PD-1136-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/5/2015 2:24:07 PM Accepted 10/7/2015 2:51:52 PM ABEL ACOSTA NO. PD-1136-15 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS AT AUSTIN _________________________
JOSE MAYA, Appellant October 7, 2015 v.
THE STATE OF TEXAS, Appellee _________________________
On appeal in Cause No. F12-34710-T from the 283rd Judicial District Court Of Dallas County, Texas And on Petition for Discretionary Review from the Fifth District of Texas at Dallas In Cause No. 05-14-00486-CR _________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _________________________
Counsel of Record:
Lynn Richardson Nanette Hendrickson Chief Public Defender Assistant Public Defender Dallas County Public Defender’s Office Katherine A. Drew State Bar Number: 24081423 Chief, Appellate Division 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207-399 (214) 653-3550 (telephone) (214) 653-3539 (fax)
ATTORNEYS FOR PETITIONER/APPELLANT TABLE OF CONTENTS
INDEX OF AUTHORITIES ................................................................................... iii STATEMENT REGARDING ORAL ARGUMENT ...............................................2 STATEMENT OF THE CASE .................................................................................2 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ....................2 STATEMENT OF FACTS ........................................................................................3 GROUND FOR REVIEW .........................................................................................3 Whether the Court of Appeals misapplied Rule 613(a)(4) of the Texas Rules of Evidence by admitting extrinsic evidence of J’s prior inconsistent statement .............................................................................3 ARGUMENT .............................................................................................................3 FACTS .............................................................................................................3 APPLICABLE LAW .......................................................................................5 THE COURT OF APPEALS’ HOLDING IS INCORRECT .........................6 CONCLUSION ...............................................................................................9 PRAYER FOR RELIEF ............................................................................................9 CERTIFICATE OF SERVICE ................................................................................10 CERTIFICATE OF COMPLIANCE.......................................................................10
ii INDEX OF AUTHORITIES
Cases Aranda v. State, 736 S.W.2d 702 (Tex. Crim. App. 1987) ..........................................................8 Huff v. State, 576 S.W.2d 645 (Tex. Crim. App. 1979) ......................................................6, 8 Maya v. State, No. 05-14-00486-CR, 2015 Tex. App. LEXIS 8156, * 9 (Tex. App.—Dallas August 4, 2015) ........................................................................................ 3, 7, 8 McGary v. State, 750 S.W.2d 782 (Tex. Crim. App. 1988) ..........................................................6 Ranson v. State, 707 S.W.2d 96 (Tex. Crim. App. 1986) ........................................................8, 9 Rules Tex. R. Evid. 613(a)..............................................................................................6
iii LIST OF PARTIES
TRIAL COURT JUDGE Rick Magnis, Judge, Presiding Judge
APPELLANT Jose Maya
APPELLANT’S ATTORNEYS AT TRIAL Sarah Duncan, State Bar No. 24055477
ON APPEAL Nanette Hendrickson, State Bar No. 24081423
Assistant Public Defenders Dallas County Public Defender’s Office 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207-4399
STATE’S ATTORNEYS AT TRIAL Jason Fine, State Bar No. 24068658
ON APPEAL Alexis E. Hernandez, State Bar No. 24055658
Assistant District Attorneys Dallas County District Attorney’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
1 Jose Maya, Appellant, respectfully presents to this Honorable Court
his Petition for Discretionary Review of the Fifth District Court of Appeals’
Opinion affirming the trial court’s judgment.
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument because this case presents a question
of law on issues having statewide impact and possible reoccurrence. Oral
argument may be helpful to the members of this Court in the resolution of
the issues presented.
STATEMENT OF THE CASE
Appellant was charged by indictment with the offense of Indecency
with a Child by Contact. (CR: 11). Appellant pled not guilty to the primary
charge in the indictment. (CR: 66). A jury trial was held, and the jury found
Appellant guilty of the offense. (RR6: 71). After a hearing on punishment,
the court assessed punishment at fourteen years’ imprisonment. (RR6: 66).
Judgment was entered by the trial court on April 16, 2014. (CR: 66). A
notice of appeal was timely filed. (CR: 69).
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
On August 4, 2015, in an unpublished opinion authored by Justice
Evans, the Court of Appeals for the Fifth District of Texas affirmed the trial
court’s judgment. Maya v. State, No. 05-14-00486-CR, 2015 Tex. App.
2 LEXIS 8156, * 9 (Tex. App.—Dallas August 4, 2015). This Court granted
an extension of time to file a Petition for Discretionary Review, which is
timely if filed on or before October 5, 2015.
STATEMENT OF FACTS
The facts of this case, which are extensive, are adequately recited in
the Court of Appeal’s opinion, which is attached to this Petition as required
by TEX. R. APP. P. 68.4 (i).
Suffice it to say that Appellant was charged with and convicted of
indecency with a child by contact. (CR: 11, 71; RR6: 71).
GROUND FOR REVIEW
Whether the Court of Appeals misapplied Rule 613(a)(4) of the Texas Rules of Evidence by admitting extrinsic evidence of J’s prior inconsistent statement.
ARGUMENT
The Court of Appeals incorrectly applied Rule 613 which states
extrinsic evidence of a prior inconsistent statement can be admitted when the
witness does not “unequivocally admit making the statement.” TEX. R.
EVID. 613(a)(4).
FACTS
The complaining witness, J, testified as a witness for the State. (RR5:
76-134). J testified that her sister told J to tell her aunt, Isabel, that
3 Appellant, their father, touched J’s private part. (RR5: 83). J testified that
her sister texted Isabel who then took J and her sister to Braum’s the next
day. (RR5: 84-85). J stated that she did not tell Isabel anything while at
Braum’s, but her sister told Isabel that Appellant had been touching J since
the seventh grade. (RR5: 85). The prosecutor then asked J if she had
previously spoken with Christine Mack (Mack), a forensic interviewer at the
Children’s Advocacy Center. (RR5: 89). J responded, “I remember talking to
somebody.” (RR5: 89). J stated she remembered some of the specific
statements she made to Mack. (RR5: 89). Defense counsel objected, saying:
MS. DUNCAN: Objection. This is hearsay. He’s trying to back door in her statement and use it as evidence.
MR. FINE: It’s her own words, Your Honor. It’s not hearsay. It’s improper use of impeachment.
MS. DUNCAN: Can I ask at least for a limiting instruction that it be used only for impeachment and not as substantive evidence?
THE COURT: Yes.
MR. FINE: Your Honor, at this point she hasn’t even said it’s inconsistent. I’m asking what she told Christine. She didn’t say she didn’t say. At this point it’s her testimony. I haven’t impeached her.
THE COURT: I understand. At the appropriate time I will give the appropriate instruction.
4 (RR5: 91-92). At no time did the trial court give an oral or written
instruction to the jury regarding J’s statement. (RR: passim; CR: passim).
The State then continually asked J regarding specific statements she made to
Mack, the forensic interviewer. (RR5: 92-106). J’s answers varied
depending on the question; however, if she stated she did not remember, the
prosecutor would ask if seeing the video of her forensic interview would
refresh her memory. (RR5: 95, 96, 97, 98, 100, 102, 102-103, 104). J
answered in the affirmative to that question almost every time. (RR5: 95, 96,
97, 99, 102, 103, 104). On two occasions she answered, “maybe” and
“probably.” (RR5: 100, 101). Part way through J’s testimony, defense
counsel objected again to the State testifying in order to get the statements
admitted. (RR5: 97-98). At no time did J deny speaking with the forensic
interviewer or giving her a statement. (RR: passim).
APPLICABLE LAW
Rule 613(a) of the Texas Rules of Evidence provides the
following:
In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement…If the witness
5 unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted.
Tex. R. Evid. 613(a); McGary v. State, 750 S.W.2d 782, 786 (Tex.
Crim. App. 1988) (quoting Huff v. State, 576 S.W.2d 645, 647 (Tex.
Crim. App. 1979)
THE COURT OF APPEALS’ HOLDING IS INCORRECT
The Court of Appeals’ decision is in conflict with the holding of this
Court. The Court of Appeals held in the case at bar that because J testified
in a reluctant manner regarding her statement to Christine Mack, the forensic
interviewer, extrinsic evidence of the forensic interview was admissible.
However, the rule does not predicate admission of extrinsic evidence on how
one testifies to the content of the statement, but whether they “unequivocally
admit making the statement.” Tex. R. Evid. 613(a)(4).
The Court of Appeals cited in its opinion the foundation laid by the
State for admission of extrinsic evidence of J’s interview with Christine
Mack.
Q. Okay. All right. And this is over two years ago, right? A. Yes. Q. And this has been really difficult on you, right? A. Yes. Q. Are there a lot of things that you don't really want to talk about or want to remember about that? A. Yes.
6 Q. So you’re not saying it didn't happen. You just don’t remember that? A. Yes. Q. Okay. Do you remember a couple weeks after Braum’s that you went down to a place called the Children’s Advocacy Center and talked to a woman named Christine Mack? A. I remember talking to somebody. Q. Do you remember she had dark hair, long dark hair? A. Yes. Q. And do you remember what you told Christine Mack? A. No.
Maya, 2015 Tex. App. LEXIS 8156 at *5; (RR5: 89). The Court of Appeals
appears to confuse being reluctant to testify to the contents of the statement
with failing to unequivocally admit making the statement at all. The Court of
Appeals relies on J’s reluctance when testifying about the interview. Id. at
*6. While J might have been hesitant while testifying about the contents of
the statement, at no time during her testimony did she deny or fail to
“unequivocally admit” making a statement to Christine Mack. Rather, as
seen in the exchange cited above, J stated that she remembered talking to
someone at the Children’s Advocacy Center. (RR5: 89). That testimony
admits making the statement in question.
The Court of Appeals also disregarded the fact that not only did J
unequivocally admit to making a prior statement, but she admitted that the
prior statement contradicted her trial testimony. The State acknowledged and
J confirmed during her testimony that she was not going to testify consistent
7 with her prior statements to her aunt or the forensic interviewer, Christine
Mack. (RR5: 83, 109). Indeed, the State told J regarding her prior statements
“…I understand and I understand that what you are going to say today is that
what you said back then wasn’t the truth, right?” (RR5: 83). J then replied,
“yes.” (RR5: 83). The Court of Appeals cited Aranda v. State for the
proposition that “if a witness unequivocally admits a prior statement is
inconsistent with his trial testimony the process of impeachment is
accomplished and other evidence of the prior statement or confession is
inadmissible.” Maya, 2015 Tex. App. LEXIS 8156 at *6, citing Aranda v.
State, 736 S.W.2d 702, 708 (Tex. Crim. App. 1987). However, they failed
to apply it to J’s testimony that her prior statements were inconsistent with
her trial testimony. Since J admitted that her prior statements were
inconsistent with her testimony at trial, the extrinsic evidence of her
statements to Mack should have been held inadmissible.
The present case is not unlike the situation in Huff v. State where the
prosecutor read grand jury testimony to the witness and asked if she
remembered making the statement, without first eliciting a denial of the
prior statement. Huff, 576 S.W.2d at 647-648 (Tex. Crim. App. 1979). “A
negative response to this question is not a denial that she made the
statement.” Ranson v. State, 707 S.W.2d 96, 102 (Tex. Crim. App. 1986)
8 (Miller, J., dissenting). Because the prosecutor “failed first to elicit a denial
of the prior statement,[he] likewise interjected into evidence a large portion
of a purported prior statement that was otherwise inadmissible.” Id.
In the case at bar, the State improperly admitted portions of J’s
forensic interview by continually asking if she remembered specific
statements to Christine Mack. However, J never unequivocally admitted
making these statements to Mack first. By asking questions in this way, the
State admitted portions of the interview which would have been otherwise
inadmissible. As such, contrary to the Court of Appeal’s opinion, this was
improper impeachment.
CONCLUSION
The Court of Appeals’ decision to affirm the trial court’s ruling admitting
J’s prior inconsistent statement is in conflict with this Court’s ruling. This
Court should grant discretionary review to resolve this discrepancy between the
Court of Appeal’s ruling and the ruling of this Court.
PRAYER FOR RELIEF
For the reasons herein alleged, Appellant prays this Court grant this
petition and, upon reviewing the judgment entered below, remand the case
for a new trial.
9 Respectfully submitted, Lynn Richardson Chief Public Defender
/s/ Nanette Hendrickson Nanette Hendrickson Assistant Public Defender State Bar No. 24081423
CERTIFICATE OF SERVICE
I hereby certify that on the 5th day of October, 2015, a true copy of the foregoing petition for discretionary review was served on Lori Ordiway, Assistant District Attorney, Dallas County Criminal District Attorney’s Office, 133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by electronic and hand delivery; and was also served on, Lisa C. McMinn, State Prosecuting Attorney, P.O. Box 13046, Austin, Texas, 78711 by electronic delivery and by depositing same in the United States Mail, Postage Prepaid. /s/ Nanette Hendrickson Nanette Hendrickson
CERTIFICATE OF COMPLIANCE
I certify that the foregoing Petition for Discretionary Review contains 2,193 words. /s/ Nanette Hendrickson Nanette Hendrickson
10 User Name: nanette hendrickson Date and Time: Oct 02, 2015 2:26 p.m. EDT Job Number: 24536766
Document(1)
1. Maya v. State, 2015 Tex. App. LEXIS 8156 Client/Matter: -None- Narrowed by: Content Type Narrowed by Cases Court: Texas
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Maya v. State Court of Appeals of Texas, Fifth District, Dallas August 4, 2015, Opinion Filed No. 05-14-00486-CR
Reporter 2015 Tex. App. LEXIS 8156
JOSE MAYA, Appellant v. THE STATE OF TEXAS, LexisNexis® Headnotes Appellee Criminal Law & Procedure > ... > Standards of Review > Abuse Notice: PLEASE CONSULT THE TEXAS RULES OF of Discretion > Evidence APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS. HN1 A trial court’s decision to admit or exclude evidence is viewed under an abuse of discretion standard. A trial court Prior History: [*1] On Appeal from the 283rd Judicial abuses its discretion when its decision lies outside the zone District Court, Dallas County, Texas. Trial Court Cause No. of reasonable disagreement. F12-34710-T. Evidence > ... > Credibility of Witnesses > Impeachment > Prior Inconsistent Statements Core Terms HN2 A witness’s prior inconsistent statements are admissible interview, impeachment, limiting instruction, trial court, to impeach a witness. The rule of admissibility of evidence prior inconsistent statement, remember, forensic, admit, of prior inconsistent statements should be liberally construed witness’s, touching and the trial judge should have discretion to receive any evidence which gives promise of exposing a falsehood.
Case Summary Evidence > ... > Credibility of Witnesses > Impeachment > Prior Inconsistent Statements Overview HN3 See Tex. R. Evid. 613(a).
HOLDINGS: [1]-In a trial for indecency with a child by Evidence > ... > Credibility of Witnesses > Impeachment > Prior contact, the prosecutor was properly permitted to question Inconsistent Statements the complainant regarding her prior inconsistent statements to a forensic interviewer because the state provided a proper HN4 There are three requirements to establish the proper foundation under Tex. R. Evid. 613 by asking the complainant predicate or foundation for impeachment testimony: (1) about the time, place and person to whom she made the identification (time and place and person to whom the statements and providing her an opportunity to explain or statement was made); (2) the contents of such statement; deny the statements; [2]-Error in failing to give a limiting and (3) the witness must be afforded an opportunity to instruction on use of the prior inconsistent statements was explain or deny such statement. harmless because defendant confessed in his voluntary Evidence > ... > Credibility of Witnesses > Impeachment > Prior interview with a detective and the detective testified that the Inconsistent Statements confession corroborated what the complainant said in her forensic interview. HN5 Tex. R. Evid. 613(a) does not require a witness to deny a prior inconsistent statement. Instead, the rule provides that Outcome extrinsic evidence of a witness’s prior inconsistent statement may not be admitted if the witness unequivocally admits Judgment affirmed. making the statement. Tex. R. Evid. 613(a). If a witness
nanette hendrickson Page 2 of 6 2015 Tex. App. LEXIS 8156, *1
unequivocally admits a prior statement is inconsistent with 44.2(b), nonconstitutional error that does not affect his trial testimony the process of impeachment is appellant’s substantial rights must be disregarded. accomplished and other evidence of the prior statement or confession is inadmissible. Counsel: For Appellants: Nanette Hendrickson, Dallas, TX.
Criminal Law & Procedure > Trials > Jury Instructions > For Appellees: Susan Hawk, Alexis E. Hernandez, Dallas, Limiting Instructions TX.
HN6 A trial court must provide a limiting instruction that Judges: Before Justices Fillmore, Myers, and Evans. restricts the evidence to its proper scope and instruct the Opinion by Justice Evans. jury accordingly. Tex. R. Evid. 105(a). Opinion by: DAVID EVANS Criminal Law & Procedure > Trials > Jury Instructions > Limiting Instructions Opinion HN7 The plain language of Tex. R. Evid. 105(a) seems to place the relevant timing for a limiting instruction request at MEMORANDUM OPINION the moment the evidence is admitted. Opinion by Justice Evans Evidence > ... > Credibility of Witnesses > Impeachment > General Overview Jose Maya appeals his conviction for the offense of Evidence > ... > Credibility of Witnesses > Impeachment > Prior indecency with a child by contact. In two issues, appellant Inconsistent Statements contends that: (1) the trial court abused its discretion in allowing the prosecutor to question a witness regarding her HN8 Impeachment is aimed at attacking the credibility of a prior inconsistent statement because it was improper witness. Testimony admitted only for impeachment purposes impeachment and (2) the trial court erred by not giving a is without probative value and cannot be considered as limiting instruction to the jury when requested by appellant. substantive evidence. One of the common methods of Appellant seeks a reversal and remand for further impeachment is by the use of prior inconsistent statements, proceedings. We affirm. oral or written, under oath or not. The jury may consider the inconsistency as damaging to the witness’s credibility, but BACKGROUND may not use the evidence substantively. In July 2012, appellant was indicted for the offense of Evidence > ... > Credibility of Witnesses > Impeachment > Prior indecency with a child by contact. Appellant pleaded not Inconsistent Statements guilty and the trial commenced on April 15, 2014. Evidence > ... > Exemptions > Prior Statements > Inconsistent Statements During trial, Detective Kim Vanderveen, the lead detective in this case, testified that she observed the forensic interview HN9 Tex. R. Evid. 607 permits the use of prior inconsistent between the victim, J (appellant’s daughter), and an statements that are hearsay for the purposes of impeachment. interviewer at the Dallas Children’s Advocacy Center Courts, of course, must be careful to give jury instructions (DCAC). Detective Vanderveen spoke with appellant when limiting the evidence to the issue of impeachment. he voluntarily visited her and he confessed [*2] to having touched J ″once a month″ for ″more or less a year.″ Criminal Law & Procedure > Trials > Jury Instructions > Limiting Instructions Maria, J’aunt, testified that she received a text message in Criminal Law & Procedure > ... > Standards of Review > March 2012 from her niece, G, stating that she and her Harmless & Invited Error > Jury Instructions stepsister, J, needed to speak with her. The next day, Maria picked up G, J, J’s friend, and her sister (G and J’s mother) HN10 When a trial court errs by refusing to give a and took them to Braum’s. Maria testified that she took the contemporaneous limiting instruction, that error is girls to the restroom and J told Maria that her father had non-constitutional and is subject to a harmless error analysis been touching her. Maria said that J acted nervous and sad pursuant to Tex. R. App. P. 44.2(b). Under Tex. R. App. P. and told her that it started when she was in the seventh
nanette hendrickson Page 3 of 6 2015 Tex. App. LEXIS 8156, *2
grade. At the time J spoke with Maria, she was in the eighth After J testified, the trial court never gave a limiting grade. instruction. On April 16, 2014, the jury convicted appellant of indecency with a child by contact and the court sentenced Christine Mack, a former forensic interviewer for the him to fourteen years of imprisonment. DCAC, testified about her interview with J. She testified that a forensic interviewer is a trained professional who ANALYSIS interviews children of suspected abuse in a non-leading and non-suggestive manner. She stated that J was very upset and I. The Trial Court Properly Allowed the State to Question emotional once they started speaking about the abuse. Mack a Witness About Statements Made During Her Forensic further testified that she did not see any signs of coaching or Interview lying during J’s interview. Appellant argues that the trial court abused its discretion J also testified and stated that she did not want to be in court. when it allowed the prosecutor to question J regarding her At trial, J testified that G told her to say that her dad had prior statement to Mack because it was improper been touching her. J also testified [*3] that her mom had impeachment under Rule 613 of the Texas Rules of Evi- health problems and had just gotten out of the hospital dence. We disagree. around March 2012. J said that there were a lot of things that she did not want to talk about or remember. At trial, she A. Standard of Review testified in answers to appellant’s counsel questions that her stepsister came up with this story about her dad and she HN1 A trial court’s decision to admit or exclude evidence is went along with it to split up their parents and have more viewed under an abuse of discretion standard. Torres v. freedom without him around. When the State asked her State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial about her interview at the Dallas Children’s Advocacy court abuses its discretion when its decision lies outside the Center, the following exchange took place: zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996). HN2 A witness’s prior Q. Do you remember -- do you remember what you told inconsistent statements are admissible to impeach a witness. Christine at the Advocacy Center? See Aranda v. State, 736 S.W.2d 702, 707 (Tex. Crim. App. A. Some of it. 1987). The rule of admissibility of evidence of prior inconsistent [*5] statements should be liberally construed Q. Tell the jury some of what you told Christine. and the trial judge should have discretion to receive any Appellant’s counsel: Objection. This is hearsay. evidence which gives promise of exposing a falsehood. Id. He’s trying to back door in her statement and use it as evidence. B. Texas Rule of Evidence 613 State’s attorney: It’s her own words, Your Honor. Rule 613(a) of the Texas Rule of Evidence provides as It’s not hearsay. It’s improper use of impeachment.1 follows: THE COURT: Overruled. HN3 (1) Foundation Requirement. When examining a Appellant’s counsel: Can I ask at least for a witness about the witness’s prior inconsistent limiting instruction that it be used only for statement—whether oral or written—a party must first impeachment and not as substantive evidence? tell the witness: THE COURT: Yes. (A) the contents of the statement; State’s attorney: Your Honor, at this point she (B) the time and place of the statement; and hasn’t even said it’s inconsistent. I’m asking what she told Christine. She didn’t say she didn’t [*4] (C) the person to whom the witness made the statement. say. At this point it’s her testimony. I haven’t (2) Need Not Show Written Statement. If the witness’s impeached her. prior inconsistent statement is written, a party need not THE COURT: I understand. At the appropriate show it to the witness before inquiring about it, but time I will give the appropriate instruction. must, upon request, show it to opposing counsel.
1 It appears the State was informing the court what the correct objection was rather than commenting on its intent in asking the question.
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(3) Opportunity to Explain or Deny. A witness must be A. Yes. given the opportunity to explain or deny the prior Q. So you’re not saying it didn’t happen. You just don’t inconsistent statement. remember that? (4) Extrinsic Evidence. Extrinsic evidence of a witness’s A. Yes. prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails Q. Okay. Do you remember a couple weeks after to unequivocally admit making the statement. Braum’s that you went down to a place called the Children’s Advocacy Center and talked to a woman (5) Opposing Party’s Statement. This subdivision (a) named Christine Mack? does not apply to an opposing party’s statement under Rule 801(e)(2). A. I remember talking [*8] to somebody.
See TEX. R. EVID. 613(a). Q. Do you remember she had dark hair, long dark hair? A. Yes. C. Analysis Q. And do you remember what you told Christine Appellant argues that the State [*6] did not lay the proper Mack? foundation for admitting J’s prior inconsistent statements. A. No. The State argues that appellant failed to preserve any alleged error on this issue by failing to make a timely, In the above exchange, the State identified the time, place specific objection. For purposes of our analysis, we have and person to whom J made the statements. Following this elected to reach the merits of the issue.2 exchange, the State went through the content of J’s prior interview with Mack. J often testified in a reluctant manner As stated above, HN4 there are three requirements to when the State asked about her statements during the establish the proper predicate or foundation for impeachment forensic interview by stating that she ″didn’t remember″ or testimony: (1) identification (time and place and person to ″didn’t know.″ Regardless of her reluctance, J was provided whom the statement was made); (2) the contents of such an opportunity to explain or deny her prior statements. statement; and (3) the witness must be afforded an Accordingly, we conclude that the State properly established opportunity to explain or deny such statement. See id.; the foundation for its use of J’s impeachment testimony. Flowers v. State, 438 S.W.3d 96, 103 (Tex. App.—Texarkana 2014, pet. ref’d). Here, the State established the foundation Appellant also asserts that the witness must deny making for its impeachment testimony in the following exchange: the statement in order to admit the prior inconsistent Q. Okay. All right. And this is over two years ago, statement. HN5 Rule 613(a), however, does not require the witness to deny the statement. Instead, the rule provides that right? extrinsic evidence of a witness’s prior inconsistent statement A. Yes. may not be admitted if the witness unequivocally admits Q. And this has been really difficult on you, right? making the statement. See TEX. R. EVID. 613(a), Aranda, 736 S.W.2d at 708 (if a witness unequivocally admits a prior A. Yes. statement is inconsistent with his trial testimony the process Q. Are there a lot of things that you don’t really want to of [*9] impeachment is accomplished and other evidence of talk about or want to remember about that? the prior statement or confession is inadmissible). As
2 We note, however, that there is a persuasive argument that appellant’s first issue on appeal has been waived. When the hearsay/impeachment objection was raised, the trial court did not make a ruling but noted that an appropriate instruction would be given at the appropriate time. Appellant did not reassert his objection during J’s testimony or obtain a ruling on the objection. As such, the error has not been preserved. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) (″In general, TEX. R. CRIM. EVID. 103(a)(1) and TEX. R. APP. PROC. 52 govern preservation of error concerning the admission of evidence in criminal cases. Combined, these rules state that if, on appeal, a defendant claims the trial judge erred in admitting evidence offered by the State, this error must have been preserved by a proper objection and a ruling on that objection. The objection must be timely; that is, the defense must have objected to the evidence, if possible, before it was [*7] actually admitted. If this was not possible, the defense must have objected as soon as the objectionable nature of the evidence became apparent and must have moved to strike the evidence, that is, to have it removed from the body of evidence the jury is allowed to consider.″).
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discussed above, J often testified in a reluctant manner when version of the events at issue. See Hammock v. State, 46 the State asked her about the forensic interview. J S.W.3d 889, 893 (Tex. Crim. App. 2001) (HN7 ″[T]he plain remembered some of her interview statements but not language of Rule 105(a) seems to place the relevant timing others. After review of J’s direct examination, however, it for a limiting instruction request at the moment the evidence would be difficult to say that J unequivocally admitted that is admitted.″). Here, appellant was entitled to a limiting her prior interview was inconsistent with her trial testimony. instruction once the State began questioning J about her As our review of the record supports the trial court’s ruling, former interview. See Adams v. State, 862 S.W.2d 139, we cannot say the trial court clearly abused its discretion. 147-48 (Tex. App.—San Antonio 1993, pet. ref’d) (HN8 Accordingly, we overrule appellant’s first issue. ″[I]mpeachment is aimed at attacking the credibility of a witness. Testimony admitted only for impeachment purposes II. Failure to Give Limiting Instruction Resulted in is without probative value and cannot be considered as substantive evidence. One of the common methods of Harmless Error impeachment is by the use of prior inconsistent statements, oral or written, under oath or not. The jury may consider the In his second point of error, appellant contends that the trial inconsistency as damaging to the witness’s credibility, but court erred by not giving a limiting instruction at the time it may not use the evidence substantively.″) (internal citations was requested.3 As stated above, appellant requested a omitted); Miranda v. State, 813 S.W.2d 724, 735 (Tex. limiting instruction when the State first asked J about the App.—San Antonio 1991, pet. ref’d) (HN9 ″Rule 607 Mack interview: permits the use of prior inconsistent statements that are hearsay for the purposes of impeachment. Courts, of course, Appellant’s counsel: Can I ask at least for a limiting must be careful to give jury instructions limiting the instruction that it be used only for impeachment and not evidence to the issue of impeachment.″). Having [*12] as substantive evidence? found error, we proceed to conduct a harm analysis. See Jones v. State, 119 S.W.3d 412, 423-24 (Tex. App.—Ft. THE COURT: Yes. Worth 2003, no pet.) (HN10 ″When a trial court errs by State’s attorney: Your Honor, at this point she hasn’t refusing to give a contemporaneous limiting instruction, even said it’s inconsistent. I’m asking what [*10] she that error is non-constitutional and is subject to a harmless told Christine. She didn’t say she didn’t say. At this error analysis pursuant to Texas Rule of Appellate Procedure point it’s her testimony. I haven’t impeached her. 44.2(b).″). Here, we have a fair assurance that this error did not affect any substantial right belonging to appellant. See THE COURT: I understand. At the appropriate time I TEX. R. APP. P. 44.2(b) (nonconstitutional error that does not will give the appropriate instruction. affect appellant’s substantial rights must be disregarded). The appellant confessed to having touched J ″once a month″ The State argues that appellant’s counsel did not request any for ″more or less a year″ in his voluntary interview with additional instructions after this exchange and that counsel Detective Vanderveen. The exhibit of the interview was abandoned and waived his original objection. Although we admitted into evidence. Further, Detective Vanderveen agree that a limiting instruction was appropriate in this testified that appellant’s confession corroborated what J said situation, we overrule this issue because such error was in her forensic interview. In addition, J’s aunt, Maria, harmless given the evidence presented. testified that J told her that J’s father had been inappropriately touching her. Finally, Mack, the forensic interviewer, testified HN6 A trial court must provide a limiting instruction that that she did not see any signs of coaching or lying during J’s restricts the evidence to its proper scope and instruct the interview. Considering the record in its entirety, we conclude jury accordingly. See TEX. R. EVID. 105(a). At the time that that the trial court’s error was harmless and overrule the State began questioning J about her interview with appellant’s second issue. Mack, J had already testified that G told her to say that her [*11] dad had been touching her. Accordingly, it was CONCLUSION appropriate for appellant’s attorney to request a limiting instruction when the State asked about the Mack interview We resolve appellant’s issues against him [*13] and affirm because J had already indicated that she had changed her the trial court’s judgment.
3 Appellant makes a passing reference to the fact that the trial court ″did not include a written instruction in the jury charge either.″ Appellant, however, does not present any argument or analysis regarding this allegation. As appellant has failed to conduct any Almanza analysis, the Court will restrict its analysis to the alleged failure to instruct the jury at the time requested.
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/s/ David Evans JUDGMENT DAVID EVANS Based on the Court’s opinion of this date, the judgment of JUSTICE the trial court is AFFIRMED. Do Not Publish Judgment entered this 4th day of August, 2015. TEX. R. APP. P. 47
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