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Ette v. State

Court of Appeals of Texas, Second District, Fort Worth

May 18, 2017






         A jury 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).[1] 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.

         I. Background Facts

         Appellant 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.

         II. Discussion

         A. 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.

         In 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. We disagree.

         1. Standard of Review

         We 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. 2014).

         2. Right of Confrontation

         The 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).

         As the 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.

         It is 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.

         If a 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).

         But "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).

         3. Right to Present a Defense

         The 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.

         4. Analysis

         a. Relevant Facts

         Nosa 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 building.

         The 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.

         b. The Excluded Evidence

         Appellant 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]?
Q. About June 1st of 2009, did Agape World Group
Incorporated[2] file a petition in bankruptcy?
A. I don't remember the date but yes . . . .
Q. And in this petition, were there listed certain creditors? Yes?
A. Yes.
Q. . . . . Surely, you knew that this bankruptcy was being filed, right?
A. Yes.
Q. And then listed in Schedule A under Real Property, there is 1920 Enchanted Way, $1.5 million which you presumed was the value?
A. Yes.
Q. And the amount of secured claim was $900, 000, isn't that true?
A. Yes.
Q. And, in fact, 19-1920 Enchanted Way, as of June 1st of 2009, did you-all still own 1920 Enchanted Way?
A. Yes.
Q. And so you listed that as an asset, and you listed the amount of secured claim as $900, 000?
A. Correct.
Q. And so take us through how you paid it back. Did this get discharged in bankruptcy or did that-that get ...

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