                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00401-CR
                              NO. 02-13-00402-CR


ROLANDO BOSQUEZ                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

        FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
               TRIAL COURT NOS. 1311910D, 1331026D

                                     ----------

                           DISSENTING OPINION

                                     ----------

      Respectfully, I cannot agree with the majority’s analysis of Appellant’s sole

point on appeal or the conclusions that the majority reaches. The State clearly

accused Appellant of recent fabrication of his exculpatory testimony.            A
statement is hearsay only if it is offered for the truth of the matter asserted. 1 If,

as it appears in the case now before this court, Appellant’s prior statement was

offered only for the purpose of showing, contrary to the State’s position, that the

words were spoken during Appellant’s earlier exchanges with the officer and not

recently fabricated for purposes of trial, then the statement is not hearsay.2 If the

statement had been admitted only to show that the words were spoken and not

for the truth of the matter asserted, we would presume that the jury would follow

the trial court’s proper limiting instruction. Both the State and the defense are

entitled to rebut an allegation or even a suggestion of recent fabrication.3

      The Tome court involved a young girl who was living with her father but

wanted to remain with her mother, who had summer possession of her daughter

when allegations of sexual abuse by the father were made.4 The issue was

whether statements that the child made after she decided she wanted to remain

with her mother should be admitted as prior consistent statements because she



      1
        Tex. R. Evid. 801(d) (“‘Hearsay’ is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.”).
      2
       Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App.) (“An extrajudicial
statement or writing which is offered for the purpose of showing what was said
rather than for the truth of the matter stated therein does not constitute
hearsay.”), cert. denied, 516 U.S. 832 (1995).
      3
       See Tex. R. Evid. 801(e)(1)(B).
      4
       Tome v. United States, 513 U.S. 150, 115 S. Ct. 696 (1995).


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was already actively trying to switch custodial parents. 5      The United States

Supreme Court concluded that statements the girl made after she had begun her

campaign to remain with her mother could not be considered as prior consistent

statements because any motive to fabricate was already established and in

place.6

      If we blindly embrace the reasoning of the Tome court, without considering

the special circumstances, it is difficult to understand how a prior statement could

ever be made before the motive to lie arose. The motive to lie on Monday does

not have to be the exact motive to lie on Tuesday but is maybe, nevertheless, a

motive to lie.      A prospective defendant questioned by the police may be

considered to have a motive to lie simply because he is talking to the police and

does not know exactly what the police want but knows it cannot be good for him.

Anytime a parent or teacher walks into a room and asks a youngster what he or

she was doing, the answer almost inevitably will be “Nothing.” The motive to lie

is commonly presumed in an encounter between a police officer and a suspect,

between an errant spouse and an innocent spouse, between a youngster and a

parent or teacher, or between a police officer and an angry complainant. The

accusation of recent fabrication includes an accusation of fabrication.




      5
          Id. at 156–58, 115 S. Ct. at 700–01.
      6
          Id. at 156, 159, 115 S. Ct. at 700, 702.


                                            3
      The Texas Court of Criminal Appeals recognizes that it is not necessary for

a prior consistent statement to have been made before all motives to fabricate

have arisen:    “The rule requires merely that the witness’ prior consistent

statement be offered ‘to rebut an express or implied charge against him of recent

fabrication or improper influence or motive.’”7 I would hold that the video of

Appellant’s prior exchange with the officer is a prior consistent statement offered

to rebut the State’s charge of recent fabrication and that the trial court abused its

discretion by excluding it.   Otherwise, rule 801(e)(1)(B) can rarely if ever be

invoked by anyone who fears being accused of anything, including prosecution

for a crime he did not commit.8

      The majority states, “Because there was no allegation of recent fabrication

in the June drug case, the video was hearsay; thus, the trial court did not abuse

its discretion by denying Appellant’s request to introduce the video.”9 There was

one stop of Appellant’s vehicle in January. Although Appellant was charged both

with possession of a firearm and with possession of a controlled substance, he

was charged in a single indictment, and the State chose to try both offenses in a

single trial. In June, Appellant was again arrested for possession of a controlled

substance. The State chose to try that case along with the two January cases.

      7
       Dowthitt v. State, 931 S.W.2d 244, 264 (Tex. Crim. App. 1996).
      8
        See, e.g., Morton v. State, 761 S.W.2d 876, 879 (Tex. App.—Austin 1988,
pet. ref’d).
      9
       Majority Op. at 9.


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         The majority concedes that the prosecution attacked Appellant’s general

credibility but states that his credibility was specifically attacked only in the

weapons case. Officer Bucy pulled Appellant over in the January stop. Officer

Tobar pulled Appellant over in June. Yet this is the exchange that occurred at

trial:

         Q [by the State]:   And it’s funny you never told Officer Tobar that
                             the driver of the white truck shot at you, did you?

         A [by Appellant]:   I did, ma’am. That’s the first words that came out
                             of my mouth.

         [State]:     May I approach the witness, Your Honor?

         THE COURT:          Yes.

         Q.     Let’s look at your written statement. I want you to show me in
                this written statement where you say that he shot at you.

         A.     It’s on the other sheet.

         Q.     Okay. Point it out to me.

         A.     It says right here. I told the officer that he had a gun.

         Q.     Does that say he shot at you?

         A.     Well, he had a gun, and that’s what the fire came from.

         Q.     Do you actually admit in here that you shot?

         A.     After he shot at me, yes, I did, ma’am.

         Q.     But there’s nothing in here about him shooting at you.
                Wouldn’t you agree with that? Anywhere.

         A.     No, I thought I did write it in there. This happened so fast.




                                             5
      Q.     In fact, this is the first time we’ve heard of the other person
             shooting at you, right? Isn’t that right?

      A.     No. I—I told the officer that he shot at me first verbally when
             he had me get out the vehicle.

      Q.     You didn’t see Alicia Happy put the dope in the car on your
             side of the car when you got out? You didn’t see that?

      A.     I was getting out of the vehicle, ma’am, following instructions.

      Q.     So you didn’t see her do it?

      A.     No, ma’am.

      Q.     So you want this jury to believe you’re telling the truth, that
             you’re credible, despite your criminal history and despite
             telling them—leaving something virtually important out of your
             statement. You want them to believe that out of two different
             times dope was found in your car, that other people planted it?

      A.     Yes, ma’am.

      The State objected that admitting the video of Appellant’s arrest and

interaction with Tobar would be “improper bolstering” and inadmissible hearsay.

Appellant responded that the purpose of the in-car video was to rebut the

allegation of recent fabrication.     Both the prosecutor and Appellant seem

confused about who stopped Appellant in January; it was Bucy, not Tobar.

When defense counsel asked the trial court to admit the video of Tobar’s

interaction with Appellant, he clearly explained that

      the constant theme throughout the cross-examination was, “These
      are things that we haven’t heard before. You want the jury to
      believe this?”

      ....

             Well, it’s, again, at the time of the arrest. He explained himself
      to the police officer.

                                            6
      ....

             He was explaining that he just picked the car up from J.P. just
      like he told the jury.

      I agree with the majority that the exhibit actually offered was connected to

the June drug offense. I do not agree with the majority that the State limited its

accusations of fabrication to the January drug case. The State was properly

allowed to offer testimony regarding Appellant’s oral exchanges with Tobar

regarding the source of drugs in his truck.      And the State was allowed to

characterize Appellant’s testimony at trial as lies. Defense counsel clearly stated

that Appellant had told Officer Tobar the same thing at the time of his arrest.

That is a request to offer a prior consistent statement in the June drug case.

Appellant had the right to have the jury watch the video that showed what he

actually said in the exchange with Tobar, not for the truth of the statements to

Tobar but for the purpose of showing that Appellant made the statements. He

was not required to sit back and accept the State’s characterization of events that

were captured on video.

      Because I believe that the trial court committed reversible error by

excluding the video, I respectfully dissent.

                                                   /s/Lee Ann Dauphinot

                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PUBLISH

DELIVERED: September 25, 2014


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