                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NOS. 02-10-00288-CR
                                  02-10-00289-CR


DEREK JASPER MOORE                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                  STATE


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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                                   Introduction

      Appellant Derek Jasper Moore walked into the Good Luck convenience

store in Arlington, brandished a handgun, and demanded that the owner empty

the register.   Approximately three weeks later, Appellant pursued Stephany

Rodgers into that same store, poured orange juice on her head, followed her


      1
       See Tex. R. App. P. 47.4.
back to her father’s apartment, held a knife to her neck, and threatened to kill

her. A jury found Appellant guilty of aggravated robbery and aggravated assault

with a deadly weapon. Appellant now appeals those convictions, complaining in

a single point that he was denied ―proper impeachment‖ in the aggravated

assault case. We affirm.2

                      Facts and Procedural Background

      On February 15, 2009, a video surveillance camera at the Good Luck

convenience store in Arlington recorded Appellant committing aggravated

robbery. After retrieving a beer from the cooler, setting it on the counter, and

stepping outside momentarily, he returned with a handgun and demanded that

the store owner empty the register. The owner complied, Appellant said ―thank

you‖ and left.

      On March 9, 2009, Stephany Rodgers was scheduled to begin classes

toward her advanced medical assistant certificate. She and Appellant had a child

      2
       Appellant pleaded guilty to aggravated robbery and not guilty to
aggravated assault. The jury found him guilty of both, and the trial court set
punishment at concurrent sentences of forty five years’ and ten years’
confinement, respectively. Appellant filed notices of appeal in both cases and
asks us to reverse the ―convictions.‖ His sole issue on appeal, however, relates
only to the aggravated assault case, and despite conclusorily averring that the
alleged error affected punishments in ―both causes,‖ he does not suggest how
that might be true. Accordingly, we consider only the aggravated assault case
and affirm the trial court’s judgment in the aggravated robbery. See Tex. R. App.
P. 38.1(i), 43.2(a); Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App.
2005), cert. denied, 548 U.S. 926 (2006); Tong v. State, 25 S.W.3d 707, 710
(Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001); Mosley v. State, 983
S.W.2d 249, 256 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.
1070 (1999).


                                       2
together, and Stephany had arranged for Appellant to watch the little girl while

Stephany attended class. Appellant had not answered Stephany’s calls the night

before, so on the morning of the ninth she went looking for him.

      When she caught up with him at his ―homeboy’s house,‖ they got into an

argument that escalated to blows. The altercation continued during and after

Stephany drove them in her father’s car:          Stephany pushed Appellant; he

punched her in the face, jumped up and down on the hood of the car, and

pushed her over a barbeque grill, causing her to sprain her ankle.

      The Good Luck convenience store was around the corner from Stephany’s

father’s apartment, which Stephany house-sat from time to time. In the street

near the apartment, she abandoned her father’s car and set off for the store on

foot, thinking that Appellant would not follow her into a place he had robbed just

three weeks before. As she walked in, she told store owner Thanh Lien that her

boyfriend had hit her, and she asked to use the telephone to call her mother.

When Appellant entered the store and hurled a bottle of orange juice at

Stephany, Lien recognized him from the earlier robbery.

      Stephany and Appellant argued their way back to her father’s apartment.

She was crying and covered in orange juice, and Appellant ordered her to take a

shower. As she did, she could hear Appellant ransacking the apartment. When

she came out of the bathroom, she sat on the bed and told him that they should

stop fighting one another before one of them ended up dead. He held a knife to

her throat, threatened to cut her from ―ear to ear,‖ and replied, ―It might be you.‖


                                          3
      There was a knock at the front door of the two-story apartment. Stephany

started down the stairs to answer it but Appellant pushed past her, forcing her

down on the steps.

      Arlington police officer Sonia Mitchell3 had been dispatched to investigate

a disturbance call at the apartment complex. Shortly after she arrived, she was

joined by Officer Alexander Simmons who pulled up to assist.

      The officers noticed an abandoned gold Ford Explorer in the middle of the

street with the driver’s side door open, the lights on, and extensive damage to the

hood. As they approached the apartment, they were stopped by two people who

reported that there was a male and female arguing. At the apartment door, the

officers heard a male voice yelling inside and also heard what sounded like items

being thrown against a wall.

      Officer Mitchell knocked on the door, and Appellant opened it. Inside, the

officers found the apartment in disarray: things were broken and strewn across

the floor; a knife protruded from the wall, and there was crying upstairs. The

officers asked Appellant to step outside and stay with Officer Simmons. Officer

Mitchell climbed the stairs and saw Stephany, crying loudly, shaking, and sitting

on the edge of the bed wrapped in a towel.




      3
      By the time she testified at Appellant’s trial, Officer Mitchell’s last name
had changed to Villanueva, and she had been promoted to detective.


                                        4
      Officer Mitchell immediately noticed a small cut on Stephany’s neck. She

asked Stephany if she was hurt and needed medical attention. Stephany told her

that she was hurt and showed Officer Mitchell her injuries, but she did not seem

to want to elaborate on how she got them. When Officer Mitchell pointed out the

cut on Stephany’s neck, Stephany said that she had been unaware of it up to that

point but that it must have happened when Appellant held the knife to her neck.

      Downstairs, a hostile Appellant argued with Officer Simmons, who was

trying to convince him to identify himself. Appellant said that he did not need to

identify himself and that he was not going to go to jail. Officer Mitchell headed

back downstairs and informed Officer Simmons that they had enough information

to make an arrest. Appellant resisted, but the officers were able to handcuff him

and take him into custody. While the officers struggled with Appellant, Stephany

pleaded from upstairs for them not to arrest him.

      After the officers escorted Appellant to a patrol car, Officer Mitchell went

back upstairs to talk to Stephany, who was still arguing against the officers’

taking Appellant to jail.   Officer Mitchell asked her what had made her so

significantly change positions, and she replied that she was afraid that Appellant

would kill her or have her killed or beaten up and that he would be able to do so

even from prison. She did not want to take any part in the prosecution.

      Appellant’s telephone calls from jail were recorded. In one conversation

with Stephany, he demanded to know why she had told the police about him

holding a knife to her neck. She did not want to admit to him that she had talked


                                        5
about the knife, so she lied, saying that the police had tested the knife and had

found her blood on it. He complained that as a result he was going to ―be doing

a couple of years‖ and that she needed to ―change that.‖

      At trial, Appellant’s investigator, Francis Fry, testified outside the jury’s

presence that during a telephone conversation with Stephany around June 19,

2009, Stephany recounted the assault but did not mention anything about

Appellant’s using or exhibiting a knife. Fry also admitted, however, that he did

not ask her about the knife. Earlier in the trial, Stephany had testified that she

did not remember the conversation or even that Fry had called her, but she

guessed that she did not say anything to him about the knife.

     No Error to Exclude What She Didn’t Say When She Wasn’t Asked

      In his sole point, Appellant complains that the trial court denied him his

state and federal rights to confront and effectively cross-examine Stephany by

preventing him from properly impeaching her, apparently through the testimony

of his investigator, Francis Fry. Specifically, he appears to argue that the trial

court erred by excluding Fry’s testimony that Stephany did not tell Fry about the

knife during a telephone conversation in June of 2009.              Appellant now

contends—though he did not before the trial court—that the exclusion of this

proffered testimony violated his state and federal constitutional rights to confront

and cross-examine witnesses.

      While Appellant now complains that the trial court’s ruling denied his

federal and state constitutional rights, at trial he mentioned neither the state nor


                                         6
federal constitutions, any of their clauses pertaining to confrontation or cross-

examination of witnesses, or any cases interpreting those provisions, such as

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). Accordingly, we

hold that Appellant failed to preserve a constitutional complaint for our review.

See Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex.

Crim. App. 2009) (―A complaint will not be preserved if the legal basis for the

complaint raised on appeal varies from the complaint made at trial.‖); Reyna v.

State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (holding that objection that

could encompass complaints under either the evidentiary rules or the

Confrontation Clause is insufficiently specific and that hearsay objection does not

preserve constitutional complaint).

      From the record at trial, it appears that Appellant stood on rule of evidence

613 as grounds for presenting testimony from Fry in front of the jury that

Stephany never mentioned during their June 2009 telephone conversation that

Appellant had used a knife against her.

      Although Appellant does not raise this for our consideration, it is a general

rule of evidence that the prior silence of a witness as to a fact to which he has

testified, where such silence occurred under circumstances in which he would be

expected to speak out, may be used to impeach the witness. Cisneros v. State,

692 S.W.2d 78, 83 (Tex. Crim. App. 1985); see Franklin v. State, 606 S.W.2d

818, 848 (Tex. Crim. App. 1979) (op. on reh’g).         But ―[m]erely having the




                                          7
opportunity to say something does not constitute circumstances in which one

would be expected to speak out.‖ Franklin, 606 S.W.2d at 848.

      As we said, however, Appellant does not argue this issue, and we are

disinclined to argue it for him. Moreover, even if we were to hold that Stephany’s

silence to Fry on the issue of whether Appellant had used a knife was

inconsistent with her subsequent testimony at trial that he did in fact use a knife,

we fail to see how Appellant was harmed. First of all, Stephany conceded to the

jury during cross-examination that she did not tell Fry about the knife:

            Q. [by Defense Counsel] Now, you didn’t mention anything
      about that knife or the other knife to Mr. Fry when you talked to him
      on June the 19th, did you?

             A.   I guess not. I don’t remember the conversation that we had.

      Second, even if she did not tell an investigator working for Appellant about

the knife months after the offense, the evidence shows that she had already told

law enforcement about it on the day of the offense.          The officer who saw

Stephany on the day of the offense testified that she immediately noticed a small

cut on her neck that Stephany evidently did not even realize was there but which

she then reported to the officer must have been caused by Appellant’s holding

the knife to her neck.

      Third, the jury heard Appellant in a recorded jail-phone conversation

chastise Stephany for telling the police about the knife and urging her to drop the

charges.




                                         8
      Fourth, the evidence showed that Stephany was a reticent witness. She

completed an affidavit of nonprosecution, and she had to be subpoenaed to

testify against Appellant. On the day of the offense, she was very reluctant to tell

Officer Mitchell about her injuries, and she told the officer that she was afraid that

Appellant would retaliate against her if she pursued his prosecution.

      The exclusion of Fry’s testimony did not prevent disclosure of the same

information through Stephany’s admission that she ―guessed‖ she did not tell Fry

about the knife. The exclusion of evidence in violation of the rules of evidence

generally is nonconstitutional error reviewable under rule 44.2(b). Tex. R. App.

P. 44.2(b); Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007);

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). Under that rule,

we must disregard nonconstitutional error that has no effect on an appellant’s

substantial rights. Tex. R. App. P. 44.2(b); see Mosley, 983 S.W.2d at 259;

Svitak v. State, No. 02-07-00382-CR, 2009 WL 279462, at *4 (Tex. App.—Fort

Worth Feb. 5, 2009, no pet.) (mem. op., not designated for publication). Given

the evidence presented at trial, even if we were to assume for the sake of

argument that the trial court erred when it excluded the additional fact that

Stephany did not volunteer to Fry that Appellant had used a knife—particularly

when Fry admitted that he did not ask her about it—we would hold that the

exclusion of that testimony would have had no effect on the jury’s consideration

of the case and thus no effect on Appellant’s substantial rights. Accordingly, we

overrule Appellant’s sole point.


                                          9
                                     Conclusion

         Having overruled Appellant’s sole point, we affirm the judgments of the trial

court.




                                                     LEE GABRIEL
                                                     JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 12, 2012




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