The Right to Impeach a Witness In Texas

In Callins v. State, 780 S.W.2d 176, 196 (Tex. Crim. App. 1986), the Court held that because the defendant failed to "lay the necessary predicate that would invoke the right of confrontation," the defendant was not denied the right to impeach a State's witness on the basis of his deferred adjudication probation status. Id. The Callins Court cited Davis for the proposition that the defendant must show that a witness "testified against him as a result of bias, motive or ill will emanating from his status of deferred adjudication." Id. In Jones v. State, 843 S.W.2d 487 (Tex. Crim. App. 1992) this Court cited Callins when it stated that "denying a defendant the right to impeach a witness on the basis of the witness' deferred adjudication probation [did] not deny the defendant his constitutional right of confrontation." 843 S.W.2d at 496. Today, we conclude that the holding in Jones is inconsistent with both prior and later opinions from this Court. Before the holdings in Callins and Jones, this Court held in Evans that the defendants were denied the right of effective cross-examination when they were not allowed to cross-examine a State's witness about his pending charge of sodomy. 519 S.W.2d at 873. The defendants did not want to question the witness on the pending indictment for general impeachment purposes; they wanted to cross-examine him to show bias, prejudice, interest and motive of the witness in testifying as he did. Id. at 871. This Court stated that the "claim of bias, interest and motive which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of [the witness's] vulnerable status as an indictee, as well as [the witness's] possible concern that he might be a suspect in the offense." Id. at 873. Since Jones, this Court has discussed the appropriate areas for cross-examination. In Carroll v. State, 916 S.W.2d 494 (Tex. Crim. App. 1996), the Court discussed whether a witness may be cross-examined concerning pending criminal charges. We concluded that the existence of an agreement between the State and the witness was not determinative. Id. at 500. Rather, "what [was] determinative [was] whether [the defendant] was allowed to demonstrate any possible bias or interest that [the witness] may hold to testify on the State's behalf." Id. The defendant in Carroll should have been permitted to cross-examine the State's witness regarding his pending charges; it "was appropriate to demonstrate [the witness's] potential motive, bias or interest to testify for the State." Id. More recently, court indicated in Moreno v. State, 22 S.W.3d 482 (Tex. Crim. App. 1999), that while unadjudicated crimes were not admissible to show bad character for truthfulness under Texas Rule of Evidence 609, "evidence that involves unadjudicated crimes could be admissible to show a witness's bias or interest in the particular case. Evidence that a witness whom the State calls is subject to a criminal charge, or is on probation, can be used to show the bias or interest of the witness in helping the State." Id. at 485-86.