                                                                                       PD-1136-15
                                                                     COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
                                                                     Transmitted 10/5/2015 2:24:07 PM
                                                                       Accepted 10/7/2015 2:51:52 PM
                                                                                       ABEL ACOSTA
                               NO. PD-1136-15                                                  CLERK

                                IN THE
                      COURT OF CRIMINAL APPEALS
                              OF TEXAS
                              AT AUSTIN
                         _________________________

                                 JOSE MAYA,
                                      Appellant
October 7, 2015
                                         v.

                          THE STATE OF TEXAS,
                                      Appellee
                         _________________________

                      On appeal in Cause No. F12-34710-T
                      from the 283rd Judicial District Court
                              Of Dallas County, Texas
                  And on Petition for Discretionary Review from
                        the Fifth District of Texas at Dallas
                           In Cause No. 05-14-00486-CR
                         _________________________

      APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   _________________________

                                                Counsel of Record:

             Lynn Richardson                    Nanette Hendrickson
             Chief Public Defender              Assistant Public Defender
                                                Dallas County Public Defender’s Office
             Katherine A. Drew                  State Bar Number: 24081423
             Chief, Appellate Division          133 N. Riverfront Blvd., LB 2
                                                Dallas, Texas 75207-399
                                                (214) 653-3550 (telephone)
                                                (214) 653-3539 (fax)

                      ATTORNEYS FOR PETITIONER/APPELLANT
                                       TABLE OF CONTENTS


INDEX OF AUTHORITIES ................................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT ...............................................2
STATEMENT OF THE CASE .................................................................................2
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ....................2
STATEMENT OF FACTS ........................................................................................3
GROUND FOR REVIEW .........................................................................................3
         Whether the Court of Appeals misapplied Rule 613(a)(4) of the
         Texas Rules of Evidence by admitting extrinsic evidence of J’s
         prior inconsistent statement .............................................................................3
ARGUMENT .............................................................................................................3
         FACTS .............................................................................................................3
         APPLICABLE LAW .......................................................................................5
         THE COURT OF APPEALS’ HOLDING IS INCORRECT .........................6
         CONCLUSION ...............................................................................................9
PRAYER FOR RELIEF ............................................................................................9
CERTIFICATE OF SERVICE ................................................................................10
CERTIFICATE OF COMPLIANCE.......................................................................10




                                                          ii
                                   INDEX OF AUTHORITIES

Cases
Aranda v. State,
  736 S.W.2d 702 (Tex. Crim. App. 1987) ..........................................................8
Huff v. State,
 576 S.W.2d 645 (Tex. Crim. App. 1979) ......................................................6, 8
Maya v. State,
 No. 05-14-00486-CR, 2015 Tex. App. LEXIS 8156, * 9 (Tex. App.—Dallas
 August 4, 2015) ........................................................................................ 3, 7, 8
McGary v. State,
 750 S.W.2d 782 (Tex. Crim. App. 1988) ..........................................................6
Ranson v. State,
  707 S.W.2d 96 (Tex. Crim. App. 1986) ........................................................8, 9
Rules
Tex. R. Evid. 613(a)..............................................................................................6




                                                        iii
                           LIST OF PARTIES

TRIAL COURT JUDGE
Rick Magnis, Judge, Presiding Judge

APPELLANT
Jose Maya

APPELLANT’S ATTORNEYS
AT TRIAL
Sarah Duncan, State Bar No. 24055477

ON APPEAL
Nanette Hendrickson, State Bar No. 24081423

Assistant Public Defenders
Dallas County Public Defender’s Office
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-4399

STATE’S ATTORNEYS
AT TRIAL
Jason Fine, State Bar No. 24068658

ON APPEAL
Alexis E. Hernandez, State Bar No. 24055658

Assistant District Attorneys
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399




TO THE HONORABLE COURT OF CRIMINAL APPEALS:


                                      1
      Jose Maya, Appellant, respectfully presents to this Honorable Court

his Petition for Discretionary Review of the Fifth District Court of Appeals’

Opinion affirming the trial court’s judgment.

         STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument because this case presents a question

of law on issues having statewide impact and possible reoccurrence. Oral

argument may be helpful to the members of this Court in the resolution of

the issues presented.

                        STATEMENT OF THE CASE

      Appellant was charged by indictment with the offense of Indecency

with a Child by Contact. (CR: 11). Appellant pled not guilty to the primary

charge in the indictment. (CR: 66). A jury trial was held, and the jury found

Appellant guilty of the offense. (RR6: 71). After a hearing on punishment,

the court assessed punishment at fourteen years’ imprisonment. (RR6: 66).

Judgment was entered by the trial court on April 16, 2014. (CR: 66). A

notice of appeal was timely filed. (CR: 69).

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      On August 4, 2015, in an unpublished opinion authored by Justice

Evans, the Court of Appeals for the Fifth District of Texas affirmed the trial

court’s judgment. Maya v. State, No. 05-14-00486-CR, 2015 Tex. App.



                                      2
LEXIS 8156, * 9 (Tex. App.—Dallas August 4, 2015). This Court granted

an extension of time to file a Petition for Discretionary Review, which is

timely if filed on or before October 5, 2015.

                         STATEMENT OF FACTS

      The facts of this case, which are extensive, are adequately recited in

the Court of Appeal’s opinion, which is attached to this Petition as required

by TEX. R. APP. P. 68.4 (i).

      Suffice it to say that Appellant was charged with and convicted of

indecency with a child by contact. (CR: 11, 71; RR6: 71).

                         GROUND FOR REVIEW

 Whether the Court of Appeals misapplied Rule 613(a)(4) of the Texas
   Rules of Evidence by admitting extrinsic evidence of J’s prior
                       inconsistent statement.

                               ARGUMENT

      The Court of Appeals incorrectly applied Rule 613 which states

extrinsic evidence of a prior inconsistent statement can be admitted when the

witness does not “unequivocally admit making the statement.” TEX. R.

EVID. 613(a)(4).

FACTS

      The complaining witness, J, testified as a witness for the State. (RR5:

76-134). J testified that her sister told J to tell her aunt, Isabel, that



                                      3
Appellant, their father, touched J’s private part. (RR5: 83). J testified that

her sister texted Isabel who then took J and her sister to Braum’s the next

day. (RR5: 84-85). J stated that she did not tell Isabel anything while at

Braum’s, but her sister told Isabel that Appellant had been touching J since

the seventh grade. (RR5: 85). The prosecutor then asked J if she had

previously spoken with Christine Mack (Mack), a forensic interviewer at the

Children’s Advocacy Center. (RR5: 89). J responded, “I remember talking to

somebody.” (RR5: 89). J stated she remembered some of the specific

statements she made to Mack. (RR5: 89). Defense counsel objected, saying:

            MS. DUNCAN: Objection. This is hearsay. He’s
            trying to back door in her statement and use it as
            evidence.

            MR. FINE:           It’s her own words, Your Honor. It’s
            not hearsay. It’s improper use of impeachment.

            MS. DUNCAN: Can I ask at least for a limiting
            instruction that it be used only for impeachment and not
            as substantive evidence?

            THE COURT:          Yes.

            MR. FINE:          Your Honor, at this point she hasn’t
            even said it’s inconsistent. I’m asking what she told
            Christine. She didn’t say she didn’t say. At this point it’s
            her testimony. I haven’t impeached her.

            THE COURT:         I understand. At the appropriate time I
            will give the appropriate instruction.




                                       4
(RR5: 91-92). At no time did the trial court give an oral or written

instruction to the jury regarding J’s statement. (RR: passim; CR: passim).

The State then continually asked J regarding specific statements she made to

Mack, the forensic interviewer. (RR5: 92-106). J’s answers varied

depending on the question; however, if she stated she did not remember, the

prosecutor would ask if seeing the video of her forensic interview would

refresh her memory. (RR5: 95, 96, 97, 98, 100, 102, 102-103, 104). J

answered in the affirmative to that question almost every time. (RR5: 95, 96,

97, 99, 102, 103, 104). On two occasions she answered, “maybe” and

“probably.” (RR5: 100, 101). Part way through J’s testimony, defense

counsel objected again to the State testifying in order to get the statements

admitted. (RR5: 97-98). At no time did J deny speaking with the forensic

interviewer or giving her a statement. (RR: passim).

APPLICABLE LAW

      Rule 613(a) of the Texas Rules of Evidence provides the

following:

      In examining a witness concerning a prior inconsistent
      statement made by the witness, whether oral or written, and
      before further cross-examination concerning, or extrinsic
      evidence of, such statement may be allowed, the witness must
      be told the contents of such statement and the time and place
      and the person to whom it was made, and must be afforded an
      opportunity to explain or deny such statement…If the witness



                                      5
        unequivocally admits having made such statement, extrinsic
        evidence of same shall not be admitted.


Tex. R. Evid. 613(a); McGary v. State, 750 S.W.2d 782, 786 (Tex.

Crim. App. 1988) (quoting Huff v. State, 576 S.W.2d 645, 647 (Tex.

Crim. App. 1979)

THE COURT OF APPEALS’ HOLDING IS INCORRECT

        The Court of Appeals’ decision is in conflict with the holding of this

Court. The Court of Appeals held in the case at bar that because J testified

in a reluctant manner regarding her statement to Christine Mack, the forensic

interviewer, extrinsic evidence of the forensic interview was admissible.

However, the rule does not predicate admission of extrinsic evidence on how

one testifies to the content of the statement, but whether they “unequivocally

admit making the statement.” Tex. R. Evid. 613(a)(4).

        The Court of Appeals cited in its opinion the foundation laid by the

State for admission of extrinsic evidence of J’s interview with Christine

Mack.

        Q. Okay. All right. And this is over two years ago, right?
        A. Yes.
        Q. And this has been really difficult on you, right?
        A. Yes.
        Q. Are there a lot of things that you don't really want to talk
        about or want to remember about that?
        A. Yes.



                                       6
      Q. So you’re not saying it didn't happen. You just don’t
      remember that?
      A. Yes.
      Q. Okay. Do you remember a couple weeks after Braum’s that
      you went down to a place called the Children’s Advocacy
      Center and talked to a woman named Christine Mack?
      A. I remember talking to somebody.
      Q. Do you remember she had dark hair, long dark hair?
      A. Yes.
      Q. And do you remember what you told Christine Mack?
      A. No.

Maya, 2015 Tex. App. LEXIS 8156 at *5; (RR5: 89). The Court of Appeals

appears to confuse being reluctant to testify to the contents of the statement

with failing to unequivocally admit making the statement at all. The Court of

Appeals relies on J’s reluctance when testifying about the interview. Id. at

*6. While J might have been hesitant while testifying about the contents of

the statement, at no time during her testimony did she deny or fail to

“unequivocally admit” making a statement to Christine Mack. Rather, as

seen in the exchange cited above, J stated that she remembered talking to

someone at the Children’s Advocacy Center. (RR5: 89). That testimony

admits making the statement in question.

      The Court of Appeals also disregarded the fact that not only did J

unequivocally admit to making a prior statement, but she admitted that the

prior statement contradicted her trial testimony. The State acknowledged and

J confirmed during her testimony that she was not going to testify consistent



                                      7
with her prior statements to her aunt or the forensic interviewer, Christine

Mack. (RR5: 83, 109). Indeed, the State told J regarding her prior statements

“…I understand and I understand that what you are going to say today is that

what you said back then wasn’t the truth, right?” (RR5: 83). J then replied,

“yes.” (RR5: 83). The Court of Appeals cited Aranda v. State for the

proposition that “if a witness unequivocally admits a prior statement is

inconsistent with his trial testimony the process of impeachment is

accomplished and other evidence of the prior statement or confession is

inadmissible.” Maya, 2015 Tex. App. LEXIS 8156 at *6, citing Aranda v.

State, 736 S.W.2d 702, 708 (Tex. Crim. App. 1987). However, they failed

to apply it to J’s testimony that her prior statements were inconsistent with

her trial testimony.   Since J admitted that her prior statements were

inconsistent with her testimony at trial, the extrinsic evidence of her

statements to Mack should have been held inadmissible.

      The present case is not unlike the situation in Huff v. State where the

prosecutor read grand jury testimony to the witness and asked if she

remembered making the statement, without first eliciting a denial of the

prior statement. Huff, 576 S.W.2d at 647-648 (Tex. Crim. App. 1979). “A

negative response to this question is not a denial that she made the

statement.” Ranson v. State, 707 S.W.2d 96, 102 (Tex. Crim. App. 1986)



                                     8
(Miller, J., dissenting). Because the prosecutor “failed first to elicit a denial

of the prior statement,[he] likewise interjected into evidence a large portion

of a purported prior statement that was otherwise inadmissible.” Id.

      In the case at bar, the State improperly admitted portions of J’s

forensic interview by continually asking if she remembered specific

statements to Christine Mack. However, J never unequivocally admitted

making these statements to Mack first. By asking questions in this way, the

State admitted portions of the interview which would have been otherwise

inadmissible. As such, contrary to the Court of Appeal’s opinion, this was

improper impeachment.

CONCLUSION

      The Court of Appeals’ decision to affirm the trial court’s ruling admitting

J’s prior inconsistent statement is in conflict with this Court’s ruling. This

Court should grant discretionary review to resolve this discrepancy between the

Court of Appeal’s ruling and the ruling of this Court.

                          PRAYER FOR RELIEF

      For the reasons herein alleged, Appellant prays this Court grant this

petition and, upon reviewing the judgment entered below, remand the case

for a new trial.




                                       9
                                      Respectfully submitted,
                                      Lynn Richardson
                                      Chief Public Defender

                                      /s/ Nanette Hendrickson
                                      Nanette Hendrickson
                                      Assistant Public Defender
                                      State Bar No. 24081423

                      CERTIFICATE OF SERVICE

       I hereby certify that on the 5th day of October, 2015, a true copy of
the foregoing petition for discretionary review was served on Lori Ordiway,
Assistant District Attorney, Dallas County Criminal District Attorney’s
Office, 133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207,
by electronic and hand delivery; and was also served on, Lisa C. McMinn,
State Prosecuting Attorney, P.O. Box 13046, Austin, Texas, 78711 by
electronic delivery and by depositing same in the United States Mail,
Postage Prepaid.
                                        /s/ Nanette Hendrickson
                                        Nanette Hendrickson

                   CERTIFICATE OF COMPLIANCE

      I certify that the foregoing Petition for Discretionary Review contains
2,193 words.
                                         /s/ Nanette Hendrickson
                                         Nanette Hendrickson




                                     10
User Name: nanette hendrickson
Date and Time: Oct 02, 2015         2:26 p.m. EDT
Job Number: 24536766


Document(1)

1.   Maya v. State, 2015 Tex. App. LEXIS 8156
     Client/Matter: -None-
     Narrowed by:
          Content Type                          Narrowed by
          Cases                                 Court: Texas




                         | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2015 | LexisNexis.
                                                nanette hendrickson
No Shepard’s Signal™
As of: October 2, 2015 2:26 PM EDT


                                                      Maya v. State
                                      Court of Appeals of Texas, Fifth District, Dallas
                                                August 4, 2015, Opinion Filed
                                                     No. 05-14-00486-CR

Reporter
2015 Tex. App. LEXIS 8156

JOSE MAYA, Appellant v. THE STATE OF TEXAS,                       LexisNexis® Headnotes
Appellee
                                                                     Criminal Law & Procedure > ... > Standards of Review > Abuse
Notice: PLEASE CONSULT THE TEXAS RULES OF                            of Discretion > Evidence
APPELLATE PROCEDURE FOR CITATION OF
UNPUBLISHED OPINIONS.                                             HN1 A trial court’s decision to admit or exclude evidence is
                                                                  viewed under an abuse of discretion standard. A trial court
Prior History: [*1] On Appeal from the 283rd Judicial             abuses its discretion when its decision lies outside the zone
District Court, Dallas County, Texas. Trial Court Cause No.       of reasonable disagreement.
F12-34710-T.
                                                                     Evidence > ... > Credibility of Witnesses > Impeachment > Prior
                                                                     Inconsistent Statements
Core Terms
                                                                  HN2 A witness’s prior inconsistent statements are admissible
interview, impeachment, limiting instruction, trial court,        to impeach a witness. The rule of admissibility of evidence
prior inconsistent statement, remember, forensic, admit,          of prior inconsistent statements should be liberally construed
witness’s, touching                                               and the trial judge should have discretion to receive any
                                                                  evidence which gives promise of exposing a falsehood.

Case Summary                                                         Evidence > ... > Credibility of Witnesses > Impeachment > Prior
                                                                     Inconsistent Statements
Overview
                                                                  HN3 See Tex. R. Evid. 613(a).

HOLDINGS: [1]-In a trial for indecency with a child by               Evidence > ... > Credibility of Witnesses > Impeachment > Prior
contact, the prosecutor was properly permitted to question           Inconsistent Statements
the complainant regarding her prior inconsistent statements
to a forensic interviewer because the state provided a proper     HN4 There are three requirements to establish the proper
foundation under Tex. R. Evid. 613 by asking the complainant      predicate or foundation for impeachment testimony: (1)
about the time, place and person to whom she made the             identification (time and place and person to whom the
statements and providing her an opportunity to explain or         statement was made); (2) the contents of such statement;
deny the statements; [2]-Error in failing to give a limiting      and (3) the witness must be afforded an opportunity to
instruction on use of the prior inconsistent statements was       explain or deny such statement.
harmless because defendant confessed in his voluntary
                                                                     Evidence > ... > Credibility of Witnesses > Impeachment > Prior
interview with a detective and the detective testified that the
                                                                     Inconsistent Statements
confession corroborated what the complainant said in her
forensic interview.                                               HN5 Tex. R. Evid. 613(a) does not require a witness to deny
                                                                  a prior inconsistent statement. Instead, the rule provides that
Outcome                                                           extrinsic evidence of a witness’s prior inconsistent statement
                                                                  may not be admitted if the witness unequivocally admits
Judgment affirmed.                                                making the statement. Tex. R. Evid. 613(a). If a witness

                                                    nanette hendrickson
                                                                                                                        Page 2 of 6
                                                 2015 Tex. App. LEXIS 8156, *1

unequivocally admits a prior statement is inconsistent with          44.2(b), nonconstitutional error that does not affect
his trial testimony the process of impeachment is                    appellant’s substantial rights must be disregarded.
accomplished and other evidence of the prior statement or
confession is inadmissible.                                          Counsel: For Appellants: Nanette Hendrickson, Dallas, TX.

   Criminal Law & Procedure > Trials > Jury Instructions >           For Appellees: Susan Hawk, Alexis E. Hernandez, Dallas,
   Limiting Instructions                                             TX.

HN6 A trial court must provide a limiting instruction that           Judges: Before Justices Fillmore, Myers, and Evans.
restricts the evidence to its proper scope and instruct the          Opinion by Justice Evans.
jury accordingly. Tex. R. Evid. 105(a).
                                                                     Opinion by: DAVID EVANS
   Criminal Law & Procedure > Trials > Jury Instructions >
   Limiting Instructions
                                                                     Opinion
HN7 The plain language of Tex. R. Evid. 105(a) seems to
place the relevant timing for a limiting instruction request at      MEMORANDUM OPINION
the moment the evidence is admitted.
                                                                     Opinion by Justice Evans
   Evidence > ... > Credibility of Witnesses > Impeachment >
    General Overview                                                 Jose Maya appeals his conviction for the offense of
   Evidence > ... > Credibility of Witnesses > Impeachment > Prior   indecency with a child by contact. In two issues, appellant
   Inconsistent Statements                                           contends that: (1) the trial court abused its discretion in
                                                                     allowing the prosecutor to question a witness regarding her
HN8 Impeachment is aimed at attacking the credibility of a           prior inconsistent statement because it was improper
witness. Testimony admitted only for impeachment purposes            impeachment and (2) the trial court erred by not giving a
is without probative value and cannot be considered as               limiting instruction to the jury when requested by appellant.
substantive evidence. One of the common methods of                   Appellant seeks a reversal and remand for further
impeachment is by the use of prior inconsistent statements,          proceedings. We affirm.
oral or written, under oath or not. The jury may consider the
inconsistency as damaging to the witness’s credibility, but          BACKGROUND
may not use the evidence substantively.
                                                                     In July 2012, appellant was indicted for the offense of
   Evidence > ... > Credibility of Witnesses > Impeachment > Prior   indecency with a child by contact. Appellant pleaded not
   Inconsistent Statements                                           guilty and the trial commenced on April 15, 2014.
   Evidence > ... > Exemptions > Prior Statements > Inconsistent
   Statements                                                        During trial, Detective Kim Vanderveen, the lead detective
                                                                     in this case, testified that she observed the forensic interview
HN9 Tex. R. Evid. 607 permits the use of prior inconsistent          between the victim, J (appellant’s daughter), and an
statements that are hearsay for the purposes of impeachment.         interviewer at the Dallas Children’s Advocacy Center
Courts, of course, must be careful to give jury instructions         (DCAC). Detective Vanderveen spoke with appellant when
limiting the evidence to the issue of impeachment.                   he voluntarily visited her and he confessed [*2] to having
                                                                     touched J ″once a month″ for ″more or less a year.″
   Criminal Law & Procedure > Trials > Jury Instructions >
   Limiting Instructions                                             Maria, J’aunt, testified that she received a text message in
   Criminal Law & Procedure > ... > Standards of Review >            March 2012 from her niece, G, stating that she and her
   Harmless & Invited Error > Jury Instructions                      stepsister, J, needed to speak with her. The next day, Maria
                                                                     picked up G, J, J’s friend, and her sister (G and J’s mother)
HN10 When a trial court errs by refusing to give a                   and took them to Braum’s. Maria testified that she took the
contemporaneous limiting instruction, that error is                  girls to the restroom and J told Maria that her father had
non-constitutional and is subject to a harmless error analysis       been touching her. Maria said that J acted nervous and sad
pursuant to Tex. R. App. P. 44.2(b). Under Tex. R. App. P.           and told her that it started when she was in the seventh

                                                       nanette hendrickson
                                                                                                                              Page 3 of 6
                                                   2015 Tex. App. LEXIS 8156, *2

grade. At the time J spoke with Maria, she was in the eighth           After J testified, the trial court never gave a limiting
grade.                                                                 instruction. On April 16, 2014, the jury convicted appellant
                                                                       of indecency with a child by contact and the court sentenced
Christine Mack, a former forensic interviewer for the                  him to fourteen years of imprisonment.
DCAC, testified about her interview with J. She testified
that a forensic interviewer is a trained professional who              ANALYSIS
interviews children of suspected abuse in a non-leading and
non-suggestive manner. She stated that J was very upset and            I. The Trial Court Properly Allowed the State to Question
emotional once they started speaking about the abuse. Mack             a Witness About Statements Made During Her Forensic
further testified that she did not see any signs of coaching or        Interview
lying during J’s interview.
                                                                       Appellant argues that the trial court abused its discretion
J also testified and stated that she did not want to be in court.
                                                                       when it allowed the prosecutor to question J regarding her
At trial, J testified that G told her to say that her dad had
                                                                       prior statement to Mack because it was improper
been touching her. J also testified [*3] that her mom had
                                                                       impeachment under Rule 613 of the Texas Rules of Evi-
health problems and had just gotten out of the hospital
                                                                       dence. We disagree.
around March 2012. J said that there were a lot of things that
she did not want to talk about or remember. At trial, she
                                                                       A. Standard of Review
testified in answers to appellant’s counsel questions that her
stepsister came up with this story about her dad and she               HN1 A trial court’s decision to admit or exclude evidence is
went along with it to split up their parents and have more             viewed under an abuse of discretion standard. Torres v.
freedom without him around. When the State asked her                   State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial
about her interview at the Dallas Children’s Advocacy                  court abuses its discretion when its decision lies outside the
Center, the following exchange took place:                             zone of reasonable disagreement. Green v. State, 934 S.W.2d
                                                                       92, 102 (Tex. Crim. App. 1996). HN2 A witness’s prior
     Q. Do you remember -- do you remember what you told               inconsistent statements are admissible to impeach a witness.
     Christine at the Advocacy Center?                                 See Aranda v. State, 736 S.W.2d 702, 707 (Tex. Crim. App.
     A. Some of it.                                                    1987). The rule of admissibility of evidence of prior
                                                                       inconsistent [*5] statements should be liberally construed
     Q. Tell the jury some of what you told Christine.
                                                                       and the trial judge should have discretion to receive any
          Appellant’s counsel: Objection. This is hearsay.             evidence which gives promise of exposing a falsehood. Id.
          He’s trying to back door in her statement and use
          it as evidence.                                              B. Texas Rule of Evidence 613
          State’s attorney: It’s her own words, Your Honor.            Rule 613(a) of the Texas Rule of Evidence provides as
          It’s not hearsay. It’s improper use of impeachment.1         follows:
          THE COURT: Overruled.
                                                                             HN3 (1) Foundation Requirement. When examining a
          Appellant’s counsel: Can I ask at least for a                      witness about the witness’s prior inconsistent
          limiting instruction that it be used only for                      statement—whether oral or written—a party must first
          impeachment and not as substantive evidence?                       tell the witness:
          THE COURT: Yes.
                                                                             (A) the contents of the statement;
          State’s attorney: Your Honor, at this point she
                                                                             (B) the time and place of the statement; and
          hasn’t even said it’s inconsistent. I’m asking what
          she told Christine. She didn’t say she didn’t [*4]                 (C) the person to whom the witness made the statement.
          say. At this point it’s her testimony. I haven’t                   (2) Need Not Show Written Statement. If the witness’s
          impeached her.
                                                                             prior inconsistent statement is written, a party need not
          THE COURT: I understand. At the appropriate                        show it to the witness before inquiring about it, but
          time I will give the appropriate instruction.                      must, upon request, show it to opposing counsel.

1
    It appears the State was informing the court what the correct objection was rather than commenting on its intent in asking the question.

                                                         nanette hendrickson
                                                                                                                                Page 4 of 6
                                                    2015 Tex. App. LEXIS 8156, *5

     (3) Opportunity to Explain or Deny. A witness must be                   A. Yes.
     given the opportunity to explain or deny the prior
                                                                             Q. So you’re not saying it didn’t happen. You just don’t
     inconsistent statement.
                                                                             remember that?
     (4) Extrinsic Evidence. Extrinsic evidence of a witness’s
                                                                             A. Yes.
     prior inconsistent statement is not admissible unless the
     witness is first examined about the statement and fails                 Q. Okay. Do you remember a couple weeks after
     to unequivocally admit making the statement.                            Braum’s that you went down to a place called the
                                                                             Children’s Advocacy Center and talked to a woman
     (5) Opposing Party’s Statement. This subdivision (a)
                                                                             named Christine Mack?
     does not apply to an opposing party’s statement under
     Rule 801(e)(2).                                                         A. I remember talking [*8] to somebody.

See TEX. R. EVID. 613(a).                                                    Q. Do you remember she had dark hair, long dark hair?
                                                                             A. Yes.
C. Analysis
                                                                             Q. And do you remember what you told Christine
Appellant argues that the State [*6] did not lay the proper                  Mack?
foundation for admitting J’s prior inconsistent statements.
                                                                             A. No.
The State argues that appellant failed to preserve any
alleged error on this issue by failing to make a timely,                In the above exchange, the State identified the time, place
specific objection. For purposes of our analysis, we have               and person to whom J made the statements. Following this
elected to reach the merits of the issue.2                              exchange, the State went through the content of J’s prior
                                                                        interview with Mack. J often testified in a reluctant manner
As stated above, HN4 there are three requirements to
                                                                        when the State asked about her statements during the
establish the proper predicate or foundation for impeachment
                                                                        forensic interview by stating that she ″didn’t remember″ or
testimony: (1) identification (time and place and person to
                                                                        ″didn’t know.″ Regardless of her reluctance, J was provided
whom the statement was made); (2) the contents of such
                                                                        an opportunity to explain or deny her prior statements.
statement; and (3) the witness must be afforded an
                                                                        Accordingly, we conclude that the State properly established
opportunity to explain or deny such statement. See id.;
                                                                        the foundation for its use of J’s impeachment testimony.
Flowers v. State, 438 S.W.3d 96, 103 (Tex. App.—Texarkana
2014, pet. ref’d). Here, the State established the foundation
                                                                        Appellant also asserts that the witness must deny making
for its impeachment testimony in the following exchange:
                                                                        the statement in order to admit the prior inconsistent
     Q. Okay. All right. And this is over two years ago,                statement. HN5 Rule 613(a), however, does not require the
                                                                        witness to deny the statement. Instead, the rule provides that
     right?
                                                                        extrinsic evidence of a witness’s prior inconsistent statement
     A. Yes.                                                            may not be admitted if the witness unequivocally admits
     Q. And this has been really difficult on you, right?               making the statement. See TEX. R. EVID. 613(a), Aranda, 736
                                                                        S.W.2d at 708 (if a witness unequivocally admits a prior
     A. Yes.                                                            statement is inconsistent with his trial testimony the process
     Q. Are there a lot of things that you don’t really want to         of [*9] impeachment is accomplished and other evidence of
     talk about or want to remember about that?                         the prior statement or confession is inadmissible). As

2
    We note, however, that there is a persuasive argument that appellant’s first issue on appeal has been waived. When the
hearsay/impeachment objection was raised, the trial court did not make a ruling but noted that an appropriate instruction would be given
at the appropriate time. Appellant did not reassert his objection during J’s testimony or obtain a ruling on the objection. As such, the error
has not been preserved. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) (″In general, TEX. R. CRIM. EVID. 103(a)(1)
and TEX. R. APP. PROC. 52 govern preservation of error concerning the admission of evidence in criminal cases. Combined, these rules
state that if, on appeal, a defendant claims the trial judge erred in admitting evidence offered by the State, this error must have been
preserved by a proper objection and a ruling on that objection. The objection must be timely; that is, the defense must have objected to
the evidence, if possible, before it was [*7] actually admitted. If this was not possible, the defense must have objected as soon as the
objectionable nature of the evidence became apparent and must have moved to strike the evidence, that is, to have it removed from the
body of evidence the jury is allowed to consider.″).

                                                         nanette hendrickson
                                                                                                                            Page 5 of 6
                                                  2015 Tex. App. LEXIS 8156, *9

discussed above, J often testified in a reluctant manner when         version of the events at issue. See Hammock v. State, 46
the State asked her about the forensic interview. J                   S.W.3d 889, 893 (Tex. Crim. App. 2001) (HN7 ″[T]he plain
remembered some of her interview statements but not                   language of Rule 105(a) seems to place the relevant timing
others. After review of J’s direct examination, however, it           for a limiting instruction request at the moment the evidence
would be difficult to say that J unequivocally admitted that          is admitted.″). Here, appellant was entitled to a limiting
her prior interview was inconsistent with her trial testimony.        instruction once the State began questioning J about her
As our review of the record supports the trial court’s ruling,        former interview. See Adams v. State, 862 S.W.2d 139,
we cannot say the trial court clearly abused its discretion.          147-48 (Tex. App.—San Antonio 1993, pet. ref’d) (HN8
Accordingly, we overrule appellant’s first issue.                     ″[I]mpeachment is aimed at attacking the credibility of a
                                                                      witness. Testimony admitted only for impeachment purposes
II. Failure to Give Limiting Instruction Resulted in                  is without probative value and cannot be considered as
                                                                      substantive evidence. One of the common methods of
Harmless Error
                                                                      impeachment is by the use of prior inconsistent statements,
                                                                      oral or written, under oath or not. The jury may consider the
In his second point of error, appellant contends that the trial
                                                                      inconsistency as damaging to the witness’s credibility, but
court erred by not giving a limiting instruction at the time it
                                                                      may not use the evidence substantively.″) (internal citations
was requested.3 As stated above, appellant requested a
                                                                      omitted); Miranda v. State, 813 S.W.2d 724, 735 (Tex.
limiting instruction when the State first asked J about the
                                                                      App.—San Antonio 1991, pet. ref’d) (HN9 ″Rule 607
Mack interview:
                                                                      permits the use of prior inconsistent statements that are
                                                                      hearsay for the purposes of impeachment. Courts, of course,
     Appellant’s counsel: Can I ask at least for a limiting           must be careful to give jury instructions limiting the
     instruction that it be used only for impeachment and not         evidence to the issue of impeachment.″). Having [*12]
     as substantive evidence?                                         found error, we proceed to conduct a harm analysis. See
                                                                      Jones v. State, 119 S.W.3d 412, 423-24 (Tex. App.—Ft.
     THE COURT: Yes.
                                                                      Worth 2003, no pet.) (HN10 ″When a trial court errs by
     State’s attorney: Your Honor, at this point she hasn’t           refusing to give a contemporaneous limiting instruction,
     even said it’s inconsistent. I’m asking what [*10] she           that error is non-constitutional and is subject to a harmless
     told Christine. She didn’t say she didn’t say. At this           error analysis pursuant to Texas Rule of Appellate Procedure
     point it’s her testimony. I haven’t impeached her.               44.2(b).″). Here, we have a fair assurance that this error did
                                                                      not affect any substantial right belonging to appellant. See
     THE COURT: I understand. At the appropriate time I               TEX. R. APP. P. 44.2(b) (nonconstitutional error that does not
     will give the appropriate instruction.                           affect appellant’s substantial rights must be disregarded).
                                                                      The appellant confessed to having touched J ″once a month″
The State argues that appellant’s counsel did not request any         for ″more or less a year″ in his voluntary interview with
additional instructions after this exchange and that counsel          Detective Vanderveen. The exhibit of the interview was
abandoned and waived his original objection. Although we              admitted into evidence. Further, Detective Vanderveen
agree that a limiting instruction was appropriate in this             testified that appellant’s confession corroborated what J said
situation, we overrule this issue because such error was              in her forensic interview. In addition, J’s aunt, Maria,
harmless given the evidence presented.                                testified that J told her that J’s father had been inappropriately
                                                                      touching her. Finally, Mack, the forensic interviewer, testified
HN6 A trial court must provide a limiting instruction that            that she did not see any signs of coaching or lying during J’s
restricts the evidence to its proper scope and instruct the           interview. Considering the record in its entirety, we conclude
jury accordingly. See TEX. R. EVID. 105(a). At the time that          that the trial court’s error was harmless and overrule
the State began questioning J about her interview with                appellant’s second issue.
Mack, J had already testified that G told her to say that her
 [*11] dad had been touching her. Accordingly, it was                 CONCLUSION
appropriate for appellant’s attorney to request a limiting
instruction when the State asked about the Mack interview             We resolve appellant’s issues against him [*13] and affirm
because J had already indicated that she had changed her              the trial court’s judgment.

3
   Appellant makes a passing reference to the fact that the trial court ″did not include a written instruction in the jury charge either.″
Appellant, however, does not present any argument or analysis regarding this allegation. As appellant has failed to conduct any Almanza
analysis, the Court will restrict its analysis to the alleged failure to instruct the jury at the time requested.

                                                        nanette hendrickson
                                                                                  Page 6 of 6
                     2015 Tex. App. LEXIS 8156, *13

/s/ David Evans                     JUDGMENT
DAVID EVANS
                                    Based on the Court’s opinion of this date, the judgment of
JUSTICE                             the trial court is AFFIRMED.
Do Not Publish
                                    Judgment entered this 4th day of August, 2015.
TEX. R. APP. P. 47




                         nanette hendrickson
