Court of Appeals of Texas, Second District, Fort Worth
THE 297TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; KERR and PITTMAN, JJ.
T. PITTMAN JUSTICE.
found Appellant Eddie Offiong Ette guilty of the first-degree
offense of misapplying more than $200, 000 of fiduciary
property. See Tex. Penal Code Ann. § 32.45(b),
(c)(7) (West 2016). The jury then assessed Appellant's
punishment at ten years' confinement and a $10, 000 fine,
recommending the suspension of the confinement but not the
fine. In two points, Appellant contends that (1) the trial
court violated his right to confrontation and right to
present a defense by limiting his cross-examination, and (2)
the $10, 000 fine assessed in the written judgment must be
deleted because the trial court's oral pronouncement of
sentence did not mention the fine. Because we hold that the
trial court did not violate Appellant's rights to
confrontation and to present a defense by limiting his
cross-examination of the complainant and we uphold the lawful
fine imposed by the jury, we affirm the trial court's
judgment as corrected.
does not contest the sufficiency of the evidence. The
evidence showed that complainant Nosa Evbuomwan and his wife,
Ann, paid Appellant, who operated an insurance agency, $350,
000 to procure two performance bonds. Appellant sent Nosa
invoices showing that the gross premium for the two bonds was
$379, 000, that he applied a "discount" of $31, 000
to the larger bond, and that his fee for each bond was $1,
000. The Evbuomwans paid the $350, 000, but Appellant failed
to procure the two performance bonds. Instead of then
returning the premiums, he claimed that the entire $350, 000
was his fee and spent the money.
The Trial Court Did Not Abuse Its Discretion or Violate
Appellant's Rights to Confrontation and to Present a
Defense by Limiting His Cross-Examination of Nosa.
Appellant's first point, he contends that the trial court
violated his right to confrontation and to present a defense
when it limited the scope of his cross-examination of Nosa.
Standard of Review
review a trial court's ruling on the admissibility of
evidence under an abuse-of-discretion standard. Johnson
v. State (Johnson I), 490 S.W.3d 895, 908 (Tex. Crim.
App. 2016). A trial court abuses its discretion when its
decision falls outside the zone of reasonable disagreement.
Id. If the trial court's ruling is correct under
any applicable legal theory, we will not disturb it even if
the court gave a wrong or insufficient reason for the ruling.
Id. A trial court's discretion to exclude
evidence comes into play only after the Sixth Amendment right
to cross-examination has been satisfied. Johnson v. State
(Johnson II), 433 S.W.3d 546, 551 (Tex. Crim. App.
Right of Confrontation
Sixth Amendment's Confrontation Clause states that
"[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against
him." U.S. Const. amend. VI. The Confrontation
Clause's primary purpose is to secure for the defendant
the opportunity to cross-examine adverse witnesses because
that is "the principal means by which the believability
of a witness and the truth of his testimony are tested."
Johnson I, 490 S.W.3d at 909 (internal quotation
marks omitted) (quoting Davis v. Alaska, 415 U.S.
308, 316, 94 S.Ct. 1105, 1110 (1974)). Jurors deserve to have
the theory of the defense presented to them "so that
they (can) make an informed judgment as to the weight to
place on (the witness'[s]) testimony." Id.
(internal quotation marks omitted) (quoting Davis,
415 U.S. at 317, 94 S.Ct. at 1111).
Texas Court of Criminal Appeals has held, the Sixth Amendment
right to cross-examine witnesses allows a party to attack the
general credibility of those witnesses "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) (citing Davis, 415 U.S. at 316, 94 S.Ct.
at 1110). A trial court may not prevent a defendant from
pursuing a line of cross-examination which might provide a
reasonable jury with a significantly different impression of
the witness's credibility. Johnson II, 433
S.W.3d at 551.
not within a trial court's discretion to prohibit a
defendant from engaging in otherwise appropriate
cross-examination designed to show a witness's bias.
Id. This check on "a trial court's
discretion to limit cross-examination for bias appropriately
accounts for the fact that . . . expos[ing] . . . a
witness'[s] motivation in testifying is a proper and
important function of the constitutionally protected right of
cross-examination . . . and is always relevant" to the
jury's view of the witness's credibility and the
weight to be given to the witness's testimony.
Id. (internal quotation marks omitted). A trial
court can abuse its discretion by excluding admissible
evidence that the defendant offers to show the
complainant's motive to falsely accuse him. Johnson
I, 490 S.W.3d at 909.
complainant's credibility is central to the State's
case, Texas law also favors admitting evidence that is
relevant to the complainant's bias, interest, or motive
to testify in a particular way. Id. at 910. The
Texas Rules of Evidence generally "permit (a) defendant
to cross-examine a witness for his purported bias, interest,
and motive without undue limitation or arbitrary
prohibition." Id. (internal quotation marks
omitted) (quoting Hammer, 296 S.W.3d at 563).
"the right to cross-examine is not unqualified."
Id. at 909. A trial court may restrict "the
scope and extent of cross-examination so long as those"
restrictions do not chip away at "the Confrontation
Clause's guarantee of an opportunity for effective
cross-examination." Id. (internal quotation
marks omitted) (quoting Johnson II, 433 S.W.3d at
552). The defendant is not entitled to cross-examine a
witness in whatever way and to whatever extent he might wish.
Id. at 909-10. Trial courts have "wide latitude
under the Confrontation Clause to . . . restrict . . .
cross-examination based on such criteria as harassment,
prejudice, confusion of the issues, the witness's safety,
or interrogation that is repetitive or only marginally
relevant." Id. at 910 (internal quotation marks
omitted) (quoting Delaware v. Van Arsdall, 475 U.S.
673, 679, 106 S.Ct. 1431, 1435 (1986)). A defendant does not
have an absolute right to impeach a witness's general
credibility. Id. (citing Hammer, 296 S.W.3d
at 562- 63).
Right to Present a Defense
Supreme Court has recognized that under the United States
Constitution, whether through "the Due Process Clause of
the Fourteenth Amendment or the Compulsory Process or
Confrontation Clauses of the Sixth Amendment, " a
defendant in a criminal case is entitled to "a
meaningful opportunity to present a complete defense."
Holmes v. State, 323 S.W.3d 163, 173 (Tex. Crim.
App. 2010) (op. on reh'g) (internal quotation marks
omitted) (quoting Holmes v. South Carolina, 547 U.S.
319, 324, 126 S.Ct. 1727, 1731 (2006)). That right
encompasses calling his own witnesses and cross-examining the
State's. See id.
and Ann bought a piece of property and had it platted into
three lots. They wanted to build two commercial buildings,
one at 1940 Enchanted Way and the other at 1900 Enchanted Way
in Grapevine, Texas. Ann met with Appellant because the
couple needed a performance bond for the construction of each
dispute leading to Appellant's indictment was whether his
fee for the two bonds was $2, 000 or $350, 000. The jury
heard testimony that bond fees must be disclosed in writing.
Appellant testified at trial and admitted that the
paperwork-written invoices that he generated-showed that his
total fee was only $2, 000.
The Excluded Evidence
sought to impeach Nosa by demonstrating that he had made
contradictory claims about whether a $900, 000 debt on the
third lot- 1920 Enchanted Way-had been paid. Before the jury,
Nosa testified that he had repaid the indebtedness, but the
debt was also listed in a bankruptcy petition. Outside the
jury's presence, the following occurred:
[DEFENSE COUNSEL]: Well, I mean, it-[the $900, 000] was
listed in a bankruptcy petition, which is kind of not the
same as being paid back.
THE COURT: I don't know if it was paid back or not. It
could have been paid-still just because it was listed in a
bankruptcy petition doesn't mean necessarily that it was
not paid back but go ahead, what's the-what's the
relevance here[?] . . . I take it you want to introduce the
bankruptcy petition[, ] correct[?]
[DEFENSE COUNSEL]: Well, I, you know, yeah, of course, I
would like to do that but I think that I at least get to
impeach him with it.
THE COURT: So you're offering it for impeachment value or
are you offering it for-
[DEFENSE COUNSEL]: For impeachment, Your Honor.
[PROSECUTOR]: Your Honor, we would object that it would be
improper impeachment items and it is not relevant. The
reason, it would be improper impeachment is, since the
bankruptcy was discharged, that's not evidence the loan
was not paid back, that is evidence of nothing. We already
know there is $900, 000 indebtedness. This proves it was-it
adds nothing to the argument, nothing to the case. If he says
he paid the money back, that's the relevant question,
not, well, didn't you still owe it in 2009.
THE COURT: Why don't you develop it a little more on
cross outside the presence of the jury, [counsel]?
VOIR DIRE EXAMINATION
BY [DEFENSE COUNSEL]:
Q. About June 1st of 2009, did Agape World Group
Incorporated file a petition in bankruptcy?
A. I don't remember the date but yes . . . .
Q. And in this petition, were there listed certain creditors?
Q. . . . . Surely, you knew that this bankruptcy was being
Q. And then listed in Schedule A under Real Property, there
is 1920 Enchanted Way, $1.5 million which you presumed was
Q. And the amount of secured claim was $900, 000, isn't
Q. And, in fact, 19-1920 Enchanted Way, as of June 1st of
2009, did you-all still own 1920 Enchanted Way?
Q. And so you listed that as an asset, and you listed the
amount of secured claim as $900, 000?
Q. And so take us through how you paid it back. Did this get
discharged in bankruptcy or did that-that get ...