IN THE

TENTH COURT OF APPEALS

No. 10-92-215-CR

     PAUL LOA,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 92-61-C

O P I N I O N

      Paul Loa appeals his conviction for burglary of a habitation. Loa was charged by indictment with burglary of a house on October 3, 1991. He was found guilty by a jury, and, as a result of two prior felony convictions that enhanced the range of punishment, the jury assessed punishment at life in prison. Because the trial court erred in excluding evidence that a state's witness was under arrest for aggravated robbery and aggravated kidnapping at the time her statement was given to police officers, we reverse the judgment and remand the cause for a new trial.

      Loa's cousin, Carol Bare, was called to testify for the State. According to Bare, Loa occasionally came to visit her when he was in town to see a girlfriend. Bare testified that one day when Loa was at her apartment she had a conversation on the porch with a neighbor, Cynthia Hernandez. Hernandez planned to pick her sister up at work at 1:30 p.m., and she agreed to give Bare a ride when she returned. Bare testified that, after the conversation, Loa, who could have overheard the conversation, left with Nellie Herrera and Ezekiel Larado. Bare also testified that she talked with Loa the next day, and he told her that he and Larado had burglarized a house somewhere on 30th and Maple. According to Bare, Hernandez also told her the next day that the house her sister cleaned had been burglarized.

      On cross-examination, Bare testified that on November 11, 1991, she gave a statement to police officers concerning her conversation with Hernandez on October 3. According to Bare's statement, she and Hernandez were talking about the "fancy house" on 30th and Maple where her sister worked, and that the people were rich and had nice things in the house. Loa's attorney was allowed to make, in the absence of the jury, an offer of proof to preserve Bare's testimony that she was in jail at the time the November 11 statement was made. Bare testified that she had been arrested with Loa and his sister, Priscilla Free, for the aggravated robbery and aggravated kidnapping of Todd Quinn. The charges against all three, however, were later dropped. The court sustained the State's objection to the offered testimony. As a result, Bare was not allowed to testify in the presence of the jury that she had been under arrest for aggravated robbery and aggravated kidnapping at the time her statement was given to the police.

      On appeal, Loa complains that the exclusion of the offered testimony was an impermissible restriction of his right to confront and cross-examine the State's witness because it prevented him from establishing a bias or motive for Bare to testify against him. It is well established that great latitude should be allowed the accused in showing any fact that would tend to establish ill feeling, bias, motive, and animus on the part of any witness testifying against him. In Evans v. State, the court found that the accuracy and truthfulness of the witness' testimony was a key element in the State's case. According to the court in Evans:

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'] vulnerable status as an indictee, as well as of [the witness'] possible concern that he might be a suspect in the offense.

      Because of the possibility that the charges against Bare could have been refiled, the fact that the charges had been dismissed at the time of her testimony is not significant. Nor is the fact that Bare was a suspect in another case rather than in the case on trial. In sustaining the State's objection to Bare's testimony, the court expressed concern that if Loa offered Bare's testimony that she had been under arrest for aggravated robbery and aggravated kidnapping, the State would have been entitled to show that Loa was also in jail on the same charges. Although the trial court was appropriately concerned about the admission of extraneous offenses against Loa, those concerns should have been addressed by carefully permitting Loa to fully explore the possible prejudices and biases of Bare without allowing him to cross-examination her on the details of the offense. Instead of admonishing Bare not to make any references to Loa's involvement in the extraneous offense, the court impermissibly restricted Loa's right to effective cross-examination, which is a "constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." Accordingly, we cannot determine beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment. Therefore, we sustain point of error five.

      Because the error complained of in points one through three are not likely to recur on remand, we will not consider points one through three. Furthermore, Loa's failure to request an instruction to disregard the non-responsive answer complained of in point four waived that complaint. Therefore, without reaching Loa's remaining points, we reverse the judgment and remand the cause for a new trial.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Reversed and remanded

Opinion delivered and filed March 31, 1993

Do not publish