                                    IN THE
                            TENTH COURT OF APPEALS

                                  No. 10-14-00013-CR

MITCHELL DEAN COCHRAN,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                             From the 54th District Court
                              McLennan County, Texas
                              Trial Court No. 2012-20-C2


                            MEMORANDUM OPINION


          In two issues, appellant, Mitchell Dean Cochran, challenges his convictions for

five counts of sexual assault of a child and two counts of indecency with a child by

contact. See TEX. PENAL CODE ANN. §§ 21.11, 22.011 (West 2011). Specifically, Cochran

asserts that the trial court erred by: (1) preventing him from presenting impeachment

evidence; and (2) denying him the right to properly cross-examine two witnesses. We

affirm.
                                            I.       BACKGROUND

        Cochran was charged by indictment with five counts of sexual assault of a child

and two counts of indecency with a child by contact. At the conclusion of the evidence,

the jury found Cochran guilty on all counts and sentenced Cochran to twelve years’

confinement in the Institutional Division of the Texas Department of Criminal Justice on

each count. The trial court stacked two of the sentences and ordered that the remaining

sentences run concurrently.1 The trial court also certified Cochran’s right of appeal, and

this appeal followed.

                                     II.      IMPEACHMENT EVIDENCE

        In his first issue, Cochran contends that the trial court erred in not admitting

impeachment evidence—statements allegedly contained in a CPS report.

A.      Standard of Review

        We review a trial court’s admission or exclusion of evidence for an abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court

abuses its discretion if it acts arbitrarily or unreasonably, without reference to any

guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.

1990). When considering a trial court’s decision to admit or exclude evidence, we will

        1  The judgments for each of the convicted offenses reflect that the sentences were to run
concurrently; however, both the case information sheet contained in the Clerk’s Record and the trial
court’s statements in open court indicate that two of the sentences were ordered to run consecutively
with the remaining sentences to run concurrently. See Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim.
App. 2002) (“A trial court’s pronouncement of sentence is oral, while the judgment, including the
sentence assessed, is merely the written declaration and embodiment of that oral pronouncement. When
the oral pronouncement of sentence and written judgment vary, the oral pronouncement controls.”
(internal citations omitted)); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); see also Robinson v.
State, Nos. 10-13-00304-CR & 10-13-00305-CR, 2014 Tex. App. LEXIS 6631, at **4-5 (Tex. App.—Waco June
19, 2014, no pet.) (mem. op., not designated for publication).

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not reverse the trial court’s ruling unless it falls outside the “zone of reasonable

disagreement.” Id. at 391; see Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App.

2003).

B.       Discussion

         On appeal, Cochran complains that the trial court erroneously prevented him

from impeaching the victim in this case with statements she allegedly made to a CPS

caseworker. Cochran asserts that the statements contained in the CPS report were

central to his theory to undermine the credibility of the victim. It appears that Cochran

wished to impeach the victim about her prior drug use and her sneaking boys in the

house that put her at odds with her parents.

         Under Texas Rules of Evidence 104(a), whether or not to admit evidence
         at trial is a preliminary question to be decided by the court. A bedrock
         condition of admissibility of evidence in any legal contest is its relevance
         to an issue in the case—that is to say, its tendency to make a fact of
         consequence to determination of the action more or less probable.
         Evidence has no relevance if it is not authentically what its proponent
         claims it to be. . . . In performing its Rule 104 gate-keeping function, the
         trial court itself need not be persuaded that the proffered evidence is
         authentic. The preliminary question for the trial court to decide is simply
         whether the proponent of the evidence has supplied facts that are
         sufficient to support a reasonable jury determination that the evidence he
         has proffered is authentic.

Tienda v. State, 358 S.W.3d 633, 637-38 (Tex. Crim. App. 2012) (internal citations &

footnotes omitted). In other words, the trial court does not abuse its discretion if it finds

that a reasonable juror could not reasonably find that the evidence has been

authenticated. See Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007) (“Indeed,

the requirement of authentication or identification as a condition precedent to


Cochran v. State                                                                        Page 3
admissibility is satisfied by evidence sufficient to support a finding that the matter in

question is what the proponent claims.” (internal citations & quotations omitted)).

          At trial, the victim, the victim’s brother, the victim’s mother, and the

investigating police officer all testified that the statements attributed to them in the CPS

report were never made by them and, thus, were untrue. Specifically, the investigating

officer testified that the CPS caseworker inaccurately attributed statements to him “so I

question anything that she (the caseworker) puts in there, quite frankly.” Moreover,

Veronica Terrell, an investigative supervisor for CPS, testified that the employment of

the CPS caseworker who wrote the report in this case had been terminated because of

“[c]oncerns with falsification of documentation.”       Terrell discovered that the CPS

caseworker alleged “she had interviewed certain people and they had told her certain

things, but that the people would say, no, I hadn’t told them—told her that.”

Accordingly, Terrell testified that the CPS caseworker did not do reliable work.

Additionally, the record reflects that the CPS caseworker who drafted the report did not

testify, and the victim testified that she neither reviewed nor signed the purported CPS

report.

           Based on the foregoing, we cannot say that Cochran, the proponent of the

impeachment evidence, satisfied his burden of demonstrating that the purported CPS

report was authentic. See TEX. R. EVID. 104(a); see also Tienda, 358 S.W.3d at 637-38;

Druery, 225 S.W.3d at 502. Therefore, because nothing in the record authenticates the

purported statements contained in the CPS report, none of the statements were

admissible to impeach the victim’s testimony. See TEX. R. EVID. 104(a); see also Tienda,

Cochran v. State                                                                      Page 4
358 S.W.3d at 637-38; Druery, 225 S.W.3d at 502. Accordingly, we cannot say that, in

performing its Rule 104 gate-keeping function, the trial court abused its discretion in

excluding the complained-of evidence for impeachment purposes. See Martinez, 327

S.W.3d at 736; Manning, 114 S.W.3d at 926; Montgomery, 810 S.W.2d at 380. We overrule

Cochran’s first issue.

                         III.   CROSS-EXAMINATION OF WITNESSES

       In his second issue, Cochran argues that the trial court erred in limiting his right

to cross-examine Lois Helmick and Mitchell Dean Cochran II regarding the victim

allegedly sneaking boys into the house without permission. However, Cochran’s brief

does not have a specific section addressing his second issue.              Instead, Cochran’s

argument section melds his two issues together to the extent that it appears that his

second issue is dependent on the resolution of his first issue—an issue that we have

already overruled. Nevertheless, Cochran makes the following statements, without

citation to authority, that appear to be the extent of his second issue:

       Appellant was prevented from going into prior bad acts of the victim
       when the appellant’s son was on the stand. Appellant also was denied the
       ability to prove up the victim[‘]s drug use and that her having had boys in
       the house causes her parents to be mad at her and argue with each other
       about this behavior. The judge refused the same questions of Lois
       Helmick, a defense witness, to be asked in front of the jury. This was also
       preserved by an offer of proof.

       Based on our review of Cochran’s brief and the record, we cannot say that

Cochran has successfully demonstrated that the trial court erred in limiting cross-

examination of the complained-of topic in this issue. See TEX. R. APP. P. 38.1(i); see also

Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 2d 674 (1986)

Cochran v. State                                                                       Page 5
(noting that the right of cross-examination is not unlimited and that the trial court

retains wide latitude to impose reasonable limits on cross-examination); Irby v. State,

327 S.W.3d 138, 145 (Tex. Crim. App. 2010) (“Nonetheless, the trial judge retains wide

latitude to impose reasonable limits on such cross-examination . . . .”). As such, we

overrule Cochran’s second issue.

                                    IV.   CONCLUSION

       Having overruled both of Cochran’s issues on appeal, we affirm the judgments

of the trial court.




                                               AL SCOGGINS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
(Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed April 16, 2015
Do not publish
[CR25]

*(Chief Justice Gray concurs in the Court’s judgment of affirmance without a separate
opinion.)




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