                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         _________________________

              No. 06-11-00169-CR
        ______________________________


         ANTHONY WOODALL, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 5th Judicial District Court
               Bowie County, Texas
           Trial Court No. 10F0133-005




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
                                                   OPINION

           Anthony Woodall was sentenced to ten years’ incarceration after his conviction by a jury

of indecency with a child by contact.1 Woodall appeals his conviction, claiming the trial court

erred (1) in concluding that his pretrial statements were voluntary, (2) by denying Woodall the

opportunity to present evidence of Nicole’s subsequent abduction and sexual assault, and (3) by

admitting letters purportedly written by Woodall over trial counsel’s authentication objection.

Finding no error, we affirm the judgment of the trial court.

I.         Background

           Seven-year-old Nicole Woods (pseudonym) and four-year-old Kimberly Moore2

(pseudonym) spent the night with Woodall and his wife on Friday, October 2, 2009. 3 After

attending church services that evening, the four traveled back to the Woodall home, and after

eating supper and watching television, the children went to sleep on the couch. The following

morning, Woodall returned the children to his sister’s home.4 The following Monday, Nicole

told her mother that Woodall was “messing with” her when she spent the night at his home.5

Nicole’s mother contacted the police, at which time Woodall apologized for the incident, stating

he was sorry and asking that she not make “a big deal” about it.


1
    See TEX. PENAL CODE ANN. § 21.11 (West 2011).
2
 The present appeal involves Woodall’s conviction for indecency with Nicole. In a second appeal, also decided
today in cause number 06-11-00170-CR, we address Woodall’s conviction of two counts of indecency with a child
by contact, and aggravated sexual assault of a child, both involving only Kimberly.
3
    Nicole’s mother was dating Woodall’s nephew at the time of the sleepover.
4
    Woodall’s sister is Kimberly’s grandmother.
5
 More specifically, Nicole stated that Woodall pulled her pants down and felt her private parts. Nicole’s demeanor
is completely different now than it was prior to the incident in October.
                                                           2
        When Detective Brad Thacker of the Texarkana Police Department responded to the call

from Nicole’s mother, Woodall was present at the residence. Woodall voluntarily came in for an

interview at the police department. He was not under arrest. Thacker testified that during the

interview, Woodall stated that he was horse playing with the children and tickling them, and in

doing so, his hands went down Kimberly’s pants, and he could feel the contours of the child’s

vagina through her cotton panties. Woodall indicated that he became sexually aroused when this

happened. Woodall further indicated that with respect to Nicole, his hand slid across her vagina

through the outside of her clothing. When the children sat in his lap, Woodall became aroused.

        While Thacker attempted to record the initial interview with Woodall, the recorder was

not working properly and the interview was not recorded. Woodall was not in custody during

this interview and was free to leave.

        Because the initial interview was not recorded, Woodall was contacted by Detective

Gisela Looney for a second, voluntary interview on October 7.                  Even though the second

interview was noncustodial, Woodall was read his Miranda6 rights. Woodall indicated that he

could read and that he understood his rights. He then signed a waiver of those rights. During the

second interview, Woodall initially stated that he accidentally touched the girls. As the interview

progressed, however, Woodall admitted that he touched Kimberly under her pants and that he

was aroused when touching both girls. Woodall admitted to touching both girls’ vaginas and

stated that if he became aroused when the children were in his lap, he would set them down.




6
 Miranda v. Arizona, 384 U.S. 436 (1966). There was no claim in the trial court or on appeal that the second
interview was a custodial interrogation.
                                                     3
Woodall stated that he touched Kimberly’s vagina on three separate occasions.                       After the

interview, Woodall was told that a time would be scheduled for Woodall to turn himself in.

II.     The Suppression Hearing

        After his arrest and indictment, Woodall filed a motion to suppress both statements,

alleging that he suffered “from a mental disease or disorder that prohibits him from fully

understanding [his] rights and making an intelligent, knowing and voluntary waiver of [his]

rights.” At the hearing on the motion to suppress, the investigating officers testified that both

interviews were voluntary and Woodall was not in custody during either interview, and that

Woodall was read his rights, one by one, indicated that he understood them and initialed next to

each right indicating he understood each right, and voluntarily waived them. Looney testified

that she warned Woodall to ensure he understood his rights before she proceeded with the

interview. Thacker testified that the interview lasted between forty-five minutes to an hour. The

officers were not aware of any mental condition Woodall may have had.7

        To rebut this testimony, Woodall called attorney Butch Dunbar, who represented

Woodall in a Child Protective Services (CPS) case in which it was determined Woodall’s mental

or emotional illness or deficiency rendered him incapable of caring for his child. The trial court

sustained the State’s objection to the introduction of CPS documents outlining these findings,

concluding that the documents were not relevant.8



7
 The record does not indicate the trial court listened to the video recording of Woodall’s interview. The court
indicated that it would listen to the recording if necessary.
8
 The trial court later concluded, during the suppression hearing, that because Woodall was not in custody during
either interview, his Fifth Amendment rights never attached. Therefore, the issue of whether Woodall voluntarily
and knowingly waived his rights was not an issue.
                                                       4
            While the CPS documents were not admitted into evidence, Dunbar testified that he

attended an interview between Woodall and a detective during a prior sexual assault

investigation. Dunbar testified that even though Woodall denied the allegations prior to the

interview, he appeared ready to admit the allegations after repeatedly being told to “just tell the

truth” and “we can go home.” At that point, Dunbar stopped the interview and asked Woodall

why he appeared ready to admit the previously denied allegations. Woodall responded that if he

admitted the allegations, he could go home, thus raising the inference that he did not understand

that he would be arrested for making such admissions.

            Upon further questioning regarding Woodall’s ability to understand what he was doing,

the trial court determined Dunbar was not qualified to present evidence on the issue of

competency, at which time Woodall made a bill of exception as to Dunbar’s remaining

testimony.9

            Thereafter, the trial court referred to various sections of Article 38 of the Texas Code of

Criminal Procedure and determined Article 38.22 was not applicable to Woodall’s interrogation

because it was a noncustodial interrogation. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West

2005).10 The trial court then considered Article 38.21 on the issue of whether the statement was



           The trial court further indicated that out of an abundance of caution, the court had Woodall evaluated for
competency. The competency evaluation, conducted by Dr. Brian Smith, indicated that Woodall was competent to
stand trial. While Smith’s report is not in the record, Smith testified at trial that Woodall was competent to stand
trial, but also determined Woodall suffered from mild mental retardation.
9
 This testimony included Dunbar’s opinion that Woodall is susceptible to influence and eager to submit to authority.
Woodall is easy to persuade and has a limited vocabulary. In an interview, he can be persuaded or tricked into
saying almost anything. In Dunbar’s opinion, Woodall has a diminished mental capacity.
10
     Section 3 of Article 38.22 provides, in part,

                                                         5
freely and voluntarily made without compulsion or persuasion11 and concluded Dunbar’s

opinions were

            not from a qualified witness on that issue. And, number two, it directly
            contradicts the opinion of Dr. Smith, who evaluated him for competency. And,
            number three, no issue of competency has ever even been raised in this case under
            Article 46B of the Code of Criminal Procedure.

The trial court concluded,

            I don’t see anything that would indicate to me that the statements were not made
            freely and voluntarily and without compulsion or persuasion. So, you know, I
            find it to be a voluntary statement.

            The trial court then clarified its ruling:

                    THE COURT: You’re arguing that the statement was not voluntary based
            on his diminished capacity.

                     [Defense Counsel]: Correct.

                    THE COURT: Number one, you’ve not produced any witness that’s
            qualified to give any opinions on mental capacity, first and foremost, so you
            haven’t met your burden of proof to establish that. That’s the basis for it.


                     Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial
            interrogation shall be admissible against the accused in a criminal proceeding unless:

                     (1)       an electronic recording, which may include motion picture, video tape, or other
            visual recording, is made of the statement;

                    (2)       prior to the statement but during the recording the accused is given the warning
            in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily
            waives any rights set out in the warning . . . .

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3.
11
     Article 38.21 provides,

            A statement of an accused may be used in evidence against him if it appears that the same was
            freely and voluntarily made without compulsion or persuasion, under the rules hereafter
            prescribed.

TEX. CODE CRIM. PROC. ANN. art. 38.21 (West 2005).
                                                            6
                   But number two is, the doctor made a finding of competency, which
           includes the mental capacity issue. And so I’m saying, not only have you not met
           your burden of proof; in addition to that, there’s also evidence which establishes
           positively that he is competent and that he does have the capacity.
                   I’m not saying that you’ve got to show he’s incompetent to show that the
           statement is involuntary.

           After jury selection, and on further review of this issue, the trial court reiterated the

denial of the motion to suppress Woodall’s statements for the reasons previously stated. The

court indicated that in accord with Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008),

a defendant is entitled to maintain his statement is involuntary even when there is no

constitutional violation under Section 6 of Article 38.22 of the Texas Code of Criminal

Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6. The trial court therefore concluded

that even though Woodall’s statements were not determined to be involuntary, the issue of

voluntariness “becomes a fact issue for the jury to deal with at the appropriate time.”

           At the conclusion of the trial, the trial court filed a written order denying Woodall’s

motion to suppress evidence, together with findings of fact and conclusions of law. The order,

while denying the motion to suppress, recognizes that the motion to suppress implicates issues of

voluntariness under Article 38.22 of the Texas Code of Criminal Procedure. Id. Accordingly,

the trial court entered findings of fact and conclusions of law, as required by the referenced

statute.

           The recorded confession was admitted into evidence at trial and played for the jury.

Woodall then produced expert testimony of Dr. Thomas Tiefenwerth, intended to show that

Woodall’s confession was involuntary, because he displays the intellectual ability consistent with

that of an individual with mild mental retardation. Tiefenwerth testified that Woodall’s level of

                                                   7
intellectual ability would subject him to manipulation in an interview situation. In any type of

circumstance that is not routine, Woodall would have difficulty understanding and weighing

potential consequences. Woodall’s statements, according to Tiefenwerth, were made in an

attempt to appease police officers, based on his mild mental retardation, his respect for authority,

and his desire to please those in authority. Later, the trial court instructed the jury not to consider

Woodall’s statements for any purpose unless the jury believed, beyond a reasonable doubt, that

the statements were voluntarily made. The jury returned a verdict of guilty.

       The Trial Court Did Not Err in Finding Woodall’s Statements to be Voluntary

       In his first point of error, Woodall contends the trial court erred by refusing to suppress

his noncustodial statements given to police officers during the course of their investigation.

       We apply a bifurcated standard of review to a trial court’s denial of a motion to suppress,

giving great deference to the trial court’s determination of historical facts and reviewing de novo

the trial court’s application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.

2002). We give almost total deference to the trial court’s determination of historical facts,

especially when the trial court’s fact-findings are based on an evaluation of the credibility and

demeanor of a witness. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). Mixed

questions of law and fact that do not turn on the credibility and demeanor of a witness are

reviewed de novo. Id.; Woodruff v. State, 330 S.W.3d 709, 731 (Tex. App.—Texarkana, pet.

ref’d), cert. denied, 132 S.Ct. 502 (2011).

       On appeal, this Court must give great deference “to the trial court’s decision to admit or

exclude [a defendant’s pretrial statements], which will be overturned on appeal only where a


                                                  8
flagrant abuse of discretion is shown.” Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App.

2007); Woodruff, 330 S.W.3d at 732.

        Woodall contends the trial court applied the wrong standard in its determination of

whether his statements were voluntary. At the suppression hearing, the trial court determined

that because Woodall’s statements were made in a noncustodial setting, Article 38.22 “doesn’t

apply at all.”

        Article 38.22, sometimes called the Texas Confession Statute, “sets out rules governing

the admissibility of an accused’s written and oral statements that are the product of custodial

interrogation.” Oursbourn, 259 S.W.3d at 171. Woodall claims, however, that the voluntariness

of his noncustodial statements should have been determined under Section 6 of Article 38.22,

which provides:

        In all cases where a question is raised as to the voluntariness of a statement of an
        accused, the court must make an independent finding in the absence of the jury as
        to whether the statement was made under voluntary conditions. If the statement
        has been found to have been voluntarily made and held admissible as a matter of
        law and fact by the court in a hearing in the absence of the jury, the court must
        enter an order stating its conclusion as to whether or not the statement was
        voluntarily made, along with the specific finding of facts upon which the
        conclusion was based, which order shall be filed among the papers of the cause.
        Such order shall not be exhibited to the jury nor the finding thereof made known
        to the jury in any manner. Upon the finding by the judge as a matter of law and
        fact that the statement was voluntarily made, evidence pertaining to such matter
        may be submitted to the jury and it shall be instructed that unless the jury believes
        beyond a reasonable doubt that the statement was voluntarily made, the jury shall
        not consider such statement for any purpose nor any evidence obtained as a result
        thereof. In any case where a motion to suppress the statement has been filed and
        evidence has been submitted to the court on this issue, the court within its
        discretion may reconsider such evidence in his finding that the statement was
        voluntarily made and the same evidence submitted to the court at the hearing on
        the motion to suppress shall be made a part of the record the same as if it were
        being presented at the time of trial. However, the state or the defendant shall be

                                                 9
        entitled to present any new evidence on the issue of the voluntariness of the
        statement prior to the court’s final ruling and order stating its findings.

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6.

        Even though the trial court ultimately concluded that its ruling “is the same for the same

reasons with respect to the motion to suppress,” the trial court recognized that Oursbourn

requires that the voluntariness issue be submitted to the jury. Oursbourn also holds, however,

that “Section 6 of Article 38.22 applies to both an accused’s custodial and non-custodial

statements because it provides that only ‘voluntary’ statements may be admitted.” Oursbourn,

259 S.W.3d at 171.12 While Article 38.22 generally protects suspects from police overreaching,

“Section 6 of that article may also be construed as protecting people from themselves because

the focus is upon whether the defendant voluntarily made the statement. Period. Does it

appear—as Article 38.21 requires—that the statement was freely and voluntarily made without

compulsion or persuasion?”13 Id. at 172. This was the precise issue the trial court was called on

to decide.

        Woodall contends the trial court failed to make its voluntariness determination by

analyzing the totality of the circumstances and, therefore, its ruling was incorrect. See Delao,

235 S.W.3d at 239. We disagree. True, the determination of whether a confession is voluntary

must be made by examining the totality of the circumstances. Id. at 241 (holding totality of
12
  Sections 2 and 3 of Article 38.22 apply to statements made while the accused is in custody and provide that such
statements are admissible only if, prior to making the statement, the accused received the warnings provided in
Article 15.17 or Article 38.22, Section 2(a) or Section 3(a) (incorporating the requirements of Miranda). These
provisions do not apply here, as the trial court’s determination that Woodall was not in custody when he provided
the statements has never been contested.
13
  Article 38.21 provides: “A statement of an accused may be used in evidence against him if it appears that the
same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed.”
TEX. CODE CRIM. PROC. ANN. art. 38.21.

                                                       10
circumstances standard for assessing voluntariness of confession appropriate standard to apply

when confession made by someone suffering from mental retardation or mental illness).14 Here,

it is apparent, as explained below, that the trial court analyzed the issue of voluntariness under

the totality of the circumstances and considered the issue of Woodall’s mentality as one factor in

that analysis.

         Woodall apparently contends (although it is not crystal clear in his brief) that the trial

court failed to make its voluntariness determination by examining the totality of the

circumstances because it rejected a portion of Dunbar’s testimony. Dunbar was the sole witness

called by Woodall at the hearing on the motion to suppress. The trial court determined that

Dunbar was not qualified to testify regarding the issue of competency. Woodall does not

complain of this ruling on appeal.

         While Woodall is critical of the trial court’s exclusion of the CPS documents he sought to

introduce through Dunbar’s testimony, he does not directly complain of the exclusion of those



14
  In that case, Delao was asked to accompany two police officers to the station for questioning after he was
identified as a suspect in a robbery. Delao was interviewed for approximately an hour. When Delao indicated that
he was on medication, had difficulty reading, that he was a mental health/mental retardation (MH/MR) patient, and
that he desired the attendance of his MH/MR counselor, the remainder of the interview was conducted in the
presence of the counselor. Delao, 235 S.W.3d at 236–37. Delao commented at various times throughout the
interview that he wished to terminate the questioning. Near the end of the interview, however, Delao confessed to
the crime. Id. at 237.
          Delao’s motion to suppress the confession on the basis that it was involuntary was denied. On appeal, the
court analyzed the totality of the circumstances to determine the voluntariness of the confession, including Delao’s
diminished mental capacity, the coerciveness of the interrogation, and Delao’s right to terminate the interview at
will. After considering these factors, the court of appeals determined that despite Delao’s diminished mental
capacity, the totality of the circumstances failed to demonstrate that his confession was involuntary. Id. at 238. In
affirming this decision, the high court recognized that the totality of the circumstances standard is sufficiently all-
encompassing to take into account such factors as are common to those suffering from a mental deficiency, such as a
lower level of education, experience, self-sufficiency, and reasoning abilities than the average person. However, the
mentality of the accused is simply one factor to consider when evaluating the voluntariness of a confession. Id. at
239.

                                                         11
documents on appeal.15              Moreover, Woodall does not contend on appeal that Dunbar was

qualified to provide testimony regarding Woodall’s mental state.

            Dunbar’s admitted testimony revealed that he witnessed Woodall almost succumb to the

pressure of authority when questioned in a similar setting on a previous date. This incident,

claims Woodall, is strikingly similar to what is revealed on the video recording of his interview

in this case.

            Woodall further complains that the trial court failed to watch the recorded statement and

compare it to Dunbar’s testimony. He maintains the statement speaks for itself. Even though

this was not a prolonged interrogation, Woodall claims the totality of the circumstances indicates

that he made involuntary statements that ultimately resulted in his conviction for crimes in which

the remaining evidence was questionable. The video showed that Woodall attempted to inform

the officers that the touching was an accident, but the officers indicated that “we are not going to

use the word accident.” Woodall asked his interrogator if he was to “admit to something he did

not do.” Thereafter, however, Woodall made inculpatory statements.16

            While it is apparent that some confusion existed at the suppression hearing regarding

which section should apply to a noncustodial interrogation, the trial court correctly determined

that the issue was whether the statements were freely and voluntarily made without compulsion

15
  Woodall apparently contends that because the CPS documents were excluded on the basis that the standard for
competency and the standard for making a knowing and voluntary waiver of rights are the same, and because Smith
previously determined Woodall was competent, the documents were not admissible and Woodall made a knowing
and voluntary waiver of his rights. This argument is somewhat specious because (1) Woodall does not argue on
appeal that the documents were improperly excluded, and (2) the trial court excluded the documents because it
found them to be irrelevant. While the trial court did state that the ability to knowingly and intelligently exercise a
waiver of rights is subsumed in a finding of competence, it later determined that Woodall’s interrogation was
noncustodial, and therefore waiver of rights was not an issue.
16
     The trial court watched the video-recorded interview with Woodall when it was played for the jury at trial.
                                                            12
or persuasion. See TEX. CODE CRIM. PROC. ANN. art. 38.21. The trial court heard testimony that

Woodall voluntarily agreed to both interviews. Neither of the interviews were longer than an

hour. Neither officer was aware that Woodall suffered from any type of mental condition. The

trial court also heard testimony from Dunbar, as previously outlined.

            The trial court’s findings of fact17 indicate that the trial court did, in fact, evaluate the

totality of the circumstances surrounding Woodall’s statements. These findings include the fact

that Woodall voluntarily agreed to accompany Thacker to the Bi-State Justice Center to talk

about the allegations against him; that Thacker did not handcuff Woodall or place him in the

back seat of his vehicle behind the cage; that Woodall was not in custody when he gave his

initial statement; that after giving his statement, Woodall was driven back to his residence by

Thacker; that when Looney was assigned to the case the following day, she asked Woodall to

come to the police station for another interview because the video system was not working

during the first interview; that Woodall agreed to come to the police station for a second

interview; that Woodall, along with his wife, drove to the police station to give the second

interview; that Woodall was not arrested or placed in custody before he gave his second

statement; that Woodall was not in custody when he gave his second statement; that upon

completion of the second statement, Woodall left with his wife and returned home; that Woodall

suffers from mild mental retardation; that prior to the hearing on Woodall’s motion to suppress

evidence, Dr. Smith, a board certified neuropsychologist, evaluated Woodall and found him


17
     The trial court’s conclusions of law state:

            1. Defendant’s statement to Det. Thacker was voluntary.

            2. Defendant’s statement to Det. Looney was voluntary.
                                                          13
competent to stand trial; that Woodall is competent to stand trial; that Woodall did not present

any competent evidence to establish that he lacked the capacity to voluntarily give a statement to

the police; and that Woodall’s statements to Thacker and Looney were voluntarily made.

        Even though the trial court initially found that Article 38.22 was not applicable to the

issue of whether Woodall’s statements were voluntary, on further review, it determined that the

important procedural protections of that article were invoked in this case: (1) the entry of an

order stating its conclusion as to whether or not the statements were voluntarily made, along with

the specific findings of fact upon which the conclusion was based, and (2) the submission of the

issue of voluntariness to the jury, together with an instruction that unless the jury believes

beyond a reasonable doubt that the statements were voluntarily made, the jury was neither to

consider such statements for any purpose nor any evidence obtained as a result thereof. See TEX.

CODE CRIM. PROC. ANN. art. 38.22, § 6. The application of these protections, together with the

trial court’s consideration of the totality of the circumstances in determining whether the

statements were voluntary, indicate compliance with this section of the Code.

        Applying the appropriately deferential standard of review, we conclude that the record

supports the trial court’s finding that Woodall’s statements were made voluntarily. We overrule

this point of error.

III.    Evidentiary Issues at Trial

        In his final two points of error, Woodall complains of trial court error in its refusal to

admit evidence of Nicole’s subsequent abduction and sexual assault and in the admission of

letters purportedly written by Woodall over trial counsel’s authentication objection.


                                                14
         No Error in Refusal to Admit Evidence of Abduction and Sexual Assault

         We review the trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. See Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996);

Montgomery v. State, 810 S.W.2d 372, 379–80 (Tex. Crim. App. 1990). We will not reverse a

trial court whose ruling was within the “zone of reasonable disagreement.” Green, 934 S.W.2d

at 102; Montgomery, 810 S.W.2d at 391 (op. on reh’g). Moreover, the mere fact that a trial court

may decide a matter within its discretionary authority differently than an appellate court does not

demonstrate an abuse of discretion. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App.

2005).

         Nicole’s mother testified at trial that when Nicole returned from Woodall’s home, she

was emotionally distraught and sad. She would not eat and was not acting as she normally did.

This is not how Nicole acted prior to spending the night at the Woodall home. Since that time,

Nicole’s mother testified that Nicole wakes up with nightmares at least three times a week and

that she is frightened of men. Her entire demeanor is completely different than it was before this

incident. Nicole has changed schools three times since this incident. When Nicole’s mother was

asked if the nightmares are all attributed to the incident involving Woodall, she responded,

“[S]he wasn’t having nightmares before any of this happened.” Nicole’s mother testified that

she attributed the nightmares to the incident involving Woodall.

         When asked if Nicole suffered any other traumas or “any other incidents,” the State

interposed relevance and Rule 403 objections. Thereafter, in a hearing outside the presence of

the jury, Nicole’s mother testified that on December 19, 2009, Nicole was kidnapped and taken


                                                15
to a Burger King where a man masturbated and ejaculated on her, then left her in the parking lot.

Nicole’s mother further testified that the nightmares began in October 2009.

           The trial court ruled that the evidence of the subsequent sexual assault was inadmissible

under Rules 403 and 412 of the Texas Rules of Evidence. TEX. R. EVID. 403, 412. Woodall

initially contends that Rule 412 does not apply in this scenario. We agree.

           Rule 412, commonly known as the Texas rape shield law, was designed “to restrict the

introduction of evidence regarding the complainant’s prior consensual sexual behavior to

situations in which the evidence is both relevant to a defendant’s defense and not unduly

prejudicial or inflammatory.” Draheim v. State, 916 S.W.2d 593, 599 (Tex. App.—San Antonio

1996, pet. ref’d). In that case, the defendant sought to introduce past sexual behavior of third

parties to which the complainant could not have consented; Rule 412, therefore, did not apply.

Id. Here, Woodall sought to introduce evidence of the subsequent sexual behavior of a third

party to which Nicole could not have consented. Accordingly, Rule 412 does not apply. TEX. R.

EVID. 412.

           Next, Woodall contends the trial court erred in excluding the evidence of the subsequent

kidnapping and sexual assault under Rule 403 of the Texas Rules of Evidence. TEX. R. EVID.

403.18 After conducting a Rule 403 analysis, the trial court ruled that the subsequent incident

was inadmissible because introduction of such evidence would tend to confuse or distract the

18
     Rule 403 provides:

           Although relevant, evidence may be excluded if its probative value is substantially outweighed by
           the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
           of undue delay, or needless presentation of cumulative evidence.

TEX. R. EVID. 403.

                                                            16
jury from the main issues, would have a tendency to be given undue weight by the jury, and

could possibly suggest decision on an improper basis.                  Further, there was evidence that

nightmares occurred after the Woodall incident and before the December kidnapping.

        Woodall sought to introduce evidence of Nicole’s kidnapping and subsequent sexual

assault to show another potential cause for the nightmares other than the offense for which he

stood trial. The trial court could have reasonably concluded that the inherent probative force of

this evidence was considerable, since Woodall was accused of one incident of sexual indecency

with Nicole. Moreover, Woodall correctly contends that Nicole’s mother’s testimony left the

jury with the impression that all of Nicole’s problems stemmed from the incident involving

Woodall. Therefore, this evidence was relevant and probative to Nicole’s mother’s claim that

Woodall was the sole cause of Nicole’s trauma.

        Conversely, the trial court reasonably concluded that the kidnapping and sexual assault

could tend to confuse or distract the jury from the main issues in the case. In addition, it is

reasonable to conclude that the December incident could have a tendency to be given undue

weight by the jury. After balancing the various Rule 403 factors, the trial court’s decision to

exclude the December incident was within the “zone of reasonable disagreement.” Therefore,

we find no error and overrule this appellate point.19

        No Error in Admission of Woodall’s Letters

        In his final appellate point, Woodall contends that the trial court erred by admitting letters

Woodall purportedly wrote to the Bowie County Assistant District Attorney and to the Bowie

19
  We also acknowledge evidence that Nicole was distraught and sad after the Woodall incident, would not eat, did
not exhibit her usual demeanor, and experienced nightmares. These problems existed prior to the December
incident.
                                                      17
County District Attorney.     Specifically, Woodall complains the letters were not properly

authenticated under Rule 901 of the Texas Rules of Evidence. TEX. R. EVID. 901(a). We find

that the letters were properly admitted into evidence.

       The first letter asks when Woodall is expected to return to court; the second letter

requests a copy of Woodall’s motion for discovery and a copy of his indictment.

       The State sought to introduce the letters for the purpose of illustrating Woodall’s mental

capacity. The letters were initially discussed outside the presence of the jury, during a break in

Dr. Smith’s testimony. The State indicated that it planned to ask Smith about the letters to

illustrate Woodall’s mental capacity. The following discussion ensued:

               [Defense Counsel]: May I look at them?

               [The State]: Sure.

               THE COURT: Yeah. Take a look at them and see if you’ve got any
       objection.

              [The State]: It’s not -- it’s merely to show that he writes in complete
       sentences.

               [Defense Counsel]: I’m kind of concerned this one makes it sound like
       he’s in custody. It doesn’t really say that. I’ll let the judge have his discretion on
       that one.

               THE COURT: Well, I think that -- well, the correctional center part --
       excise that, Bowie County Correctional Center part.

               [Defense Counsel]: Which is probably on the envelopes as well . . . .

                      ....

               THE COURT: Yeah, detach the envelopes, excise that part.

             [Defense Counsel]: And if a copy goes back to the jury, can we excise it
       and make a copy so they can’t read through the --?
                                                18
                 THE COURT: That’s right.

                 [The State]: Yeah. Can we do, like show these to him now?

                 [Defense Counsel]: And then substitute them later.

                 THE COURT: Right.

        Later, when the letters were shown to Smith, who was asked to read them to the jury,

defense counsel objected on the basis that the letters were not authenticated. The trial court

overruled the objection.

        Initially, the State contends Woodall waived his authentication objection by failing to

assert it when the letters were discussed with the trial court.                   Under Rule 901(a), “the

requirement of authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter in question is what its

proponent claims.” TEX. R. EVID. 901(a). For instance, testimony of a witness with knowledge

that a matter is what it is claimed to be can be sufficient to authenticate evidence. TEX. R. EVID.

901(b)(1). We find no waiver of Woodall’s authentication objection. Presumably, the State

could have elicited appropriate authentication testimony from Smith. When it became clear the

State did not intend to authenticate the letters through Smith’s testimony, defense counsel

objected. To have raised an authentication objection during a conference outside the presence of

the jury would have been premature.20


20
  The State further claims Woodall waived his authentication objection in failing to object to Looney’s subsequent
testimony to the effect that she witnessed Woodall sign the warning of rights form and that the writing on the two
letters appeared to be from the same person who signed the warning form. One method of authentication consists of
a nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of
litigation. TEX. R. EVID. 901(b)(2). Because this testimony was proper to authenticate the letters in question, no
objection was necessary. We find no waiver of this objection.
                                                       19
         Woodall claims, however, that the letters were not properly authenticated when

introduced.     “Preliminary questions concerning . . . the admissibility of evidence shall be

determined by the court [and] [w]hen the relevancy of evidence depends upon the fulfillment of

a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence

sufficient to support a finding of the fulfillment of the condition.” Druery v. State, 225 S.W.3d

491, 502 (Tex. Crim. App. 2007) (citing TEX. R. EVID. 104(a), (b)).21

         Under the doctrine of conditional relevance, a trial court may admit evidence lacking

authentication on the condition that the offering party authenticate the evidence at a later time.

See TEX. R. EVID. 104(b); Heidelberg v. State, 36 S.W.3d 668, 673 (Tex. App.—Houston [14th

Dist.] 2001, no pet.).        If sufficient authentication does not take place by the close of the

proponent’s evidence, the opposing party must renew the original objection by a motion to strike

the conditionally admitted evidence. Heidelberg, 36 S.W.3d at 673.

         Prior to the close of the State’s evidence, the State recalled Looney as a witness to

authenticate the subject letters. The State showed Looney the warning form she discussed with

Woodall during his interview. Looney testified that she watched Woodall initial and sign the

warning form.        Thereafter, Looney testified that the two letters purportedly from Woodall

appeared to be the same handwriting as that on the warning form. Defense counsel did not cross-

examine Looney with respect to the authentication issue. Given this testimony, a reasonable

juror could conclude the letters were what the State purported them to be—letters written by




21
  Here, the trial court overruled the authentication objection, without specifically stating that the admission of the
letters was subject to authentication. The letters were subsequently authenticated, however, by Looney. Further, the
State represented to the trial court that “these are letters that [Woodall] sent to our office.”
                                                         20
Woodall. The letters were properly authenticated, and the trial court’s decision to admit them

was not an abuse of discretion. We overrule this point of error.

IV.    Conclusion

       We affirm the judgment of the trial court.




                                             Bailey C. Moseley
                                             Justice

Date Submitted:       July 18, 2012
Date Decided:         July 31, 2012

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