Opinion issued April 30, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00185-CR
                           ———————————
                  JAVIA SINQUIZE JOHNSON, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                    On Appeal from the 56th District Court
                          Galveston County, Texas
                      Trial Court Case No. 12-CR-1447


                         MEMORANDUM OPINION

      Appellant, Javia Sinquize Johnson, was charged by indictment with

intentional injury to a child.1 Appellant pleaded not guilty. The jury found her




1
      See TEX. PENAL CODE ANN. § 22.04(a)(1), (e) (Vernon Supp. 2014).
guilty of the lesser-included offense of criminal negligence injury to a child 2 and

assessed punishment at two years’ confinement. In two issues, Appellant argues

the trial court abused its discretion by allowing the State (1) to impeach a witness

with a portion of a prior recorded statement and (2) to question a witness about an

alleged prior extraneous offense by Appellant without proper notice. 3

      We affirm.

                                      Background

      Appellant took her daughter, C.N., to the hospital on May 22, 2012, because

C.N. was suffering seizures and having difficulty breathing. Doctors determined

that C.N. had suffered severe blunt force trauma, causing bleeding inside the brain

and other injuries. As a result, police were notified and began an investigation.

      As part of the investigation, C. McCarty met with J.J., Appellant’s oldest

son. McCarty is a forensic interviewer for the Child Advocacy Center for Children

of Galveston County. McCarty recorded her interview with J.J., questioning him

about what he saw leading up to C.N.’s hospitalization During the interview, J.J.
2
      See id. § 22.04(a)(1), (g).
3
      After the parties filed their briefs, this Court requested briefing from the parties on
      unassigned error. See Pfeiffer v. State, 363 S.W.3d 594, 599 & n.16 (Tex. Crim.
      App. 2012) (holding, unless restricted by statute, courts of appeals in criminal
      cases have jurisdiction to consider any error in a case and may review unassigned
      error, though appellate court usually should first allow parties to brief issue). The
      panel has determined that its request was improvident. Nothing in our order
      should be construed as a determination of the facts present in or absent from the
      record, a ruling on any legal issue, or any other substantive assessment on any
      matter.

                                             2
told McCarty that he saw his mother grab C.N. by the feet, swing her around, and

then bang her head on the floor due to C.N.’s refusal to eat her dinner. J.J.

demonstrated what he saw his mother do with his hands and with a doll.

      The State charged Appellant with intentional injury to a child. Prior to trial,

the State provided Appellant with its intent to introduce evidence of extraneous

offenses. One of those alleged offenses was for witness tampering with her oldest

son, J.J. Specifically, the State alleged that Appellant “[t]old [J.J.] that [Appellant]

did not hurt [C.N.] and that [J.J.] should say that [Appellant] did not hurt [C.N.].”

The State alleged the offense occurred on or about May 21, 2012.

      At trial, the chief prosecutor for the State told the trial court that he had met

with J.J. in November 2013. At that meeting, J.J. began recanting the statements

he made to McCarty. The prosecutor asked J.J. then if anyone had told him what

to say. J.J. responded “that his mother told him to say that she did not hurt [C.N.].”

      When J.J. was first asked at trial about his conversation with McCarty, he

claimed he did not remember meeting with her or any portion of his conversation

with her. The next day, after having an opportunity to review the video of his

conversation with her, J.J. testified that he remembered meeting with her and

admitted saying most of his statements contained in the recording.                  J.J.

equivocated, however, on whether he had used his hands to demonstrate what his




                                           3
mother did to C.N. and on whether he had used a doll to demonstrate what his

mother did to C.N.

      The State sought to question J.J. on whether Appellant had told him what to

say based on the November 2013 meeting and J.J.’s change of story. It sought to

present an excerpt of the video interview with McCarty showing J.J.’s gestures

based on J.J.’s equivocating about what he demonstrated to McCarty. The trial

court permitted both over Appellant’s objections.

                                Standard of Review

      Both of Appellant’s issues concern the admission of evidence. We review a

trial court’s admission or exclusion of evidence for an abuse of discretion.

Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). In determining

whether the trial court abused its discretion, we consider whether the court acted

without reference to guiding rules and principles—that is, whether the court acted

arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.

Crim. App. 1991). We must uphold the trial court’s ruling so long as it is “within

the zone of reasonable disagreement.” Wheeler v. State, 67 S.W.3d 879, 888 (Tex.

Crim. App. 2002).

                              Witness Impeachment

      In her first issue, Appellant argues that the trial court abused its discretion by

allowing the State to impeach a witness with a portion of a prior recorded



                                           4
statement. A party may impeach a witness with evidence of a prior inconsistent

statement if the party first presents the witness with the existence of the statement,

the details and circumstances surrounding the statement, and gives the witness the

opportunity to explain or deny the statement. TEX. R. EVID. 613(a), 61 TEX. B.J.

374, 391 (Tex. & Tex. Crim. App. 1998, amended 2015).4                   “If the witness

unequivocally admits having made such statement, extrinsic evidence of same shall

not be admitted.”     Id.    “If the admission is partial, qualified, or otherwise

equivocal, or if the witness claims to not remember making the prior statement, the

prior statement is admissible for impeachment purposes.”             Ruth v. State, 167

S.W.3d 560, 566 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). “The rule of

admissibility of evidence of prior inconsistent statements should be liberally

construed and the trial judge should have discretion to receive any evidence which

gives promise of exposing a falsehood.” Aranda v. State, 736 S.W.2d 702, 707

(Tex. Crim. App. 1987).

      When the prosecutor first asked J.J. about his conversation with McCarty,

J.J. claimed he did not remember meeting with her or any portion of his


4
      Effective April 1, 2015, the Texas Supreme Court has adopted amendments to the
      Texas Rules of Evidence. See 78 TEX. B.J. 42, 42 (Tex. 2015). The substantive
      changes to Rule 613 keeps the requirements that a witness be given an opportunity
      to explain the prior inconsistent statement or circumstances or statement showing
      bias or interest, but removes these as foundation predicate requirements. Id. at 42–
      43, 65. All other changes are stylistic. Id. at 65. All further citations to Rule 613
      in this opinion refer to the rule as it existed during the parties’ trial.

                                            5
conversation with her. The next day, after having an opportunity to review the

video of his conversation with her, J.J. testified that he remembered meeting with

her and admitted saying most of his statements contained in the recording. J.J.

equivocated, however, on whether he had used his hands to demonstrate what his

mother did to C.N. and on whether he had used a doll to demonstrate what his

mother did to C.N. The State sought to introduce the portion of the video when J.J.

demonstrated with his hands and the doll to impeach J.J.5 The trial court allowed

that portion of the video to be admitted.

      Appellant argues that the video was admitted because J.J. admitted to “the

most damning statements” but denied that they were true. This is incorrect. The

State never argued that anything should be admitted based on J.J.’s claim that the

original statements were false, and the trial court never admitted the video on that

ground. Instead, the only portion of the video that was admitted was the part of the

conversation about which J.J. had equivocated: whether he had used his hands and

a doll to demonstrate what his mother did to C.N. Because J.J. equivocated about
5
      Neither Appellant nor the State addresses whether J.J.’s demonstrative gestures
      constitutes a “statement” for purposes of Rule 613. See TEX. R. EVID. 613(a), 61
      TEX. B.J. 374, 391 (Tex. & Tex. Crim. App. 1998, amended 2015) (establishing
      admissibility requirements for prior inconsistent statement); see also Tex. R. Evid.
      801(a), 61 TEX. B.J. at 393 (defining “statement,” for purposes of hearsay rules, to
      include nonverbal conduct of person if conduct is intended as substitute for verbal
      expression); Foster v. State, 779 S.W.2d 845, 862 (Tex. Crim. App. 1989)
      (distinguishing between types of nonverbal conduct in context of hearsay).
      Instead, both parties treat J.J.’s gestures as statements. Because both parties treat
      J.J.’s gestures as statements, we treat them as statements for purposes of this
      appeal.

                                            6
the gestures he made, Rule 613 permitted the evidence to be admitted to impeach

J.J. See TEX. R. EVID. 613(a).

      Appellant also argues that it was improper for the State to elicit

impeachment testimony from J.J. as a pretext for introducing the video as

substantive proof of what happened to C.N. Appellant correctly argues that the

purpose of Rule 613 is to allow a witness’s credibility to be impeached, not to

create substantive proof of guilt of the defendant. See Arrick v. State, 107 S.W.3d

710, 722 (Tex. App.—Austin 2003, pet. ref’d) (“In the absence of an applicable

hearsay exception, a witness’s prior inconsistent statement may be used to impeach

the witness’s credibility but may not be used as primary evidence of guilt.”). As a

result, it is improper for a party to “call a witness it knows to be hostile for the

primary purpose of eliciting otherwise inadmissible impeachment testimony,

employing such a device as a subterfuge to avoid the hearsay rule.” Id.

      This argument has been waived, however. Appellant did not request an

instruction limiting the jury’s consideration of J.J.’s impeachment testimony and

the accompanying video. Accordingly, the jury could consider it for substantive

purposes, regardless of whether the State established an applicable hearsay

exception. See Arana v. State, 1 S.W.3d 824, 829 (Tex. App.—Houston [14th

Dist.] 1999, pet. ref’d) (“Once evidence is admitted without a proper limiting

instruction, it becomes part of the general evidence in the case and may be



                                         7
considered for all purposes.”); TEX. R. EVID. 105(a), 61 TEX. B.J. at 375 (providing

that evidence that is admissible in limited scope cannot be ground for complaint on

appeal if limiting instruction is not requested).

      We hold the trial court did not abuse its discretion by permitting the State to

impeach J.J. with the portion of the video showing J.J.’s gestures. We overrule

Appellant’s first issue.

                             Prior Extraneous Offense

      In her second issue, Appellant argues that the trial court abused its discretion

by allowing the State to question a witness about an alleged prior extraneous

offense of witness tampering 6 by Appellant without proper notice. The chief

prosecutor for the State told the trial court that, when he had met with J.J. in

November 2013, J.J. began recanting the statements he made to McCarty. The

prosecutor then asked J.J. if anyone had told him what to say. J.J. responded “that

his mother told him to say that she did not hurt [C.N.].” The State sought to

question J.J. on this before the jury. The State claimed it had provided notice of

the extraneous offense. Appellant admitted receiving notice, but claimed it was

deficient because it lacked a date for the alleged offense. The State responded that

it had provided a date in the notice, though it could not be sure of the exact date of

the extraneous offense.


6
      See TEX. PENAL CODE ANN. § 36.05(a)(1) (Vernon Supp. 2014).

                                           8
      When requested, the State must provide “reasonable notice” of any

extraneous offenses committed by the defendant that the State intends to introduce

at trial. TEX. R. EVID. 404(b), 61 TEX. B.J. at 378. Rule 404(b) does not define

“reasonable notice.”7 Even assuming that the State was required to provide notice

of the date of the alleged offense and that the State’s notice was insufficient,

Appellant has failed to establish how she was harmed by the error.

      When the State asked J.J. whether his mother had told him to testify in a

certain way, J.J. responded, “No.” An attorney’s questions themselves do not

constitute evidence. See Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App.

2007). J.J.’s response did not indicate that Appellant had committed the offense of

witness tampering.    See TEX. PENAL CODE ANN. § 36.05(a)(1) (Vernon Supp.

2014) (establishing as an offense to coerce witness into falsely testifying).

Furthermore, the jury was instructed that it could not consider the testimony

“unless you find and believe beyond a reasonable doubt that the defendant

committed these acts, if any, were committed.” “[I]n the absence of evidence to

the contrary, we will assume that the jury followed its written instructions.” Miles


7
      Section 3(g) of Article 37.07 of the Texas Code of Criminal Procedure requires
      notice to include a date for the alleged offense. TEX. CODE CRIM. PROC. ANN.
      art. 37.07, § 3(g) (Vernon Supp. 2014). But this requirement only applies to the
      punishment phase of trial. See id. art. 37.07, § 3(e) (“Nothing herein contained
      shall be construed as affecting the admissibility of extraneous offenses on the
      question of guilt or innocence.”). The complained-of questioning arose during the
      guilt-innocence phase of trial.

                                          9
v. State, 204 S.W.3d 822, 827–28 (Tex. Crim. App. 2006). Appellant has not

identified any evidence to rebut the presumption that the jury followed its

instructions about the extraneous offense. Accordingly, Appellant had failed to

show how she was harmed by J.J.’s denial that she had told him to testify in a

certain way.

      We overrule Appellant’s second issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Keyes, Higley, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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