

NO. 07-10-0284-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL C
 
 APRIL 13, 2011

 
 

 
 
DEXTER WAYNE GREENE, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 
 

 
 FROM CRIMINAL DISTRICT COURT NO.
THREE OF TARRANT COUNTY;
 
NO. 1160937D; HONORABLE ELIZABETH BERRY, JUDGE

 
 

 
Before QUINN, C.J., and  HANCOCK and
PIRTLE, JJ.
MEMORANDUM OPINION
            Appellant, Dexter
Wayne Greene, pled guilty in open court to two counts of sexual assault of a
child[1] and was sentenced to two consecutive eighteen year
sentences.[2]  In a single point of error, Appellant asserts
the trial court violated his right to due process guaranteed by the Fourteenth Amendment of the United States
Constitution by excluding evidence of his written and recorded statements
to the police during his punishment trial. 
We affirm.   
Background
            On
July 14, 2009, a Tarrant County Grand Jury returned an indictment against
Appellant alleging that he intentionally and knowingly caused the sexual organ
of W. H., a child younger than seventeen years of age who was not Appellant's spouse,
to contact Appellant's mouth on April 1 and May 1 of 2008, Counts One and Two
respectively.  Appellant subsequently
pled guilty to both counts and a punishment trial was held before a jury.
            Prior
to the punishment trial, the State successfully moved to prohibit any mention
of Appellant's oral or written statements to the police on the grounds that the
statements were self-serving and inadmissible hearsay.  At the punishment trial, Sergeant Detective
Tom Milner testified on direct examination, in pertinent part, as follows:
STATE:          [W.
H.] didn't ask any adults for help, did he?
MILNER:        No.
STATE:          [W.
H.] tried to handle it himself?
MILNER:        Yes.
STATE:          In
fact, [W. H.] tried to push him off, didn't he?
MILNER:        [W.
H.] did say that he had a fight with him, yes.
STATE:          But,
I mean, independent of pushing him off, the fight was later,                             wasn't
it?
MILNER:        Yes.
STATE:          [W.
H.] tried to push him off one time. 
Another time when the defendant tried to get [W. H.] to go to sleep,
that's when the fight began?
MILNER:        Yes.
STATE:          What
did [W. H.] do?
MILNER:        [W.
H.] stated he hospitalized [Appellant], cracking his ribs.
STATE:          [W.
H.] hurt him?
MILNER:        Yes.
STATE:          [W.
H.] wanted it to stop, and [Appellant] wouldn't
take no for an answer?
MILNER:        No.
            On cross examination, Detective Milner testified, in
pertinent part, as follows:
DEFENSE:    Did you just state
that [W. H.] offered that he---I'm sorry. 
                                What did you just say about the
fight?
MILNER:        Said
that he hospitalized [Appellant].
DEFENSE:    All
right.  And [W. H.] gave you a reason
why?
MILNER:        He
said that [Appellant] was trying to get him to go to sleep, so Appellant could
perform sexual acts on him.
DEFENSE:    And
do you have any reason to believe that there's anything that explains or
contradicts that?
MILNER:        No.
            Appellant then sought to introduce his out-of-court oral
and written statements to Detective Milner to explain or contradict Milner's
testimony regarding W. H.'s reasons for breaking Appellant's ribs and
hospitalizing him.[3]  Appellant asserted that the State "opened
the door" in its direct examination of Milner and Appellant's statements
were necessary mitigation evidence regarding whether the sexual acts were
forced or consensual.  The State asserted
that no evidence of Appellant's statements was offered in Detective Milner's
direct examination and it was defense counsel that "opened the door"
to whether other evidence existed that explained or contradicted Detective
Milner's account of W. H.'s motivation for breaking Appellant's ribs.  The trial court denied Appellant's
request.  
            At
the trial's conclusion, the jury found Appellant guilty of Counts One and Two in
the indictment and sentenced Appellant to two consecutive sentences of eighteen
years confinement.   This appeal followed.
Discussion
            Appellant asserts that his own out-of-court
statements were admissible as mitigation evidence because the statements
directly contradicted Detective Milner's testimony that W. H. had told him that
he was fending off Appellant's sexual advances when he cracked Appellant's
ribs.  Further, Appellant argues that,
due to Detective Milner's blanket declaration that he was unaware of any
evidence that contradicted or explained W. H.'s version of why he fractured
Appellant's ribs, the jury was given the false impression that Appellant was
physically aggressive towards W. H.  Appellant
asserts this created a false impression that led the jury to assess
near-maximum sentences.  The State counters
contending the trial court correctly excluded Appellant's statements because
they were inadmissible hearsay and unnecessary to explain or contradict any
evidence first offered by the State.  
Standard of Review
            We
review a trial court's decision to admit evidence under an abuse of discretion
standard.  Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007) (citing Apolinar v. State, 155 S.W.3d 184, 186
(Tex.Crim.App. 2005)).  A trial court
abuses its discretion only when the decision lies "outside the zone of
reasonable disagreement."  Id. 
 
Self-serving Statements
            The general rule in Texas is that self-serving statements
are generally inadmissible as proof of the facts they assert.  Allridge
v. State, 762 S.W.2d 146, 152 (Tex.Crim.App. 1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238
(1989).  Testimony by
third persons as to an accused's self-serving declarations are hearsay and thus
inadmissible.  Moore v. State, 849 S.W.2d 350, 351 n.1
(Tex.Crim.App. 1993) (citing DeRusse v.
State, 579 S.W.2d 224, 233 (Tex.Crim.App. 1979)).  
            There are exceptions, however, to this general rule.  Allridge,
762 S.W.2d at 152. A self-serving statement may be
admissible if the statement is:  (1) part
of the res gestae of the offense or
arrest, (2) part of a statement or conversation already offered by the State,
or (3) necessary to explain or contradict evidence first offered by the State. Id. (citing Singletary v. State, 509 S.W.2d 572, 576 (Tex.Crim.App. 1974)).  The theory behind the third exception is to
prevent the fact finder from being misled or perceiving a false, incorrect
impression when hearing only a part of an act, declaration, conversation, or
especially, a writing. 
Reado v. State,
690 S.W.2d 15, 17 (Tex.App.--Beaumont 1984, pet. ref'd).[4]
            Here, Appellant makes no contention that his statements
were part of the res gestae of the
offense, and the record does not show that the State made any effort to proffer
any portion of Appellant's statements in its case-in-chief or at any other time.  Therefore, Appellant is unable to prove
either the first or second exceptions.  
            In addition, there is no showing that Appellant's
out-of-court statements to Detective Milner were necessary to correct a false
or incorrect impression created by Detective Milner's testimony regarding W. H.'s
self-described motivation for injuring Appellant.  Here, Appellant sought to use his out-of-court
statements to contradict or assert an alternative version of the events
described by W. H. through Detective Milner's testimony.  As such, Appellant's statements were not
necessary to clear up any misconceptions for the jury regarding how or why the
events described by W. H., through Detective Milner's testimony, occurred.  Detective Milner's account of W. H.'s
statement regarding Appellant's rib injury was complete.  That the State did not
present exculpatory or explanatory testimony favoring Appellant in its
case-in-chief does not equate to misleading the jury or leaving the jury with
only a partial or incomplete version of the facts.  In fact, the State did proffer W. H. as a
witness during its case-in-chief and during cross-examination,
W. H. indicated that he injured Appellant's ribs while they were playing on
Appellant's living room floor    
            Further, it has been held that, when the accused does not
take the stand, self-serving statements are not admissible when they are merely
contradictory to some act or declaration first proffered by the
prosecution.  Starks v. State, 776 S.W.2d 808, 811
(Tex.App.--Fort Worth 1989, pet. ref'd) (citing Reado, 690 S.W.2d at 17). 
Here, Appellant did not testify.  Therefore,
if the trial court had admitted Appellant's statements, there would have been
no opportunity to cross-examine Appellant on his statements to Detective
Milner.  Under the circumstances, to admit
Appellant's self-serving statements in the State's case-in-chief would permit
any defendant to place his version of the facts before the jury through hearsay
statements without being subject to cross-examination.  See
Reado, 690 S.W.2d at 17 ("To adopt Appellant's position would mean
that all self-serving statements by an accused would be admissible.")  Accordingly, we find the trial court did not
abuse its discretion in excluding Appellant's self-serving statements.[5]

            Renteria v. State,
206 S.W.3d 689 (Tex.Crim.App. 2006), is of no assistance to Appellant.  In Renteria,
the Criminal Court of Appeals determined it was error not to admit a
defendant's self-serving statement to police wherein he expressed remorse after
the State presented expert testimony at trial, based on hypotheticals supported
by the record, that a person like the defendant would be a future danger to
society in part because the hypothetical person was unremorseful.  Id. at 694-98.  Unlike
Renteria wherein the State depicted the
defendant as unremorseful through hypotheticals, here, Detective Milner's
testimony merely described W. H.'s account of his motivation for injuring Appellant while saying nothing of
Appellant's state of mind or motivation at the time he was injured.  As such, this case is more like Starks, supra, wherein the trial court properly excluded a defendant's
self-serving statement that his gun went off accidently as opposed to
intentionally; Starks, 776 S.W.2d at
811, or Walck v. State, 943 S.W.2d
544 (Tex.App.--Eastland 1997, pet. ref'd), wherein the trial court properly
excluded a defendant's self-serving statements to his psychologist intended to
establish his state of mind at the time of the offense.  Id. at 545.  In both cases, as here, the excluded
statement does not contradict an act or declaration, but instead merely seeks
to contradict the State's evidence of intent. 
Appellant's single point of error is overruled.
Conclusion
            The trial
court’s judgment is affirmed.   
            
                                                                        
                                                                                    Patrick A. Pirtle
                                                                                          Justice  
Do not publish.




[1]See Tex. Penal
Code Ann. § 22.011(a)(2) (West Supp. 2010).  


[2]In a separate cause number, Appellant
was also convicted of a third offense of sexual assault of a child and assessed
a five year sentence to be served concurrently with the first of his two
eighteen year sentences.    


[3]In his oral and written statements to
Detective Milner, Appellant described W. H. as an aggressor who broke
Appellant's ribs when he refused to perform sexual acts on W. H.


[4]This is the so-called rule of
optional completeness, a common-law doctrine that is a recognized exception to
the hearsay rule.  See Walters, 247 S.W.3d at 218.  This rule is one of admissibility and permits
the introduction of otherwise inadmissible evidence when the evidence is
necessary to fully and fairly explain a matter "opened up" by the
adverse party.  Id.  (citing
Parr v. State, 557 S.W.2d 99, 102
(Tex.Crim.App. 1977)).  That said,
however, simply "opening up the door," does not automatically require
admission of otherwise inadmissible evidence under the rule of optional
completeness.  Sauceda v. State, 129 S.W.3d 116, 122
(Tex.Crim.App. 2004); Kipp v. State,
876 S.W.2d 330, 337 (Tex.Crim.App. 1994).  Rule 107 of the Texas Rules of Evidence
indicates that, in order to be admitted, the omitted portion of the statement
must be “on the same subject” and must be “necessary to make it fully
understood."  Tex.
R. Evid. 107.


[5]Even if Appellant's cross-examination
of Detective Milner may have somehow misled the jury or created a false
impression in their minds as Appellant suggests, this does not make his
self-serving out-of-court statements admissible.  Renteria v. State, 206 S.W.3d 689, 705 (Tex.Crim.App. 2006).   


