COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ ADRIAN DIAZ, No. 08-10-00068-CR § Appellant, Appeal from the § V. 243rd Judicial District Court § THE STATE OF TEXAS, of El Paso County, Texas § Appellee. (TC# 20080D05623) §
§
OPINION
Adrian Diaz appeals his conviction for family violence assault. In a single issue,
Appellant contends the trial court abused its discretion by permitting the State to impeach the
alleged victim of the offense with a rebuttal witness. Finding no reversible error, the trial court’s
judgment will be affirmed.
BACKGROUND
Appellant was indicted in November 2008, for assaulting his girlfriend, Ms. Lisset
Contreras. During trial, the State offered the testimony of three El Paso Police Officers, Jerry
Obptande, Robert Thomas, and James Powell. Officer Obptande testified that on October 5,
2008, he and his partner, Officer Thomas were dispatched to an apartment complex in Northeast
El Paso in response to a report that an assault was in progress. Officer Powell was already on the
scene. When Officers Obptande and Thomas arrived, they followed Officer Powell toward the
back of the complex where he had heard a woman scream in distress. When they reached the back of the building, Officers Obptande and Thomas pursued Appellant, who was fleeing the
area, while Officer Powell attended to the woman. Despite the officers commands to stop,
Appellant ran to an area where the officers lost sight of him. After an unsuccessful search, the
two officers returned to the complex where Officer Powell was attending to the woman, later
identified as Lisset Contreras.
When Officer Powell first approached Ms. Contreras, he noticed that she had blood on
her face and was bleeding from an open wound on her lip. Officer Powell spoke with
Ms. Contreras for half an hour before she was transported to a regional command center. During
their conversation, Officer Powell noticed she was severely intoxicated. Initially, Ms. Contreras
refused to give the officers any information about what had happened. Officers Obptande and
Thomas located the vehicle and apprehended Appellant when he returned and attempted to
conceal himself there.
Ms. Contreras also testified during the State’s case-in-chief. She identified Appellant as
the father of her children, and testified that at the time of the alleged assault, Appellant was her
boyfriend. She indicated that she did not wish to testify against him, and that she refused to press
charges. She explained that on October 5, 2008, she was so intoxicated that she did not
remember parts of the evening. She testified that she remembered being at the apartment
complex and remembered yelling and swearing at Appellant. She testified that she hit Appellant
“a couple of times,” but could not remember where she hit him, or if there were any marks left on
his body. She explained that Appellant pushed her after she hit him. She testified that her lip
might have been cut when she fell, or it may have been injured during an argument she had with
some other women that evening. When the prosecutor asked whether she remembered talking
-2- with an officer while she was in the holding tank at the regional command center, Ms. Contreras
testified that she did not remember the specifics of the conversation, but did remember feeling
pressured to press charges against Appellant.
Following Ms. Contreras’ testimony, the State re-called Officer Obptande. The officer
testified that when they took Appellant into custody, there was no indication that Appellant had
been hit. Over Appellant’s objection, Officer Obptande also testified that while Ms. Contreras
was in the holding tank at the regional command center, she identified Appellant as her
“common law husband” and told the officer that Appellant had assaulted her, and had caused the
injuries to her face. The jury found Appellant guilty of assault family violence as alleged in the
indictment, and the trial court sentenced Appellant to seven years’ community supervision.
ANALYSIS
In his sole issue, Appellant argues that the trial court abused its discretion by allowing the
State to present the testimony of an El Paso Police Officer to impeach Ms. Contreras’ testimony
during rebuttal. Specifically, Appellant contends that the officer’s testimony was inadmissible
except for impeachment purposes and that the impeachment was improper because the State
knew, or should have known, that Ms. Contreras’ testimony would be unfavorable. Appellant
concludes that the State offered Ms. Contreras’ testimony solely to create a basis for the
admission of hearsay evidence, in violation of Hughes v. State, 4 S.W.3d 1, 3 (Tex.Crim.App.
1999). In response, the State argues that the circumstances presented in this case are
distinguishable from those in Hughes, because the officer’s testimony was offered for non-
hearsay purposes.
We review a trial court’s ruling on the admissibility of evidence for an abuse of
-3- discretion. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). So long as the
trial court’s decision falls withing the zone of reasonable disagreement, the ruling will be
affirmed. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). The Texas Rules of
Evidence permit the credibility of any witness to be challenged by any party, including the
witness’s proponent. See TEX .R.EVID . 607. The right to impeach one’s own witness, however,
does not permit a party to call a witness whom that party knows will testify contrary to a prior
statement, as a mere subterfuge to provide a basis for otherwise inadmissible evidence. Brasher
v. State, 139 S.W.3d 369, 371-72 (Tex.App.--San Antonio 2004, pet. ref’d). To the extent the
State calls a witness whom it anticipates will testify contrary to a prior statement, there is a risk
that the testimony is offered as a “mere subterfuge,” to provide a basis for evidence which would
be inadmissible but for its impeachment value. See Hughes, 4 S.W.3d at 5-6 n.9. To determine
whether the testimony is being offered under these circumstances, the court may consider
whether the State was surprised by the witness’s recantation, whether the witness provided any
favorable testimony, and whether the State had a legitimate basis for the admission of the
impeachment evidence. See Hughes, 4 S.W.3d at 5.
In this instance, while Appellant contends that Ms. Contreras’ testimony was offered only
to provide a basis for the officer to testify about Ms. Contreras’ statements while she was in the
holding cell, the State argues, in part, that the evidence was offered and admitted for an
alternative, non-hearsay purpose. According to the State, the officer’s testimony was not
inadmissible hearsay pursuant to Texas Rule of Evidence 801 (e)(1)(C). A statement is not
hearsay if: (1) the declarant testifies at trial; (2) the declarant is subject to cross-examination;
and (3) the statement is one of identification of a person made after perceiving him. TEX .R.EVID .
-4- 801(e)(1)(C). There is no dispute that the declarant, Ms. Contreras, testified during trial, and was
subject to cross-examination.
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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ ADRIAN DIAZ, No. 08-10-00068-CR § Appellant, Appeal from the § V. 243rd Judicial District Court § THE STATE OF TEXAS, of El Paso County, Texas § Appellee. (TC# 20080D05623) §
§
OPINION
Adrian Diaz appeals his conviction for family violence assault. In a single issue,
Appellant contends the trial court abused its discretion by permitting the State to impeach the
alleged victim of the offense with a rebuttal witness. Finding no reversible error, the trial court’s
judgment will be affirmed.
BACKGROUND
Appellant was indicted in November 2008, for assaulting his girlfriend, Ms. Lisset
Contreras. During trial, the State offered the testimony of three El Paso Police Officers, Jerry
Obptande, Robert Thomas, and James Powell. Officer Obptande testified that on October 5,
2008, he and his partner, Officer Thomas were dispatched to an apartment complex in Northeast
El Paso in response to a report that an assault was in progress. Officer Powell was already on the
scene. When Officers Obptande and Thomas arrived, they followed Officer Powell toward the
back of the complex where he had heard a woman scream in distress. When they reached the back of the building, Officers Obptande and Thomas pursued Appellant, who was fleeing the
area, while Officer Powell attended to the woman. Despite the officers commands to stop,
Appellant ran to an area where the officers lost sight of him. After an unsuccessful search, the
two officers returned to the complex where Officer Powell was attending to the woman, later
identified as Lisset Contreras.
When Officer Powell first approached Ms. Contreras, he noticed that she had blood on
her face and was bleeding from an open wound on her lip. Officer Powell spoke with
Ms. Contreras for half an hour before she was transported to a regional command center. During
their conversation, Officer Powell noticed she was severely intoxicated. Initially, Ms. Contreras
refused to give the officers any information about what had happened. Officers Obptande and
Thomas located the vehicle and apprehended Appellant when he returned and attempted to
conceal himself there.
Ms. Contreras also testified during the State’s case-in-chief. She identified Appellant as
the father of her children, and testified that at the time of the alleged assault, Appellant was her
boyfriend. She indicated that she did not wish to testify against him, and that she refused to press
charges. She explained that on October 5, 2008, she was so intoxicated that she did not
remember parts of the evening. She testified that she remembered being at the apartment
complex and remembered yelling and swearing at Appellant. She testified that she hit Appellant
“a couple of times,” but could not remember where she hit him, or if there were any marks left on
his body. She explained that Appellant pushed her after she hit him. She testified that her lip
might have been cut when she fell, or it may have been injured during an argument she had with
some other women that evening. When the prosecutor asked whether she remembered talking
-2- with an officer while she was in the holding tank at the regional command center, Ms. Contreras
testified that she did not remember the specifics of the conversation, but did remember feeling
pressured to press charges against Appellant.
Following Ms. Contreras’ testimony, the State re-called Officer Obptande. The officer
testified that when they took Appellant into custody, there was no indication that Appellant had
been hit. Over Appellant’s objection, Officer Obptande also testified that while Ms. Contreras
was in the holding tank at the regional command center, she identified Appellant as her
“common law husband” and told the officer that Appellant had assaulted her, and had caused the
injuries to her face. The jury found Appellant guilty of assault family violence as alleged in the
indictment, and the trial court sentenced Appellant to seven years’ community supervision.
ANALYSIS
In his sole issue, Appellant argues that the trial court abused its discretion by allowing the
State to present the testimony of an El Paso Police Officer to impeach Ms. Contreras’ testimony
during rebuttal. Specifically, Appellant contends that the officer’s testimony was inadmissible
except for impeachment purposes and that the impeachment was improper because the State
knew, or should have known, that Ms. Contreras’ testimony would be unfavorable. Appellant
concludes that the State offered Ms. Contreras’ testimony solely to create a basis for the
admission of hearsay evidence, in violation of Hughes v. State, 4 S.W.3d 1, 3 (Tex.Crim.App.
1999). In response, the State argues that the circumstances presented in this case are
distinguishable from those in Hughes, because the officer’s testimony was offered for non-
hearsay purposes.
We review a trial court’s ruling on the admissibility of evidence for an abuse of
-3- discretion. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). So long as the
trial court’s decision falls withing the zone of reasonable disagreement, the ruling will be
affirmed. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). The Texas Rules of
Evidence permit the credibility of any witness to be challenged by any party, including the
witness’s proponent. See TEX .R.EVID . 607. The right to impeach one’s own witness, however,
does not permit a party to call a witness whom that party knows will testify contrary to a prior
statement, as a mere subterfuge to provide a basis for otherwise inadmissible evidence. Brasher
v. State, 139 S.W.3d 369, 371-72 (Tex.App.--San Antonio 2004, pet. ref’d). To the extent the
State calls a witness whom it anticipates will testify contrary to a prior statement, there is a risk
that the testimony is offered as a “mere subterfuge,” to provide a basis for evidence which would
be inadmissible but for its impeachment value. See Hughes, 4 S.W.3d at 5-6 n.9. To determine
whether the testimony is being offered under these circumstances, the court may consider
whether the State was surprised by the witness’s recantation, whether the witness provided any
favorable testimony, and whether the State had a legitimate basis for the admission of the
impeachment evidence. See Hughes, 4 S.W.3d at 5.
In this instance, while Appellant contends that Ms. Contreras’ testimony was offered only
to provide a basis for the officer to testify about Ms. Contreras’ statements while she was in the
holding cell, the State argues, in part, that the evidence was offered and admitted for an
alternative, non-hearsay purpose. According to the State, the officer’s testimony was not
inadmissible hearsay pursuant to Texas Rule of Evidence 801 (e)(1)(C). A statement is not
hearsay if: (1) the declarant testifies at trial; (2) the declarant is subject to cross-examination;
and (3) the statement is one of identification of a person made after perceiving him. TEX .R.EVID .
-4- 801(e)(1)(C). There is no dispute that the declarant, Ms. Contreras, testified during trial, and was
subject to cross-examination. As such, only the third element is at issue.
During his rebuttal testimony, Officer Obptande stated that he engaged in a brief
conversation with Ms. Contreras while she was in the holding cell at the northeast station.
According to the officer’s testimony during the conversation, Ms. Contreras identified Appellant
as her husband, indicated that Appellant was the individual who assaulted her, and that Appellant
was responsible for the injuries on her face. Although Officer Obptande’s testimony regarding
Ms. Contreras’ statements would otherwise constitute hearsay, his testimony is admissible as an
identification pursuant to Rule 801(e)(1)(C). See Rodriguez v. State, 975 S.W.2d 667, 682
(Tex.App.--Texarkana 1998, pet. ref’d). Because there was an alternative basis for the
admissibility of the evidence, the trial court did not abuse its discretion by permitting the State to
introduce the officer’s testimony. Issue One is overruled.
CONCLUSION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
December 7, 2011 CHRISTOPHER ANTCLIFF, Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
(Do Not Publish)
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