Opinion
No. 06-08-00013-CR
Date Submitted: August 27, 2008.
Date Decided: August 28, 2008. DO NOT PUBLISH.
On Appeal from the County Court at Law, Harrison County, Texas, Trial Court No. 2006-1260.
Before MORRISS, C.J., CARTER and MOSELEY, JJ. Memorandum Opinion by Justice CARTER.
MEMORANDUM OPINION
A jury found Johnny R. Rogers guilty of driving while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04 (Vernon 2003). The jury assessed Rogers' punishment at 180 days in the county jail, but further recommended the trial court suspend imposition of that sentence. The trial court entered a judgment in accordance with the jury's verdict and released Rogers to community supervision for a period of two years. Rogers now appeals, raising a single appellate issue: that the trial court erred by permitting the State to cross-examine him about his failure to bring additional witnesses to corroborate his trial testimony. We overrule this issue and affirm the trial court's judgment. At trial, the following exchange occurred during the State's cross-examination of Rogers:
[By Rogers:] That night I had gone to visit a friend earlier in the evening, in the night. And I had spent time there. I was feeling okay. I did — I had my medication in the car that would help me reduce my [blood] sugar. I had had something to eat at home. I felt normal and I was trying to lift her up, and so we went out, and it was on the weekend, and I felt okay.
Q: Okay.
A: I didn't feel like —
Q: And nobody but you is here to testify about that. You didn't ask her to come to substantiate and corroborate all that stuff? It makes for a greet [sic] story.
A: I didn't know that I needed to, sir.
Q: Didn't know that you needed to. Today is your trial, your day in Court, your lawyer told you that the State is trying to convict you of DWI, that you broke the law, and you didn't find it important to gather every piece of evidence in your favor.
[Defense counsel:] Your Honor, we're going to object to this line of questioning. It is an attempt on behalf of the State of Texas to put the burden on the defense to prove something when the defense does not have to prove a thing. The burden is on them.
[State's counsel:] Your Honor, when —
THE COURT: Overruled.
Q: You didn't find it important to do that, did you?
[Defense counsel:] Asked and answered, Your Honor.
THE COURT: Overruled.
Q: You can answer the question.
A: I left that to the judgment of my counsel.
[State's counsel:] Pass the witness, Mr. Rodgers.It is this passage that Rogers now contends amounts to an attempt by the State to shift the burden of proof from having the State show Rogers' guilt to have the accused prove his own innocence. Rogers' appellate issue is more properly viewed as a challenge to the admissibility of his own testimonial response to the State's question. See Caron v. State, 162 S.W.3d 614, 617 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (describing as "unfounded" appellant's assertion that State's cross-examination questions served to shift burden of proof and reviewing issue for error in admitting evidence). We review a trial court's decision to admit or exclude evidence for abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App. 1990); Bradshaw v. State, 244 S.W.3d 490, 499 (Tex.App.-Texarkana 2007, pet. denied). We will not reverse a trial court's ruling regarding the admissibility of evidence unless that decision falls outside the wide zone of reasonable disagreement. Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391; Bradshaw, 244 S.W.3d at 499. "The Texas Rules of Evidence generally favor the admissibility of all relevant evidence at trial." Bradshaw, 244 S.W.3d at 499. The issue of corroboration, which is always at issue any time any person testifies, goes to that witness' credibility. The credibility of testimonial witnesses, whether they be for the State or for the defense, may be challenged by any party. Tex. R. Evid. 607; see also Tex. R. Evid. 611(b). This ability to attack a testimonial witness' credibility necessarily includes the ability to attack the defendant's credibility, should he or she testify. Id.; Tex. R. Evid. 611(b); Adams v. State, 936 S.W.2d 313, 317 (Tex.App.-Tyler 1996, pet. ref'd); see also Huffman v. State, 12 S.W. 588, 589 (Tex.Crim.App. 1889) (defendant subject to precisely same challenges to testimonial credibility as any other witness). We read the State's cross-examination questions about the lack of corroborating evidence as an attack on Rogers' credibility, not as an attempt to shift the burden of proof at trial. Rogers himself admits in his appellate brief that his own credibility was "absolutely critical" to his defense. Accordingly, the State's cross-examination questions of Rogers amounted to a permissible attack on the defendant's testimonial credibility. We thus conclude the trial court did not abuse its discretion by permitting such questioning over trial counsel's objections. We overrule Rogers' sole point of error and affirm the trial court's judgment.
To the extent that Rogers also attempts to claim on appeal that the State's cross-examination questions amounted to an attack on his attorney-client relationship with defense counsel, Rogers did not preserve such a claim for appellate review by first raising an objection at trial. See Tex. R. App. P. 33.1 (a)(1)(A); Hardy v. State, 187 S.W.3d 232, 235 (Tex.App.-Texarkana 2006, pet. ref'd).