d a

n o n- g oin g re la tio ns hip wi th a pp e lla nt,
on th e d e f

e n s iv e th e o r

y th a t th e r o b b e r

y w a s n o t a h o me in v a s io n , b u t in s te a d , w a s th e r e s u lt of a dru g d ea l go n e ba d
. T h e tr i al co u rt re fu s ed t o al l o w ap p el l an tt o en gage i n t h i s l i n e o f q u es t i o n i n g. “The rig ht of cross-e x amination by the ac cused of

a testifying State’ s witness includes the rig ht to impeach the witness with re levant evide nce that migh t refle ct bias, intere st, prejudice, inconsistent statements, traits of cha rac ter a ffe cting cre dibilit y , or evidence that might g o to any impairment or disability

aff ecting the witness’s cr edibility .” Vi rts v . S tat e , 7 3 9 S. W. 2 d

2 5 , 2 9 ( T e x. Cr im. Ap p. 19 87 ). We ult imate ly c on c lud e a pp e lla nt wa s n ot h a rm e d b y

the tr ia l c ourt ’s re fu sa l to allow appe llant to pursue his line of cr oss-examination, even if the tria l court er red. HA RM AN AL YSI S Any err or that improper ly

limit s the rig ht to confr ontation, inc luding the c onstitut ional rig ht to cross-e x amination, is s ubject to a ha rmless err or ana ly sis. I n Sh e lby v . S tat e , the Court of Cr imi na l App e a ls a do pte d the fo llo wi ng a na ly sis to b e do ne wh e n e vid e nc e ha s b e e n e xclu de d v ia the er roneous limitation of cross-e x aminat i o n . 8 19 S.W .2d 544, 547 (Tex. Crim. App. 1991) (adopting analy sis first articulated in D e l a w a r e v . V a n A r s d all , 47 5 U .S. 67 3, 68 4 ( 19 86 )) . F ir st,04

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- 3- assume the damag ing pote ntial of the cr oss-examination was fully rea liz ed. Shelby , 819 S.W .2d at 547
. S ec o n d , wi th that assumption in m ind, reviewthe er ror in conne ction with the following fac tor s : ( 1 ) th e im

p o rta n c e o f th e w it

n e s s ’ te s ti mo n y in th e p r o s e c u ti o n ’ s c a s e ; ( 2 ) w h e ther the testimony was cumulative; (3) the prese nce or absenc e of evidenc e cor roborating or

contra dicting the te sti mony

of the wi tne ss o n ma

te ri a l po int s; ( 4) the e xten t of c ro ss- e xami natio n o the rw ise permitted; and (5) the over all streng th of the prose cution’s ca se. F in al l y , i n l i g ht of the first two prong s, determine if

the er ror wa s harmless beyond a re asonable doubt. Id. To pe rf or m th is a na ly sis , we must revie w the fa cts of this case and the e x cluded e vidence
. 1. F ac ts of t his c as e Chew t estified she and Noble wer e asleep i n their apartment when, at around 9:00 a.m., she hear d the sound of bre aking gl as s i n t h e dini ng room. Be lieving some one had br oken into the apar tment, she awa

kened N oble jus t as a man wear ing a red swe atshirt and ca

rry ing a handg un walked to the door

of their be droom. The man told Chewand Noble to g et out of bed, g o into the living room, a

nd lay down. As they walked into the l iving room, the m an held the g un to Chew’s head. O nce the y

wer e in the living r oom, the man opene d the front door and three other men, one of whom wa s appellant, wa lked into the apar tment. The man wea

ring the re d sweatshirt asked her and Noble to tell the men the location of their mone y and jewe lry
. She said Noble looked at appellant a

nd asked “ is this how it is? ” Appellant responde d, “y es, t his is how i t is.” Appellant then went to their be droom and star ting g etting the ir clothes and shoe s, while the other m en starte d

“ loa din g stu ff

ou t too. ” At so me po int , the man in th e re d s we a tsh ir t ha nd e d h is gun

to a pp e lla nt, wh o h e ld t

he g un ov e r C he w a

nd No ble . Ch e w a

nd No ble we re the n to ld t o g o in to t he bathr oo m. Chew said the man in the r ed sweat s h i rt and appe llant told her and Noble that beca use they knew04

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- 4- the men, “it was dy ing time.” Whil e in the bathr oom, Chew overhe ard the men discussing needing the key s to a car beca

use t heir own car would not start. When they hear d the men leave, Noble w ent upstairs to his mother’s apar tment, g ot one of his guns, a nd went outside. Chew he ard a bout four g unshots. Chew said their bed was flipped ove r, dra wer s were taken out of the burea u, closets wer e emptied, and the dining room table wa s flipped over
. Noble testified to the same seque nce of events a s did Chew. Noble desc ribed his initial
rea ction to appellant’s a

ppear ance in his apar

tment as follows: “At that point, they come, a nd when I rec og nized [appellant], I asked [hi m] , I ’m like, is this how it is, y ou know, y eah, PegBoy , that’s how it is, y ou know what I ’m say i n g , g ive them what they want.” L ater , afte r the police arr ived, Noble and Che w wer e take n in a police c ar to identify a suspect stopped near

their apa rtment, whom the y ide nti fi e d a s a

pp e lla nt. 2. Exc lude d t e st im ony At a be nc h confe re nc e , a

pp e lla nt’ s atto rn e y

argue d N ob le kid

na pe d a pp e lla nt’ s f ianc é in reta liation for the burg lary , which wa s releva nt to the alleg ed on-g oing dispute be tween the two men. Appellant’s attorney

also argued Noble was a dr ug deale r, something went wr ong with the deal he had with appellant, and what transpired in the a partment wa s in connec tion with the drug deal g one bad. 3. V

an Ar sd all ana lys is We f ir st f oc us on No ble ’s te sti mony

and a ssume that th e dam a g ingpo te nti a l of the c ro ssexamination was fully

rea liz ed. In other wor ds, we must a ssume the jury was fully informed of

the fa c ts und e rl y ingthe a lle g e d k idn a pin g a nd un de rl y inga ny

re la tio ns hip be tw e e n a

pp e lla nt a nd No ble wi th r e g a rd

to d ru g de a ls. We t

he n a pp ly the fi ve fa c tor s.04

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- 5- Although N oble was one of the c omplainants, his testimony was c umulative of Chew’ s testimony and ther e wa s other evide nce corrobor ating Noble’s testim ony . I n addition to Noble’s and Chew’s testimony

about w h at happene d, two of Noble’ s sisters also testified to appellant’ s involvement in the robber y . Shaqueida Noble testified she lived with he r mother, sister, and a nother brother in a

n apar tment above Chewand Noble’ s apar tment. O n the morning of the robbe ry , she
wa lke d o uts ide wh e re sh e e nc ounte re d a pp e lla nt w ho pu lle d o ut a

g un , p ut i t to he r h e a d, a nd tol d he r t o g o b a c k in sid e to C he w a nd No ble ’s a

pa rtme nt. She wa s f

or c ed to go in to the bathr oo m, wher e she sa

w Chew, Noble , and her

y oung er sister, L aToy a. One of the men said “if we come out they would kill us or if we we re to say any thing.” Once ever

y thing be came quiet, she and Chew left the bathroom. The next s ound s h e hear d was that of gunshots. At some point after the police
arr ived, Shaqueida an d h er mother we re dr iven, in a police c ar, to a location wher e a suspe ct had been stoppe d. Shaqueida identifie d the man as a p p el l an t
. Shaquieda a lso testified she had, on p re v i o u s o cc as i o n s , s ee n h er b ro t h er an d ap p el l an tt al k i n g. Noble’s other

sister, L aToy a, testified she was upstairs in her apar tment when she he ard noises coming from her

brother’ s apar

tment. She went downstairs, saw the door to his apar

tment open, and walked in. She saw her br other in the ha ll with his hands up. When her br other told her to leave, L aToy a turne d around and saw appellant. She said appellant held a gun to her and patted h e rd o wn , as k i n g i f s h e h ada c el l p h o n e. He t h en o p en edt h e b at h ro o md o o r a n d t o l d h er t o go ins ide wi th h e r b ro the r a

nd Che w. A fe w minute s lat e r, he r s ist e r S ha qu ie da c a me int o th e bathr oo m. She said the men asked for c ar ke y s. When the apar tment became quiet, she a nd her br other wa lked out of the bathroom togethe r, at whic h point her brother went upstairs to g et a gun. L aToy a said he r04

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- 6- br oth e r a nd the me n e xch a ng e d g un

fi re . L a To y a

a lso wa s ta

ke n in a po lic e c a r t o id e nti fy

a su sp e c t, wh om s he ide nti fi e d a s a

pp e lla nt. On cr oss-examination of Noble, Noble stated he knew a ppellant “throug h a fr iend” a nd he
a dmi tte d a

pp e lla nt h a d b e e n to his a

pa rtme nt n ume ro us tim e s. B ut h e de nie d th e re wa s any dis pu te betwee n himself and appellant “as to money that was owe d.” Noble sa id he had owne d his gun f or two or three months, and left it in his m other ’s ap ar t m en t when he move d into the downstairs apar tment. He admitted he ha d not w orked for about one y ear prior to the robber y , but he owned two vehicles, one of which ha d “re al nice r ims.” He admitted g etting robbed and shot at made him ang ry
a nd he wa nte d p e op le punis he d. Ho we ve r, No ble a dmi tte d he sig ne d an a ff ida vit a sk ingthe State to d ro p th e ro bb e ry c ha

rg e s ag a ins t app e lla

nt be c a us e No ble , who wa s in c a rc e rate d at th e tim e , d id not want to be known a s a snitch. Def ense c ounsel then aske d Noble the f ollowing que stion: Q. I sn ’t

it tru e , K e nn e th, th at wha t a c tua lly ha pp e ne d th a t da

y , th e re wa s a dis pu te over m on e y

a nd a lon g wi th o the r p e op le , [a pp e lla nt] w e nt t he re to co ll e c t? I s n ’ t th a t w h a t r e a ll y h a p p e n e d ? I s n ’ t th a t w h y y o usigne d that aff idavit try ing to g et these c ase s dismis sed, bec ause you know that’s the truth? A. No. That’s not true
. Our re view of the rec ord re veals de fense counsel wa s otherwise a ble to c ross-examine Noble, who testified while we aringan ora ng e B exar County

jail jumpsui t. An d , al t h oug h counsel wa s preve nted from ex ploring the pos sibili ty that Noble wa s involved with appellant in drug deals a nd
c ouns e l w a s p re ve nte d f

ro m de lvi ng int o the de ta ils of the a g g ra vate d k idn a

pin g c ha rg e a g a ins t hi m, counsel’s c ross-examination placed be fore the j ury the fact that Noble wa s unemploy ed but owned two vehicles and he kne w appe llant and intera cted with him often. De fense counsel a lso raised the suspicion that a dispute over mone y may have e x isted betwee n appellant a nd Noble.04

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- 7- CO NC LU SION I n light of the fore g oing a naly sis, we c o n cl u de the tria l court’s e rror was ha rmless bey ond
a re asonable doubt. Accor dingly , we overrule appellant’s issue on a ppeal a nd aff irm the trial cour

t’s jud g me nt.

Sandee B ry an Mar ion, J ustice DO NO T PU B L I SH