Spain v. State (585 S.W.2d 705, 1979)

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from conviction for theft over $10,000. V.T.C.A. Penal Code, Sec. 31.03. Punishment was assessed by the jury at ten years, with the recommendation of probation.

Appellant contends that the trial court’s refusal to allow cross-examination of the State’s witness Garret Gilmore, in order to establish his bias or motive in testifying, denied appellant his constitutional right to confrontation. U.S.Const. Amend. VI; Tex.Const., Art. I, Sec. 10. The evidence germane to disposition of this contention will be reviewed below.

Appellant’s wife, Peggy Spain, was employed by Producer’s Grain Corporation (Producer’s) as a secretary. Her duties included countersigning checks issued by Producer’s to pay the ongoing expenses and purchases of the business. James Warwick was bookkeeper and office manager for Producer’s in the office in which Peggy Spain worked, and was also responsible for cosigning checks.

According to Warwick, Peggy Spain came to him and asked to borrow money from Producer’s to pay some pressing obligations. Warwick testified that he was unable to loan her any money from company funds, but upon her suggestion entered into a scheme with Peggy Spain to defraud the company of the needed funds. Warwick contacted Garret Gilmore to help with this scheme. Gilmore agreed to set up a bank account in which he was to deposit checks that Warwick would issue on Producer’s account, countersigned by Peggy Spain. These checks were first issued as payment for non-existent building supplies. Later, the checks were issued as payment for cattle feed which was never received.

Gilmore would deposit the checks to his account, and then write checks payable to Warwick, Peggy Spain and appellant. A total of $658,000.00 was obtained from Producer’s in this manner. Warwick estimated that of this total he received approximately $175,000.00, his brother $5,000.00, Gilmore approximately $100,000.00, and Peggy Spain and appellant approximately $350,-000.00.

Gilmore testified extensively regarding his part in the offense. He stated that he acted as a conduit for the embezzled funds. At the end of his direct testimony, the jury was retired and the defense counsel made the following request:

“MR. FAIRWEATHER: Your Honor, the Defense would propose to ask the following questions of the witness, Garret Gilmore, for two purposes.

“Number One, we wish to question the witness concerning his reasoning and motivation for testifying for the prosecution, to the effect to see whether or not there is any agreement implied or expressed between him and the District Attorney’s Office in return for his testimony. And I think this testimony is relevant under the holding of the Burkhalter Case, as to the bias or prejudice of a witness.

“We further wish to ask this witness whether or not he was convicted of the offense of theft over $10,000.00, and whether or not he received a punishment of a judgment for five years Probation in this case. We think this is relevant under the ordinary rules of impeachment of a witness.

“THE COURT: All right. Fine.”

Gilmore testified outside the presence of the jury that he was arrested for his part in the instant offense and remained in jail for four or five hours. He was freed on a pre-trial release. The gist of the remainder, of his testimony is revealed by the following excerpts:

“Q. You turned yourself in approximately one week after the theft had been discovered by PGC, didn’t you?

A. I am not sure.

Approximately? O*

I don’t remember, really remember the dates.