Opinion issued October 3, 2013




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                             ————————————
                                NO. 01-12-00919-CR
                             ———————————
                       CALVIN RAY RANDLE, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 209th District Court
                            Harris County, Texas
                        Trial Court Case No. 1153730


                           MEMORANDUM OPINION

      A jury convicted Calvin Ray Randle of capital murder.1 The trial court
assessed punishment at life in prison. In one issue on appeal, Randle contends that


1
      See TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2011).
the trial court erred in refusing his request to offer impeachment evidence during
cross-examination of a police detective regarding the criminal history of one of the
State’s witnesses. We affirm the trial court’s judgment.

                                     Background

      Randle’s murder conviction arises out of his role as a getaway driver in an

armed robbery gone awry. Wearing ski masks, Randle’s nephew, Lisbon Wilkins,

and another unidentified man entered a Fiesta grocery store in Houston, Texas.

Wilkins carried a pistol; the other man wielded a shotgun. While the man with the

shotgun guarded the front door, Wilkins ordered everyone in the Fiesta to get down

on the floor, grabbed a cashier, and held the pistol to the cashier’s head as he

walked him toward Fiesta’s courtesy booth, which contained more than $25,000 in

cash. Wilkins demanded admittance into the courtesy booth, but his efforts were

unsuccessful. He then fired his pistol at the ceiling.

      An armed security guard appeared and commanded Wilkins to release the

hostage. Wilkins released the cashier and then shot at the security guard. The

security guard fired back, striking Wilkins in his leg and chest. At the same time,

the shotgun-wielding man fired at the security guard, mortally wounding a Fiesta

grocery shopper.

      The two robbers fled the scene in a stolen Dodge Caravan parked outside of

the Fiesta; Wilkins drove the car two blocks before crashing into a ditch. Two

witnesses heard the crash, and saw, less than one minute, later a Lincoln Towncar
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pull up next to it. The Towncar appeared “similar” to photographs of the Lincoln

Towncar owned by Randle. One of these witnesses also testified that the injured

Wilkins was helped into the backseat of the Lincoln Towncar, the man with the

shotgun got into the car with him, and the driver of the Lincoln Towncar drove

them away.

      Police officers later discovered Wilkins’s body in the middle of a street in

north Houston. They contacted his family, who gave them information about

Randle. The police went to Randle’s house to question him about his possible

connection to the Fiesta robbery. Randle told the officers he had eaten dinner with

Wilkins earlier that evening and then drove home, where he remained all night.

Police observed blood on the backseat of Randle’s Lincoln Towncar. Randle

consented to a police search of his car; the blood in the backseat was later matched

to Wilkins’s. DNA testing also demonstrated that Wilkins was in both the van

initially used to get away and in Randle’s Lincoln Towncar.

      Joseph Moses, a friend of Randle’s, was arrested about three months later

for possession of less than one gram of cocaine. Seeking leniency, Moses told

police that Randle had admitted to being the getaway driver for the Fiesta robbery.

Moses also said that he had seen various items of personal property inside Randle’s

house that did not belong to Randle. According to Moses, Randle confessed to

taking the items from the same stolen Caravan that the two robbers used to flee

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from the Fiesta. Moses also claimed that Randle admitted to dumping Wilkins’s

body and the robbery weapons. Based on Moses’s statement, police obtained a

warrant to search Randle’s home, where they found numerous items taken from the

stolen Caravan. Telephone records also demonstrated a number of phone calls

between Wilkins and Randle on the date of the robbery.

      A grand jury indicted Randle for capital murder. A jury found him guilty.

                      Attempted Impeachment of Sergeant Odom

      Houston Police Sergeant R. Odom served as the lead investigator in the

Fiesta robbery case and testified for the State. On direct examination, Odom

explained that he spoke with Moses while Moses was serving time in the Harris

County Jail for a 2008 cocaine possession offense. According to Odom, Moses

provided valuable information to Odom about Randle’s involvement with the

Fiesta robbery which, in turn, led to the issuance of a search and arrest warrant for

Randle. Odom informed Moses that he could not make any deals or promise

leniency in exchange for this information. But, Odom did request that the

prosecutor in Moses’s case allow Moses to serve out his sentence in county, rather

than state, jail. Moses served his nine-month cocaine possession sentence in the

Harris County Jail.

      During Randle’s trial, the State asked Odom these questions regarding

whether Moses had been arrested since his release from the Harris County Jail:

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      Q.     [State Counsel:] Are you aware of any charges that [Moses is]
             facing or that [Moses is] getting any deal for to testify?

      A.     [Odom:] None that I’m aware of.

      Q.     Since Mr. Moses served his time on that case, has he even been
             arrested —

      A.     Not that I’m aware of.

      Q.     — on any other offense?

      A.     No.

      As a result of this testimony, Randle requested permission to introduce

impeachment evidence of Moses’s “entire criminal history.” Randle argued that

Odom’s testimony created a false impression with the jury, thereby opening the

door to the introduction of otherwise inadmissible evidence. The evidence Randle

sought to introduce consisted of a printout from the Harris County Justice

Information Management System (JIMS) booking database purporting to show

Moses’s prior arrests in Harris County from 1976 to 2005. Specifically, the JIMS

printout shows that Moses was arrested for, but ultimately acquitted of, murder in

1976. Additionally, it listed Moses’s numerous traffic-related arrests (e.g., failure

to maintain car insurance and driving with a suspended license), a 1989 burglary

arrest, multiple drug arrests from the 1990s, and the 2008 cocaine possession arrest

that motivated Moses to be forthcoming with law-enforcement officials about the

Fiesta robbery.


                                         5
      The State timely objected to Randle’s request on the ground that neither the

State’s questions nor Odom’s answers opened the door to impeachment evidence

concerning Moses’s criminal record before his 2008 arrest for cocaine possession.

The trial court agreed and rejected Randle’s “opened door” or “false impression”

theory. Randle appeals that ruling.

                                 Standard of Review

      We review a trial court’s evidentiary ruling for an abuse of discretion.

Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Walker v. State,

321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). Unless the

trial judge’s decision was outside the “zone of reasonable disagreement,” we will

uphold the ruling. Oprean, 201 S.W.3d at 726; Walker, 321 S.W.3d at 22.

                             Impeachment Evidence

      In his sole issue on appeal, Randle contends that the trial court abused its

discretion by excluding impeachment evidence of Moses’s criminal history.

Randle argues that Odom’s testimony about Moses left the jury with the false

impression that Moses was a law abiding citizen who did not have a criminal

history except for his 2008 cocaine possession conviction. Randle further argues

that the State’s direct examination of Odom “opened the door” to evidence of

Moses’s full criminal history.




                                         6
      The State responds that there was no false impression to clear up because

“[b]y stating that [Odom] was unaware of Moses being arrested during a four-and-

a-half year period, Odom conveyed to the jury nothing more than that he was

unaware of Moses being arrested during a four-and-a-half year period.” Therefore,

the trial court did not err by excluding evidence of Moses’s pre-2008 criminal

history.

      When attacking the credibility of a witness, evidence of prior criminal

convictions can be admitted only if the crime was a felony or involved moral

turpitude, regardless of punishment, and the court determines that the evidence’s

probative value outweighs its prejudicial effect. See Delk v. State, 855 S.W.2d 700,

704 (Tex. Crim. App. 1993); TEX. R. EVID. 609(a). An exception to rule 609

applies, however, when the testimony of a witness on direct examination “opens

the door” or leaves a false impression with the jury about the extent of the

witness’s prior arrests, convictions, charges, or trouble with the police. See Delk,

855 S.W.2d at 704. Once the witness’s response triggers the exception, opposing

counsel may introduce what would otherwise have been inadmissible evidence

about the witness’s past criminal history. See id. at 704–05.

      In analyzing whether a State’s witness opened the door for the defendant to

correct a false impression, the Court of Criminal Appeals in Delk examined

whether the statement was responsive to the question asked and how broadly the

                                          7
question was asked, given the major substantive issues in the case. Id. at 704–5;

see also Hammett v. State, 713 S.W.2d 102, 106–07 (Tex. Crim. App. 1986)

(holding extent to which question “opened the door” depends on question asked

and statement that witness had one arrest does not leave false impression that

witness had no other arrests or open door to evidence of other arrests). Thus, a

witness is considered to have “opened the door” to evidence of his prior criminal

history only when he does “more than just imply that he abides by the law—he

must in some way convey the impression that he has never committed a crime.”

Theus v. State, 845 S.W.2d 874, 879 (Tex. Crim. App. 1992). Likewise, a witness

who testifies voluntarily or non-responsively about extraneous matters is subject to

cross-examination to correct a false impression presented by the answer. See

Roberts v. State, 29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.] 2000, pet.

ref’d).

          The thrust of Randle’s argument is that Odom’s testimony left the jury with

a false impression that Moses had only one run-in with the police—i.e., his 2008

cocaine possession arrest. In accordance with Delk, we examine the context and

responsiveness of Odom’s answer. The prosecutor began his question with “[s]ince

Mr. Moses served his time on that case, has he even been arrested —.” Odom

interrupted the prosecutor and answered “[n]ot that I’m aware of” before the

prosecutor finished asking his question. Even though Odom answered prematurely,

                                           8
his answer was responsive. Additionally, the prosecutor immediately concluded his

interrupted question with the phrase “on any other offense” so that the complete

question would be fully heard by the jury and reflected in the record. We conclude

that this testimony did not open the door to impeach Moses regarding his entire

criminal history, including traffic offenses and arrests that did not result in a

conviction.

      Randle also argues that the prosecutor’s direct examination of Odom “left

the jury with the impression that the sole drug conviction testified to by Moses . . .

was the extent of [Moses’s] criminal history.” The prosecutor’s question was

framed narrowly to inquire whether Moses had been arrested during a particular

period of time—i.e., the four-and-a-half year period after Moses’s 2008 arrest for

cocaine possession and before his September 2012 arrest just before Randle’s trial.

The focus of the question did not inquire into whether Moses had ever been

arrested. The question simply inquired about the four-and-a-half year period

following Moses’s arrest for possession. Nothing in the record indicates that

Odom’s answer was describing a broader time period.

      Odom’s answer to the prosecutor’s direct, specific question was itself both

direct and specific. He, therefore, answered well within the parameters of the

State’s narrow question. Furthermore, Odom’s answer did not suggest that Moses’s




                                          9
2008 arrest was his first, or that Moses was a law abiding citizen; nor did Odom in

any way imply Moses had such a reputation. Theus, 845 S.W.2d at 879.

      The trial court could have reasonably concluded that Odom’s testimony did

not leave the jury with a false impression about Moses, much less open the door to

cross-examination about Moses’s “entire criminal history.”2 Accordingly, the trial

court did not err in excluding Randle’s impeachment evidence.

       For these reasons, we overrule Randle’s single issue.

                                       Conclusion

      We affirm the judgment of the trial court.




                                                 Harvey Brown
                                                 Justice

Panel consists of Justices Jennings, Sharp, and Brown.

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



2
      Even if we were to determine that the trial court erred by refusing Randle’s request
      to offer impeachment evidence on cross-examination of Odom, that error, if any,
      would be harmless beyond a reasonable doubt. This is so because the impact of
      informing the jury of Moses’s other criminal history would have been nothing
      more than cumulative evidence of his bad character, which was already before the
      jury. For example, the jury knew that Moses was a cocaine user. The jury also was
      aware that Moses withheld important information from law enforcement about an
      unsolved capital murder case until it was in his best interest to disclose it. Thus, if
      it was error to deny Randle’s right to cross-examine Odom about Moses’s arrest
      record, such error was insignificant and likely had no impact on Randle’s trial.

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