                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00204-CR


                       LORENZO CECIL GRAVES, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 47th District Court
                                   Randall County, Texas
               Trial Court No. 23,535-A, Honorable Dan L. Schaap, Presiding

                                      March 5, 2014

                           MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Appellant, Lorenzo Cecil Graves, appeals his conviction for continuous sexual

abuse of a young child. Through a single issue, he contends that the trial court erred in

admitting a video tape of an interview wherein the child discussed what had been done

to her by appellant. According to appellant, the video was inadmissible under Texas

Rule of Evidence 801(e)(1)(B), and its admission (given that violation of the evidentiary

rule) violated his rights to due process and equal protection of the law. We overrule the

issue and affirm.
       For purposes of disposing of the appeal, we assume arguendo that appellant

preserved his complaint.      Next, we review the issue under the standard of abused

discretion. Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007). That

standard obligates us to leave the trial court's ruling alone so long as it falls within the

zone of reasonable disagreement. Benitez v. State, 5 S.W.3d 915, 918 (Tex. App.—

Amarillo 1999, pet. ref’d).

       Rule 801(e) is entitled “Statements Which Are Not Hearsay,” and 801(e)(1)(B)

states that a prior statement by a witness is when “[t]he declarant testifies at the trial or

hearing and is subject to cross-examination concerning the statement, and the

statement is: . . . consistent with the declarant’s testimony and is offered to rebut an

express or implied charge against the declarant of recent fabrication or improper

influence or motive.” TEX. R. EVID. 801(e)(1)(B). Appellant contends that pursuant to

this rule, the submission of the prior recorded interview of the child/witness in “its

entirety, even without an attempt to edit to specific instances of consistent testimony,” is

error and denied appellant both due process and equal protection of law. This is so

because there is a question on whether “the trial testimony of the child/witness was truly

impeached.”

        Excerpts from the reporter's record prove appellant's contention to be

inaccurate. For instance, on cross examination, trial counsel asked the child victim the

following questions:


       Q.     Okay. And January 21st of -- of -- of 2012 -- you first said 2010,
              then '11, and then corrected yourself to '12. Is that correct?

       A.     Yes.



                                             2
Q.   Okay. Now, how often would you go see -- how often would you go
     see your dad?

A.   Only in the summer.

Q.   Okay. So during the regular year you lived here?

A.   Yes.

                                *****

Q.   Okay. All right. At any point did you ever want your mom and dad
     to get back together?

A.   When I was little, yeah.

Q.   Why?

A.   Because I wanted my dad in my life.

Q.   Okay. Okay. Do you have a good relationship with your dad?

A.   Yes.

Q.   How was your -- do you -- how was your relationship with your
     mother?

A.   Good.

Q.   Okay. How do you like Chad? [her mother’s boyfriend]

A.   He's good.

Q.   Okay. Did it ever cause you any concern with another guy moving
     into the house with you? Does that cause you some fear?

                                *****

Q.   Okay. Now, there was a couple of times that you say that -- that
     these exercises [sexual contacts] occurred, but you can't remember
     exactly when. Is that a fair statement?

A.   Yes.

                                *****



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Q.   Okay. When you were writing your statement, did anyone -- did –
     did anyone ever -- did you have any questions about what might
     need to go in the statement and ask any questions to either your
     mom or the police officer?

A.   Yes.

Q.   Okay. And did -- did -- who -- who told you how to fill out the top of
     the form?

A.   The police officer.

Q.   Okay. Now, did you -- did you fill that in or did he fill that in?

A.   I did.

Q.   Okay. All right. And I'm assuming that he didn't just say, just start
     writing a statement. That you had to ask some questions about how
     to write the statement. Correct?

A.   Yes.

Q.   Okay. Who did you ask those questions?

A.   The police officer.

                               *****

Q.   Okay. All right. And at that point, the police officer tells you what to
     put on the top of the form. Correct?

A.   Yes.

Q.   Okay. And at some point -- I'm assuming you didn't just start
     writing, did you?

A.   No.

Q.   Okay. Who did -- who did -- who's the first person you asked to say,
     hey, how do I do this?

A.   The police officer.

                               *****



                                      4
Q.   And -- and you received assistance during this statement on -- on
     kind of -- some help on that. Is that right?

A.   Yes.

                              *****

Q.   Okay. All right. And did your mom help as well -- help you fill out the
     statement with the police officer?

A.   Yes.

Q.   Okay. And did she help the police officer with the dates and stuff?

A.   Yes.

                              *****

Q.   Okay. Now, you went down to Austin and stayed and then finally --
     and then you came back up here. Is that right?

A.   Yes.

                             *****

Q.   Okay. Have you talked to any other counselors or anybody else
     about this case other than what you and I have already talked
     about?

A.   Yes.

Q.   When was that?

A.   It was after we went to the Bridge.

Q.   Okay. Do you remember where that was?

A.   I don't remember where. It was like a place like -- I don't know,
     Jennifer or whatever.

Q.   Okay. Do you still talk to Jennifer?

A.   My mom was thinking about it.

Q.   Okay. When was the last time you saw Jennifer?



                                    5
       A.     Before I left to Austin.

       Q.     Okay. How long ago was that?

       A.     I don't know.

       Q.      Okay. How many times did you see Jennifer?

       A.      About three times.

       Q.     Okay. Is there any reason -- did you want to stop seeing Jennifer?

       A.     No.

                                         *****

       Q.     Okay. All right. And from what I gathered from what you said, do
              you -- do you -- do you remember ever telling Chloe [the Bridge
              interviewer] that his boy part ever touched your skin?

       A.      No.

       Q.     Okay. And you said the slimy stuff was yellow?

       A.     Yes.

       Q.     Not white?

       A.     No.

State’s redirect:

       Q.     Okay. Did you make all this up about your stepdad Lorenzo so your
              parents would get back together?

       A.     No.

       Q.     Do your mom and dad even talk to each other?

       A.     Sometimes.

Re-cross:

       Q.     I just have -- I have some questions about something. Now, you
              had mentioned that -- something about contacts. Okay? Do you
              remember that conversation just a second ago?


                                             6
        A.      Yes.

        Q.      I assume you do. And my question is to you, when you talked to
                the people at the Bridge and you talked to the police officer and in
                your original testimony about what happened, you -- you never told
                anybody anything about contacts, did you?1


        A.      No.

        Q.      The first time you said anything about contacts is when -- is when
                the -- the other attorney said that, isn't it?

        A.      Yes.

                                             *****

        Q.      Okay. So it’s your -- you’re telling this jury at no time you’ve ever
                told your mother about all the exercises or about anything like this?

        A.      I told her about all the exercises, just not when some of it all
                happened.



        At closing argument, defense counsel also argued, among other things, that the

victim's description of the “slimy yellow substance” which she discovered between her

legs was a “small detail . . . [m]aybe a detail a lawyer would think of . . . it’s a small

detail that for some reason struck me as unusual.” (Emphasis added). The "lawyer" to

which appellant alluded was the prosecutor.

        At the very least, reasonable minds could interpret the foregoing exchange as

effort by the defense to suggest that the child victim 1) had been coached by the police,

her mother and the prosecutor, 2) fabricated for or provided to the jury a version of the

events differing from what she originally told the police and Bridge interviewer at the first


        1
          The victim testified that appellant told her if she “[did the exercises] one more time he [would]
buy the [contact lenses] for [her].”

                                                    7
outcry, and 3) so fabricated her testimony for the purpose of rejoining her mother and

father. Indeed, that seemed to be how the trial court viewed the exchange in deciding

to admit the evidence.     Its statement that “. . . certainly there has been a line of

questioning in the issue of the veracity, the credibility of the testimony we’ve heard thus

far and whether it’s been influenced, et cetera has been put into play” illustrates as

much. And, we must defer to the trial court, who is able to observe "the tone and tenor

of the questioning, combined with the cross-examiner's demeanor, facial expressions,

pregnant pauses, and other nonverbal cues." Hammons v. State, 239 S.W.3d 798, 808

(Tex. Crim. App. 2007) (also stating that in assessing whether cross-examination of a

witness makes an implied charge of fabrication or improper motive, the trial court

considers not only the totality of the questioning but also may consider clues from voir

dire, opening statements and closing arguments) (Emphasis added).

      As for the suggestion that the State failed to show the prior consistent statement

was made before the motive to fabricate arose, such is an element of Rule 801(e)(3)(B).

Houghton v. State, 805 S.W.2d 405, 407-408 (Tex. Crim. App. 1990).                And, as

mentioned above, defense counsel's cross-examination of the victim followed by his

comment during summation about a “detail a lawyer would think of” could reasonably be

construed as suggesting that the prosecutor influenced the victim's testimony. Given

that the video memorialized statements made long before trial, there existed basis upon

which the trial court could have reasonably determined that the comments preceded the

prosecutor’s supposed effort to influence the victim. See Martinez v. State, 276 S.W.3d

75, 82-83 (Tex. App.—San Antonio 2008, pet. ref’d) (so holding under like

circumstances).



                                            8
       The deference we must afford the trial court and the circumstances of record

preclude us from holding that the trial court abused its discretion in admitting the video.

Accordingly, the judgment of the trial court is affirmed.



                                                              Per Curiam



       Do not publish.




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