Opinion filed May 23, 2019

In The

Eleventh Court of Appeals __________

No. 11-17-00118-CR

__________

JOSE JACINTO AMAYA SOTELO, Appellant

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR24057

M E M O R A N D U M O P I N I O N

After a bench trial, the trial court convicted Jose Jacinto Amaya Sotelo of 

felony driving while intoxicated and sentenced him to confinement for a term of 

seven years in the Institutional Division of the Texas Department of Criminal 

Justice. See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2018). Appellant brings 

two issues on appeal. Appellant contends that (1) the trial court violated his Sixth 
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Amendment right to confrontation when it improperly limited Appellant’s crossexamination of the State’s witness, Jeremy Seider, and (2) the trial court erred when 

it failed to strike Seider’s direct testimony. We affirm. 

Background Facts

Brownwood Police Officer Jeremy Seider observed a vehicle with a canceled 

license plate make a wide right turn. Upon stopping the vehicle, Seider identified 

Appellant as the driver of the vehicle and Carlos Villanueva as a passenger. Seider 

noticed that Appellant’s speech was slurred, as well as Villanueva’s speech, and that

they both had difficulty finding their identification. Seider spoke to them in English,

and Appellant did not appear to have any difficulty communicating with Seider.

After Seider asked Appellant to step out of the vehicle, Seider noticed the smell of 

alcohol and observed Appellant stagger as Appellant walked toward Seider’s patrol 

vehicle. Appellant admitted to Seider that he had consumed “two or three drinks.”

Seider conducted a horizontal gaze nystagmus (HGN) test on Appellant. 

During the test, Appellant continued to move his head after Seider instructed him to 

move his “eyes only,” and he “sway[ed] quite a bit side to side and back and forth.”

Seider testified that Appellant showed six of six possible clues for intoxication on 

the HGN test. Seider then gave Appellant the instructions for the walk-and-turn test, 

but Appellant claimed that he did not understand English. Seider gave the 

instructions again, partially in Spanish, and Appellant performed the walk-and-turn

test. Seider testified that Appellant showed five of eight possible clues for 

intoxication on the walk-and-turn test. 

Seider arrested Appellant and transported him to the Law Enforcement Center 

where Brownwood Police Officer Jose Contreras administered additional sobriety 

tests in Spanish. Based on Appellant’s performance on those tests, Appellant was 
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taken to the hospital for a blood draw. Because Appellant denied consent for the 

blood draw, Seider obtained a warrant to conduct the draw.

Officer Contreras testified that he met Seider and Appellant in the Law 

Enforcement Center parking lot because Seider asked Officer Contreras to give 

Appellant the instructions for the walk-and-turn and one-leg-stand tests in Spanish. 

Officer Contreras instructed Appellant in Spanish, and Appellant informed 

Officer Contreras that Appellant understood. Officer Contreras noticed the 

following signs of intoxication during Appellant’s performance on the walk-andturn test: Appellant started walking before he received all the instructions, he failed 

to touch heel to toe a few times, he used his hands for balance instead of keeping 

them to his side, he did not take the correct number of steps, and he did not turn 

properly. Officer Contreras also noticed signs of intoxication during Appellant’s 

performance on the one-leg-stand test: Appellant put his foot down twice and he was 

using his hands for balance. Based on Appellant’s performance, Officer Contreras 

believed that Appellant was intoxicated.

The State also offered into evidence Seider’s dashcam recording. The

recording captured Appellant driving, Seider stating that the vehicle had the wrong 

plates, and Appellant admitting that he had been drinking. The recording also 

captured the field sobriety tests and Appellant’s arrest. The trial court later struck 

the blood draw results because the search warrant affidavit did not reflect the time 

that Seider observed Appellant driving. 

Analysis

In his first issue, Appellant contends that the trial court violated his Sixth 

Amendment right to confrontation when it improperly limited Appellant’s crossexamination of Seider. Appellant contends that the trial court should have allowed 
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Appellant to fully cross-examine Seider regarding some pending criminal charges

against Seider in Comanche County because they were relevant to show his bias and 

motive to testify. We disagree. 

We review a trial court’s decision to admit or exclude evidence under an abuse 

of discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 

2016) (citing Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011)). A 

trial judge abuses his discretion when his decision falls outside the zone of 

reasonable disagreement. Id. (citing Martinez v. State, 327 S.W.3d 727, 736 (Tex.

Crim. App. 2010)).

After Appellant’s arrest for the underlying offense, but before trial, Seider, 

along with seven codefendants, was indicted in Comanche County for the following 

three felony offenses: aggravated assault with a deadly weapon, unlawful restraint, 

and deadly conduct. All the codefendants were Seider’s relatives. At the time of 

trial, Seider was still under indictment in Comanche County. He was not an active 

Brownwood police officer because he had been suspended without pay. 

At the beginning of trial, the trial court considered Appellant’s preliminary 

inquiry with respect to permitting Seider to testify at trial. Seider indicated that he 

intended to invoke his Fifth Amendment right against self-incrimination regarding 

the pending charges in Comanche County. Appellant’s counsel asserted that, if the 

trial court did not allow him to fully cross-examine Seider on the pending charges, 

Seider should not be permitted to testify. The trial court determined that it would 

permit Seider to testify and that it would rule on individual questions that Seider 

might refuse to answer by invoking his Fifth Amendment privilege. 

Seider testified that he would not receive any consideration with respect to the 

charges in Comanche County for testifying in Appellant’s case. He acknowledged 
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that he was under indictment and that the charges that he and his relatives were 

facing were serious. Seider described how he was related to the other codefendants 

and testified that he would help them if they needed help. 

On cross-examination, Seider conceded that, if he was convicted, he would 

lose his job as a police officer and would possibly go to jail. He testified that being 

a police officer was a lifelong dream of his and that he ultimately hoped to get his 

job back at the Brownwood Police Department but that he needed a dismissal or an 

acquittal of the Comanche County charges. Seider also conceded that sometimes 

there is a benefit for cooperating with other investigations. 

Although Seider answered some questions during cross-examination, Seider 

invoked the Fifth Amendment privilege numerous times. On two occasions, Seider 

attempted to invoke his privilege, but the trial court instructed him to answer the 

questions. However, the trial court refused to compel Seider to answer the following 

questions, which all addressed the pending charges in Comanche County: 

• “What are your feelings about the case in Comanche? Are you 

concerned about it?” 

• “What did you tell your superiors about what had happened over 

in Comanche . . . ?” 

• “During [your] statement with [the Texas] Ranger . . . did you 

have specific discussions about your other family members who 

were involved in this?” 

• “[I]n the statement did you describe what roles everyone played 

in what happened . . . ?” 

• “Were there guns involved in the charge?” 
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• “Did you have a weapon . . . ? [D]id you have a gun when you 

and the other seven - -” 

• “Did you have your service weapon with you at that time?”

• “Were you wearing your badge at the time this happened?”

• “Were you wearing your uniform when this happened?”

• “[W]ere you holding yourself out as someone involved in law 

enforcement when you showed up that day?” 

• “Who shot into the back of the car as it drove away?” 

• “Were you a part of . . . an interrogation while people restraining 

some other folks; some of the group were talking to someone 

trying to get answers to some questions? Were you part of the 

group that was doing the interrogating?”

The trial court explained its reasoning for refusing to compel Seider to answer these 

questions: “I will allow certain pointed questions . . . if there’s something that would 

rise to the level of showing either some bias or some other issue . . . , but I’m not 

going to just open it up to ‘Tell me what you know about this case and the underlying 

facts.’” Appellant later moved to strike Seider’s direct testimony based upon 

Seider’s invocation of his Fifth Amendment privilege. The trial court denied 

Appellant’s request. 

The State called Comanche County District Attorney Adam Sibley as a 

witness. He testified that he did not have a deal with Seider for any consideration if 

Seider testified in Appellant’s case. Sibley further testified that he would not be 

willing to enter into any future agreements with Seider. Sibley stated that Seider 

provided a statement to a Texas Ranger regarding the pending charges and conceded 
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that Seider was cooperative. However, Sibley believed that, when Seider made this 

statement, Seider withheld facts relevant to the investigation and had not volunteered 

to provide any additional information. 

In a bill of exception, Sibley testified about the facts of Seider’s pending 

charges. Sibley testified that he believed that Seider withheld the identity of the 

shooter from the Texas Ranger to protect the family member who shot the gun. 

Although the charges were serious, Sibley had offered all the codefendants 

probation, but none had accepted. 

The Sixth Amendment to the U.S. Constitution guarantees the right of an 

accused in a criminal prosecution to confront the witnesses against him. U.S.CONST.

amend. VI; Id. at 909. “The main purpose behind the Confrontation Clause is to 

secure for the opposing party the opportunity of cross-examination because that is 

‘the principal means by which the believability of a witness and the truth of his 

testimony are tested.’” Johnson, 490 S.W.3d at 909 (quoting Davis v. Alaska, 415 

U.S. 308, 316 (1974)). The Sixth Amendment right to cross-examine a witness 

allows a party to attack the general credibility of that witness or to show their 

possible bias, self-interest, or motives in testifying. Hammer v. State, 296 S.W.3d 

555, 561 (Tex. Crim. App. 2009). However, a trial judge may limit the scope and 

extent of cross-examination, so long as those limits do not operate to infringe upon 

the Confrontation Clause’s guarantee of an opportunity for effective crossexamination. Johnson, 490 S.W.3d at 909 (citing Johnson v. State, 433 S.W.3d 546, 

551 (Tex. Crim. App. 2014)). A trial judge retains wide latitude to impose 

reasonable limits on such cross-examination to avoid harassment, prejudice, 

confusion of the issues, endangering the witness, marginally relevant evidence, or 

where the subject of the examination has been exhausted. Irby v. State, 327 S.W.3d 
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138, 145 (Tex. Crim. App. 2010) (citing Delaware v. Van Arsdall, 475 U.S. 673, 

679 (1986)).

This appeal involves a common scenario—an attempt to impeach a 

prosecution witness by cross-examining him about criminal charges pending against 

him. See Johnson, 433 S.W.3d 551–53. A defendant may elicit on crossexamination facts intended to demonstrate a witness’s vulnerable relationship with 

the State or to show a witness’s bias. TEX. R. EVID. 613(b); Carroll v. State, 916 

S.W.2d 494, 500 (Tex. Crim. App. 1996). “Exposing a witness’s motivation to 

testify for or against the accused or the State is a proper and important purpose of 

cross-examination.” Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App. 

1998). Parties are allowed great latitude to show “any fact which would or might 

tend to establish ill feeling, bias, motive and animus on the part of the witness.” Id.

(quoting London v. State, 739 S.W.2d 842, 846 (Tex. Crim. App. 1987)). “In order

to impeach a witness with evidence of pending criminal actions, the proponent of 

the evidence must establish that the evidence is relevant.” Id. (citing Carroll, 916 

S.W.2d at 494; London, 739 S.W.2d at 846–48). 

The right to cross-examine is not unqualified. Johnson, 490 S.W.3d at 909. 

“A trial judge may limit the scope and extent of cross-examination, so long as those 

limits do not operate to infringe upon the Confrontation Clause’s guarantee of ‘an 

opportunity for effective cross-examination.’” Id. (quoting Johnson, 433 S.W.3d at 

552). “The defendant is not entitled to ‘cross-examination that is effective in 

whatever way, and to whatever extent,’ he might wish.” Id. (quoting Johnson, 433 

S.W.3d at 552). 

This is a not a case where the trial court prohibited Appellant from making 

any reference to the pending criminal charges against Seider during his cross-
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examination as was the case in Carpenter and Irby. Irby, 327 S.W.3d at 140; 

Carpenter, 979 S.W.2d at 633–34; see Johnson, 433 S.W.3d at 553 (discussing 

Carpenter and Irby). To the contrary, the trial court permitted Appellant to obtain 

answers from Seider pertaining to the general nature of the charges in Comanche 

County, the ramifications of the pending charges on his employment as a 

Brownwood police officer, and the possibility that Seider would obtain some benefit 

from testifying in Appellant’s case. Furthermore, the Comanche County District 

Attorney offered additional testimony about the nature of the Comanche County 

charges pending against Seider. A copy of the indictment against Seider from 

Comanche County was admitted into evidence during Sibley’s testimony. 

Accordingly, the trial court permitted Appellant to explore areas indicating possible 

bias by Seider to “curry favor” with the State by offering testimony against

Appellant. See Johnson, 433 S.W.3d at 554–55.

Conversely, the trial court did not require Seider to answer questions from 

Appellant’s trial counsel about some of the details of his pending charges in 

Comanche County. In this regard, Seider invoked his Fifth Amendment privilege 

against self-incrimination. There is no allegation that Seider improperly invoked his 

Fifth Amendment privilege or waived it. When a defendant’s Sixth Amendment 

rights intersect with a witness’s Fifth Amendment privilege, “[a] valid assertion of 

the witness’s Fifth Amendment rights justifies a refusal to testify despite the 

defendant’s Sixth Amendment rights.” United States v. Ramos, 537 F.3d 439, 448 

(5th Cir. 2008) (quoting United States v. Goodwin, 625 F.2d 693, 700 (5th Cir.

1980)); see Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986) (an 

individual’s constitutional privilege against self-incrimination overrides a 

defendant’s constitutional right to compulsory process of witnesses). Furthermore, 
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even if Seider had been convicted of the offenses for which he was indicted in 

Comanche County, the details of those offenses would not be admissible. See 

Mays v. State, 726 S.W.2d 937, 953 (Tex. Crim. App. 1986) (“[A]lthough the fact 

that a witness has been previously convicted of a crime may be introduced into 

evidence, the details of that offense are inadmissible.”); Andrews v. State, 429 

S.W.3d 849, 858 (Tex. App.—Texarkana 2014, pet. ref’d).

We conclude that the trial court did not err by permitting Seider to invoke his 

Fifth Amendment privilege to the questions that Appellant sought to ask him on 

cross-examination. As previously noted, Seider’s Fifth Amendment privilege 

prevails over Appellant’s Sixth Amendment rights. Furthermore, the questions to 

which the trial court permitted Seider to invoke his Fifth Amendment privilege were 

not necessary to further expound upon his potential bias as a witness for the State 

because there were already ample details before the trial court about the pending 

charges in Comanche County. We overrule Appellant’s first issue. 

In his second issue, Appellant contends that the trial court erred when it failed 

to strike Seider’s direct testimony. When a witness invokes his Fifth Amendment 

right against self-incrimination during cross-examination, “all or part of that 

witness’s direct testimony may be subject to a motion to strike.” Fountain v. United 

States, 384 F.2d 624, 628 (5th Cir. 1967); see Keller v. State, 662 S.W.2d 362, 364 

(Tex. Crim. App. 1984). The “ultimate inquiry is whether the defendant has been 

deprived of his right to test the truth of the direct testimony.” Fountain, 384 F.2d at 

628. “If he has, so much of the direct testimony as cannot be subjected to sufficient 

inquiry must be struck.” Id. If the witness invokes the privilege only as to collateral 

matters, however, direct testimony need not be struck. Id. A collateral question is 
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one that seeks only to test a witness’s general credibility or relates to facts that are 

irrelevant to the issues at trial. Keller, 662 S.W.2d at 364.

The underlying facts of the pending charges against Seider were collateral 

matters in relation to the allegation that Appellant committed felony driving while 

intoxicated. Seider did not refuse to answer questions on cross-examination 

pertaining to the allegations against Appellant. The pending criminal charges in 

Comanche County sought to test Seider’s general credibility by showing bias on his 

part. As such, they concern a collateral matter. Thus, the trial court did not err in 

refusing to strike Seider’s direct testimony. We overrule Appellant’s second issue.

This Court’s Ruling

We affirm the judgment of the trial court. 

JOHN M. BAILEY 

CHIEF JUSTICE

May 23, 2019

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

 1

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.