                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-330-CR


ALLAN SHANE WESTFALL                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

                                    ------------

      FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

                                    ------------

                         MEMORANDUM OPINION1

                                    ------------

I.    Introduction

      Appellant Allan Shane Westfall was charged with the offense of failure

to identify as a fugitive. 2 He was convicted after a jury trial and sentenced to



      1
           See Tex. R. App. P. 47.4.
      2
         The information charged Appellant with intentionally giving a false or
fictitious name, address, or date of birth to a peace officer while lawfully
arrested or detained and while a fugitive from justice with a valid arrest warrant
outstanding. See Tex. Penal Code Ann. § 38.02(b) (Vernon Supp. 2009). An
one year of jail confinement and a fine of $4,000. In three points, Appellant

challenges the legal and factual sufficiency of the evidence to support his

conviction and complains that the trial court abused its discretion by excluding

evidence crucial to his defense. We reverse the conviction and judgment of the

trial court and remand this cause for a new trial.

II.   Factual and Procedural Background

      On November 13, 2006, at 8 p.m., Officer Todd Schuler stopped

Appellant’s vehicle because of a defective license plate light. See Tex. Transp.

Code Ann. § 502.409(a)(6) (Vernon Supp. 2009). Officer Schuler testified at

trial that when he approached Appellant’s vehicle, he noticed Appellant “was

extremely nervous” and stated he had left his driver’s license at home. Officer

Schuler stated that Appellant told him that his name was “Al Westfall.”

      Testifying from his report because he did not remember what date of birth

Appellant gave him, Officer Schuler said Appellant gave a social security

number with the last four digits of 9363, gave a date of birth of 6/28/74, and

stated that he was thirty years old. Officer Schuler returned to his vehicle to

ask Denton County police dispatch to verify Appellant’s identity and driver’s

license status.



offense under this subsection is a Class A misdemeanor when the defendant is
a fugitive from justice at the time of the offense. Id. at § 38.02(d)(2).

                                       2
      Officer Schuler testified that dispatch told him Appellant’s date of birth

was actually 6/28/75, the social security number was incorrect, and Appellant

had three outstanding warrants from Dallas County. The officer then returned

to Appellant’s vehicle and again asked for Appellant’s name, social security

number, and date of birth. Officer Schuler testified Appellant gave the same

information, at which point he asked Appellant to step out of his vehicle,

conducted a pat-down search of Appellant, and handcuffed him.            Officer

Schuler testified that after being handcuffed, Appellant admitted he had given

the wrong information and provided Officer Schuler his correct social security

number and correct year of birth—1975.        Officer Schuler placed Appellant

under arrest and placed him in the back of the police car.       Officer Schuler

further testified that he conducted a search of Appellant’s vehicle and found his

driver’s license in a “cut-out” of the dashboard of his vehicle, which would have

been within Appellant’s reach when he was in the car. Officer Schuler testified

that, based on his training and experience, he believed Appellant intentionally

gave him a false date of birth.

      Appellant’s defensive theory, explained by his counsel in opening

statement and in colloquies with the trial court, was that Appellant told Officer

Schuler the incorrect year of birth in an attempt to explain that the information

in the Denton County system differed from the correct date of birth on his



                                       3
driver’s license. Officer Schuler stated he did not recall Appellant’s explaining

that Denton County had the wrong date of birth and social security number in

its system. If Appellant had provided that explanation, Officer Schuler testified

he probably would have put that in the police report, but he was not sure he

would have done so. On cross-examination, Officer Schuler confirmed that, to

his knowledge, his video camera was turned on that evening and the events

were recorded; however, he did not have the tape and did not know what had

happened to the tape.

      During Appellant’s case, he offered a file from a previous charge of failure

to identify from Denton County in which his birth date was shown as 1974,

rather than 1975, and the social security number was wrong, but the trial court

concluded that he had failed to show relevance and excluded that evidence.

      Appellant called one witness in his defense, Dana Cassidy, who testified

that she was a friend of Appellant’s and had known him since high school. She

testified that Appellant kept a piece of paper in his wallet with his license that

explained his actual birthday due to an ongoing problem trying to prove his date

of birth that summer because “the system [] had his birthday wrong.” Cassidy

stated that Appellant had the same problem when he was arrested in June

2005. Cassidy testified that Appellant called her on her cell phone at 8:01 p.m.




                                        4
on the date of this incident and told her that he was being pulled over at that

moment, and she heard Appellant talking with the officer at that time.

       At that point, the State took Cassidy on voir dire. She explained that she

heard the officer ask Appellant for his license and registration because he

placed the “open” phone on the seat. The trial court instructed the jury to

leave the courtroom for further voir dire examination of the witness, in which

Cassidy stated she heard Appellant explain to the officer the problem with the

date of birth, that the dates on his driver’s license and in the system were

different, and that the date of birth was wrong in the system. The trial court

sustained the State’s hearsay objection to this testimony.

III.   Legal Sufficiency of the Evidence

       In his first point, Appellant contends that the evidence was legally

insufficient to support the verdict because he was not lawfully detained by the

officer at the time he allegedly gave the false information.

       In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.            Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).



                                        5
      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See Tex. Code Crim.

Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568

(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when

performing a legal sufficiency review, we may not re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the factfinder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,

529 U.S. 1131 (2000).         Instead, we “determine whether the necessary

inferences are reasonable based upon the combined and cumulative force of all

the evidence when viewed in the light most favorable to the verdict.” Hooper

v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume

that the factfinder resolved any conflicting inferences in favor of the

prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.

      During a routine traffic stop, an officer may demand identification, a valid

driver’s license, and proof of insurance from the driver, and the officer may

detain the driver in order to check for outstanding warrants. See Walter v.



                                         6
State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000); Anderton v. State, No. 03-

08-00262-CR, 2009 WL 349144, at *2 (Tex. App.—Austin Feb. 13, 2009, no

pet.) (mem. op., not designated for publication). Texas Penal Code section

38.02(b) addresses the offense of failure to identify and states that,

      (b)   A person commits an offense if he intentionally gives a false
            or fictitious name, residence address, or date of birth to a
            peace officer who has:

            (1)    lawfully arrested the person;

            (2)    lawfully detained the person; or

            (3)    requested the information from a person that the peace
                   officer has good cause to believe is a witness to a
                   criminal offense.
            ....

      (d)   If it is shown on the trial of an offense under this section that
            the defendant was a fugitive from justice at the time of the
            offense, the offense is:

            ...

            (2)    a Class A misdemeanor if the offense is committed
                   under Subsection (b).

Tex. Penal Code Ann. § 38.02(b), (d)(2). 3

      An officer may initiate a traffic stop if he reasonably suspects that the

driver has committed a traffic violation. Whren v. U.S., 517 U.S. 806, 810,

116 S. Ct. 1769, 1772–73 (1996); Ford v. State, 158 S.W.3d 488, 492 (Tex.

      3
       See St. George v. State, 237 S.W.3d 720, 724 (Tex. Crim. App.
2007).

                                        7
Crim. App. 2005).       A traffic stop “significantly curtails the freedom of

movement for the driver and passenger,” making it a Fourth Amendment seizure

equivalent to a temporary detention. 4 See Berkemer v. McCarty, 468 U.S. 420,

439, 104 S. Ct. 3138, 3150 (1984); Davis v. State, 947 S.W.2d 240, 242–45

(Tex. Crim. App. 1997); St. George v. State, 197 S.W.3d 806, 815 (Tex.

App.—Fort Worth 2006) (op. on reh’g), aff’d, 237 S.W.3d 720 (Tex. Crim.

App. 2007); see also Johnson v. State, 912 S.W.2d 227, 234–35 (Tex. Crim.

App. 1995) (holding that an investigative detention occurs when a police officer

restrains a person’s freedom of movement, either by physical force or by show

of authority). The U.S. Supreme Court held in Brendlin v. California that, for a

police-ordered traffic stop, a seizure occurs the moment a driver’s car comes

to a halt on the side of the road. 551 U.S. 249, 257, 127 S. Ct. 2400, 2410

(2007).

      The jury heard uncontradicted evidence that the officer initiated a valid

traffic stop for a license plate violation and that Appellant gave him a false date

of birth and social security number twice during the detention. The jury heard

the time line for the stop in which Appellant gave Officer Schuler a disparate

      4
        The test distinguishing a police encounter from a police detention is
whether “taking into account all circumstances surrounding the encounter, the
police conduct would have communicated to a reasonable person that he was
not at liberty to ignore the police presence and go about his business.” See
State v. Garcia-Cantu, 253 S.W.3d 236, 242 (Tex. Crim. App. 2008).


                                        8
birth date and age before the officer went to his patrol car to investigate his

driver’s license status and any potential warrants.      The jury further heard

Officer Schuler’s testimony that, after he obtained information from dispatch

as to Appellant’s correct date of birth and that the social security number he

gave was wrong, Appellant repeated the false information, causing Officer

Schuler to request that Appellant step out of his car to be patted down and

handcuffed.

      Appellant argues that he was not “physically forced to yield to the

officer” and cites Quick v. State to support his legal sufficiency challenge. 999

S.W.2d 79, 81 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding

appellant not lawfully detained or arrested when he gave false information).

However, Quick involved a police confrontation when a police officer knocked

on the defendant’s door, and the defendant, who opened the door (but stood

behind burglar bars across the doorway), at first gave a false name but then

acknowledged who he was, saying, “It’s me, it’s me,” and surrendered to the

officer when told that the officer had an arrest warrant. Id. at 80. The court

of appeals held that the evidence was legally insufficient to support a failure to

identify conviction because the appellant had not been arrested and had not

yielded to the officer’s show of authority at the time he gave a false name and,

therefore, was not detained as required by the statute. Id. at 80–81.



                                        9
       In this case, Officer Schuler lawfully detained Appellant the moment he

pulled his vehicle over for a legitimate traffic law violation. See Brendlin, 551

U.S. at 262, 127 S. Ct. at 2410; Berkemer, 468 U.S. at 439, 104 S. Ct. at

3150; Davis v. State, 947 S.W.2d 240, 242–45 (Tex. Crim. App. 1997); see

also Waalee v. State, No. 09-07-00245-CR, 2008 WL 5622656, at *2 (Tex.

App.—Beaumont Feb. 11, 2009, no pet.) (mem. op., not designated for

publication) (stating that it would be reasonable to infer that by stopping his

vehicle after the officer turned on his overhead lights, the driver was aware that

he was “being detained by a law enforcement officer”). Appellant yielded to

Officer Schuler’s show of authority when Appellant pulled his vehicle over for

the traffic stop, and this detention continued while he provided his incorrect

identification and waited for the officer to check it. See Walter, 28 S.W.3d at

542.    Furthermore, Appellant’s meeting with Officer Schuler was not a

consensual encounter; it was a lawful detention for a traffic violation that had

already occurred and continued based upon reasonable suspicion. It is unlikely

that Appellant felt “free to leave” or “go about his business” during the traffic

stop. See Garcia-Cantu, 253 S.W.3d at 242; see also Berkemer, 468 U.S. at

436–37 (stating that “few motorists would feel free either to disobey a

directive to pull over or to leave the scene of a traffic stop without being told

they might do so”).



                                       10
      Viewing the evidence in a light most favorable to the prosecution, the jury

could have found beyond a reasonable doubt that Appellant intentionally gave

false information to Officer Schuler while he was lawfully detained. See Tex.

Penal Code Ann. § 38.02(b); see Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Clayton, 235 S.W.3d at 778. We hold that the evidence is legally sufficient to

support the trial court’s judgment and overrule Appellant’s first point.

IV.   Factual Sufficiency of the Evidence

      Appellant argues in his second point that the evidence was factually

insufficient to support the verdict because of the evidence of a problem with

Appellant’s identification information in the Denton County police system. We

will liberally interpret Appellant’s brief as challenging the factual sufficiency of

the “intent” element of the false identification offense because of Appellant’s

defensive theory that he gave false and correct identification information to

Officer Schuler as an attempt to remedy a mistake in the police system. A

person “acts intentionally, or with intent, with respect to the nature of his

conduct or to a result of his conduct when it is his conscious objective or desire

to engage in the conduct or cause the result.” Tex. Penal Code Ann. § 6.03(a)

(Vernon 2003).     A factfinder may infer intent from the accused’s acts and

words as well as the surrounding circumstances.           Baldwin v. State, 264

S.W.3d 237, 242 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).



                                        11
      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417.

      We may not simply substitute our judgment for the factfinder’s. Johnson

v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d

404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals that a

different result is appropriate, we must defer to the jury’s determination of the

weight to be given contradictory testimonial evidence because resolution of the

conflict “often turns on an evaluation of credibility and demeanor, and those

jurors were in attendance when the testimony was delivered.” Johnson, 23

S.W.3d at 8. Thus, unless we conclude that it is necessary to correct manifest

injustice, we must give due deference to the factfinder’s determinations,




                                       12
“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.

      In his factual sufficiency argument, Appellant points out that there was

no contradictory testimony because the evidence about his version of what he

told the officer was excluded. He argues that he was thus precluded from

showing his side of the case.      Nevertheless, he argues that the evidence

supporting the verdict is so weak as to be factually insufficient. Viewing the

State’s evidence in a neutral light, Appellant’s actions showed that he

intentionally gave a false date of birth and false social security number.

Although most of her testimony was excluded, the jury was able to hear

Cassidy’s testimony that there was an ongoing problem with Appellant’s date

of birth in the Denton County records and that Appellant carried a piece of

paper in his wallet because “in the summer in the system they had his birthday

wrong.” The jury was free to believe or disbelieve all or part of either Cassidy’s

or Officer Schuler’s testimony, and we give deference to the jury’s findings.

See Johnson, 23 S.W.3d at 8–9.           Based on all the evidence regarding

Appellant’s acts and words, a jury reasonably could have accepted Officer

Schuler’s testimony that Appellant intended to give false information to Officer

Schuler during the traffic stop. See Tex. Penal Code Ann. § 6.03(a) (Vernon

Supp. 2009); Baldwin, 264 S.W.3d at 242.



                                       13
      Viewing the evidence in a neutral light, we cannot say that the evidence

is so weak that the jury’s determination that Appellant intentionally gave false

information to an officer while he was lawfully detained was clearly wrong or

manifestly unjust. We also cannot say that any evidence favorable to Appellant

so greatly outweighs the evidence supporting the conviction that the jury’s

determination is unjust. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d

at 414–15, 417. We hold that the evidence is factually sufficient to support

the verdict and overrule Appellant’s second point.

V.    Exclusion of Evidence

      Appellant argues in his third point that the trial court improperly excluded

evidence consisting of testimony from Cassidy and the file from his prior

Denton County conviction.

      A.    Exclusion of Dana Cassidy’s Testimony

      Appellant argues that the trial court improperly excluded Cassidy’s

testimony about what she overheard on the cell phone while Appellant was

talking with Officer Schuler during the traffic stop. Specifically, the trial court

excluded as hearsay Cassidy’s testimony on voir dire outside the presence of

the jury, as follows:

            Q. And what did you hear?

            A. He gave his name, Allan Shane Westfall, and his
            date of birth.


                                        14
            Q. Okay, and what—did he give any explanation about
            the problem with the date of birth?

            A. Yes.

            Q. And what did he say?

            A. He told him that his date of birth is wrong.

            Q. Wrong in what way?

                  ....

            A. The—the date of births are different. They’re not the
              same on the driver’s license as they are in the system.

      Appellant offered Cassidy’s testimony as evidence of Appellant’s behavior

at the time, and as to what Cassidy perceived, as a “present sense impression,”

as an exception to the hearsay rule pursuant to Texas Rule of Evidence 803(1).

“Hearsay” is a statement, other than one made by the declarant while testifying

at trial or during a hearing, offered in evidence to prove the truth of the matter

asserted. Tex. R. Evid. 801(d). One of the listed exceptions to the hearsay rule

is testimony constituting a “present sense impression,” which is defined as a

“statement describing or explaining an event or condition made while the

declarant was perceiving the event or condition, or immediately thereafter.”

Tex. R. Evid. 803(1).

      The rationale for the present sense impression exception is that (1) the

report at the moment of the thing then seen or heard is safe from any error



                                       15
resulting from defect of memory of the declarant, and (2) there is little or no

time for a calculated misstatement. Fischer v. State, 252 S.W.3d 375, 380

(Tex. Crim. App. 2008). Narratives, opinions, or calculated statements are not

admissible as present sense impressions. See id. at 381.

      Appellant claims that Cassidy’s perception of the conversation between

Appellant and Officer Schuler, as heard through Appellant’s cell phone, qualified

as a present sense impression. It is unclear whether Appellant is contending

that Cassidy or Appellant is the “declarant.” Cassidy did testify that she heard

Appellant speaking with Officer Schuler during the traffic stop and that

Appellant’s statements were contemporaneous to the event. See Russo v.

State, 228 S.W.3d 779, 808–09 (Tex. App.—Austin 2007, pet. ref’d).

However, Cassidy merely overheard Appellant answering questions from the

officer while his cell phone was open on the front seat; he was not describing

the event that was happening at that time. His utterances were, at best, a

defense of his predicament regarding his birth date to the officer during a

routine traffic stop. See Fischer, 252 S.W.3d at 381 (stating that 803(1) is

“predicated on the notion that the utterance is a reflex product of immediate

sensual impressions, unaided by retrospective mental processes”).

      The statements Cassidy overheard Appellant make to the officer were not

explanatory or descriptive of the event transpiring at that time to qualify as a



                                       16
present sense impression under rule 803(1). See Fischer v. State, 207 S.W.3d

846, 859 (Tex. App.—Houston [14th Dist.] 2006), aff’d, 252 S.W.3d 375

(Tex. Crim. App. 2008) (holding that rule 803(1) was not applicable when the

officer did not merely explain or describe events but participated in and created

the events in his recorded observations).

      If Appellant is arguing that Cassidy is the “declarant,” we disagree that

her testimony as to what she heard constitutes a “present sense impression.”

First, Cassidy’s only statement was her testimony at the trial. A statement, to

qualify for the exception of “present sense impression,” must be “other than

one made by the declarant while testifying at a trial or hearing.” Tex. R. Evid.

801(d).   Second, her excluded testimony constituted her own reflective

narrative of the conversation she personally overheard between Appellant and

Officer Schuler. See Fischer, 252 S.W.3d at 381. Third, her testimony at trial

was not made contemporaneously with the event she was describing but long

afterward; thus, it was not a “present sense impression.”       See Rabbani v.

State, 847 S.W.2d 555, 560 (Tex. Crim. App. 1992), cert. denied, 509 U.S.

926 (1993).

      Nevertheless, Cassidy’s testimony was not hearsay because it was not

offered for the truth of the matter asserted. Tex. R. Evid. 801(d) (defining

“hearsay” as an out-of-court statement offered as evidence to prove the truth



                                       17
of the matter asserted). “An extrajudicial statement which is offered for the

purpose of showing what was said rather than for the truth of the matter stated

therein does not constitute hearsay.” Dinkins v. State, 894 S.W.2d 330, 347

(Tex. Crim. App.), cert. denied, 516 U.S. 832 (1995) (holding patient

application form admissible to show how defendant became a suspect); Davis

v. State, 169 S.W.3d 673, 675–76 (Tex. App.—Fort Worth 2005, no pet.)

(holding police testimony regarding anonymous tips that focused investigation

on defendant as a suspect was admissible nonhearsay).

      Appellant did not offer Cassidy’s testimony describing his statements to

the officer to show the truth of Appellant’s correct birth date. That fact was

undisputed. Her testimony was offered to show what she heard Appellant say

to the officer—that he gave both his right and wrong birth date in an attempt

to explain that a wrong birthday was listed in the system. Because Appellant

was charged with giving false identification, what he said was demonstrative

evidence, and her testimony offered to show what he said was not inadmissible

as   hearsay.   See   Tamayo   v.   State,   924   S.W.2d   213,   215   (Tex.

App.—Beaumont 1996, no pet.) (holding typewritten statement by defendant

alleged by State to be false as basis for perjury charge admissible as evidence

of what defendant stated and as demonstrative evidence); see also Guidry v.

State, 9 S.W.3d 133, 152 (Tex. Crim. App. 1999) (listing of person in address



                                      18
books of two alleged co-conspirators admissible as evidence of link between

them); Rezaie v. State, 259 S.W.3d 811, 814 (Tex. App.—Houston [1st Dist.]

2007, no pet.) (holding printout of credit application admissible to show

application was made, not offered to show that information in application was

true).

         Cassidy’s testimony was relevant to contradict Officer Schuler’s version

of the encounter in which Officer Schuler testified that Appellant gave the

wrong birth date twice and that he did not recall any explanation of a mistake

in the Denton County system.         And Cassidy’s testimony was relevant to

Appellant’s intent:     to show why he provided the wrong birth date.         The

testimony was not inadmissible as hearsay, and the trial court abused its

discretion by excluding it. 5




         5
         In considering a trial court’s ruling admitting or excluding evidence, we
determine whether the trial court abused its discretion. Page v. State, 213
S.W.3d 332, 337 (Tex. Crim. App. 2006). We will uphold a trial court’s ruling
on the admissibility of evidence as long as the trial court’s ruling was within the
“zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372,
391 (Tex. Crim. App. 1991) (op. on reh’g). A trial court abuses its discretion
when it so deviates from applicable guidelines and principles that the decision
falls outside the zone of reasonable disagreement. Gomez v. State, 49 S.W.3d
456, 458 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (citing Salazar v.
State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001).


                                        19
      B.    Harm Analysis

      Appellant contends he was effectively precluded from presenting his

defense. Exclusion of a defendant’s evidence will be constitutional error only

if the evidence forms such a vital part of the case that exclusion effectively

precludes the defendant from presenting a defense. Potier v. State, 68 S.W.3d

657, 665 (Tex. Crim. App. 2002); see Tex. R. App. P. 44.2(a). While the

testimony describing Appellant’s statements to Officer Schuler was relevant to

the defensive theory that Appellant was trying to correct a mistake in the

system, its exclusion did not “significantly undermine fundamental elements of

the accused’s defense.” Potier, 68 S.W.3d at 665 (citing United States v.

Scheffer, 523 U.S. 303, 315, 118 S. Ct. 1261, 1268 (1998)). Appellant was

able to argue his theory in opening statement, supported by testimony from

Cassidy in the jury’s presence, regarding a mistake in the system. Where a

defendant is not prevented from presenting the substance of his defense to the

jury, his inability to present his case in the form and to the extent he desired

does not constitute a denial of due process or other constitutional right. See

id.

      Instead, the rule that applies to this error in excluding evidence is Texas

Rule of Evidence 103(a). Tex. R. Evid. 103(a) (“Error may not be predicated on

a ruling which admits or excludes evidence unless a substantial right of the



                                       20
party is affected . . . .”).   A nonconstitutional error that does not affect

substantial rights must be disregarded. Tex. R. App. P. 44.2(b). The erroneous

admission of evidence does not affect substantial rights if, after examining the

record as a whole, we have “fair assurance that the error did not influence the

jury, or had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex.

Crim. App. 2002). In assessing the likelihood that the error adversely affected

the jury’s verdict, the appellate court should consider everything in the record,

including the evidence admitted, the nature of the evidence supporting the

verdict, the character of the alleged error, and how it might be considered with

other evidence in the case. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim.

App. 2000). We may also consider the jury instructions, the State’s theory,

and any defensive theories, closing arguments, and even voir dire, if applicable.

Id.

      In this case, the evidence admitted directly bearing on the issue of failure

to identify consisted solely of Officer Schuler’s testimony. The State’s theory

was that Appellant gave a false identity in fear of Officer Schuler discovering

that he had outstanding warrants. Appellant’s opposing theory was that he

gave the fictitious information in conjunction with his correct birth date to

explain a discrepancy in the Denton County records. As the State points out,

Cassidy was able to testify to some information relevant to Appellant’s



                                       21
defensive theory, including an ongoing problem of trying to prove his date of

birth, that he carried a piece of paper in his wallet because the “system” had

his birthday wrong, that he telephoned Cassidy at the time he was stopped, and

that he had previously been arrested on June 1, 2005, in Denton County for

failure to identify. The State also points out that Appellant’s counsel argued his

theory in opening statement when Appellant’s counsel stated:

          Well, I agree with a lot of what [the prosecutor] said except
          one little thing that she hasn’t mentioned, is that I’m going to
          show later on, the evidence will show that in the Denton
          County system his birthday got put in incorrect. They have
          it—at a certain point they put it in as 6/28/74. And so he’s
          been battling a mistake that the Denton County System has
          made.

                ....

          And so when you go to hear the evidence, you might want to
          take into account the alleged mistake the State has made
          here. Thank you very much.

      But despite the foregoing, Cassidy’s specific testimony that was

excluded—that Appellant told Officer Schuler of the mistake and his correct

birth date—went to the heart of Appellant’s sole defensive theory. The offense

with which Appellant was charged was based on what he said to Officer

Schuler. The State’s theory hinged on Officer Schuler’s testimony as to what

Appellant said to him, and Cassidy’s version of what Appellant said directly

contradicted that of Officer Schuler. Moreover, because the testimony was



                                       22
excluded, the State was able to urge the jury in closing argument, “Don’t go

back there and go, well, the girlfriend came in and it looks like she has a story

to tell, [] it doesn’t go with this case, and you’re not to consider it.”

      Appellant’s counsel, in response, was able to argue only that the evidence

simply was not at the level of proof beyond a reasonable doubt because “it all

comes down to one officer” and “what do you believe about his testimony at

this point?” Because of the exclusion of what Cassidy heard Appellant say,

Appellant was unable to present or argue his contradictory version of what he

told the officer, the critical event on which the State’s entire case rested.

Appellant was deprived of the right to present the key portion of his defensive

theory. We conclude that the trial court’s exclusion of Cassidy’s testimony

could have adversely influenced the jury and had more than a slight effect on

the verdict.   We hold that the wrongful exclusion of the evidence affected

Appellant’s substantial rights. See, e.g., Melgar v. State, 236 S.W.3d 302,

309 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding, where evidence

presented opposing versions of events, improper exclusion of character witness

evidence that defendant was considered honest affected defendant’s

substantial rights); Cruz v. State, 122 S.W.3d 309, 315 (Tex. App.—Houston

[1st Dist.] 2003, no pet.) (holding wrongful exclusion of identification testimony

providing defendant with alibi deprived appellant of defensive evidence and



                                        23
affected his substantial rights); Miller v. State, 42 S.W.3d 343, 346 (Tex.

App.—Austin 2001, no pet.) (holding exclusion of testimony that individual

repeatedly assaulted and beat appellant lent credibility to her duress defense).

We sustain this portion of Appellant’s third point.

      C.    Exclusion of File Contents

      Appellant also asserts that the trial court improperly sustained the State’s

objection to Appellant’s evidence “from a prior felony conviction show[ing]

incorrect information about [] [A]ppellant.” The objected-to evidence consisted

of a clerk’s file containing Appellant’s unrelated 2005 case that showed his

name and social security number incorrectly placed in the Denton County

computer system. Officer Schuler was unable to testify about this case file or

any clerical mistake because he retrieved Appellant’s date of birth and social

security information based on warrants out of Dallas County, not Denton

County. The trial court sustained the State’s objection based on relevance.

      Appellant does not further develop an argument that the evidence

regarding the Denton County clerk’s mistake in the 2005 case was relevant to

his identification on Dallas warrants. Appellant does not explain nor provide

citation to authority to support how the file in question would have supported

his theory. This argument is inadequately briefed, and we decline to address

it. See Tex. R. App. P. 38.1(h); Tong v. State, 25 S.W.3d 707, 710 (Tex.



                                       24
Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001); see also Harkins v.

State, 268 S.W.3d 740, 752 (Tex. App.—Fort Worth 2008, pet. ref’d). We

overrule the remainder of Appellant’s third point.

VI.   Conclusion

      Having sustained part of Appellant’s third point that the testimony of

Cassidy was erroneously excluded as hearsay, we reverse the conviction and

judgment of the trial court and remand this cause for a new trial.




                                           ANNE GARDNER
                                           JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

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

DELIVERED: January 7, 2010




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