                                                                      PD-0793-15
                                                     COURT OF CRIMINAL APPEALS
                                                                     AUSTIN, TEXAS
                                                   Transmitted 8/12/2015 11:44:48 PM
                                                     Accepted 8/17/2015 12:39:30 PM
                          PD-0973-15                                  ABEL ACOSTA
                                                                              CLERK

         IN THE COURT OF CRIMINAL APPEALS
____________________________________________________________

                  MITCHELL DEAN COCHRAN,
                                    Petitioner/Appellant
                              v.

                  THE STATE OF TEXAS,
                                         Appellee
____________________________________________________________

             On Petition for Discretionary Review
        From the Tenth Court of Appeals at Waco, Texas
                 In Cause No. 10-14-00013-CR

     On Appeal from the 54th District Court in Waco, Texas
            The Honorable Matt Johnson Presiding
                    Cause No. 2012-20-C2
____________________________________________________________

  APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
____________________________________________________________


                           Charles W. McDonald
                           SBOT NO: 13538800
                           2024 Austin Avenue
August 17, 2015            Waco, Texas 76701
                           Tel: (254) 752-9901
                           Fax: (254) 754-1466
                           E-mail: ringwraith1cwm@aol.com


ORAL ARGUMENT REQUESTED
               IDENTITY OF PARTIES AND COUNSEL

Parties:

Petitioner/Appellant            Mr. Mitchell Dean Cochran

Appellee                        The State of Texas


Trial Counsel:

For Petitioner                  Mr. Philip D. Frederick
                                100 N. 6th Street, Ste 900
                                Waco, TX 76701


For Appellee                    Mr. Abelino “Abel” Reyna
                                Criminal District Attorney
                                Ms. Hilary LaBorde, Assistant
                                Criminal District Attorney
                                219 North 6th Street, Suite 200
                                Waco, Texas 76701

Appellate Counsel:

For Petitioner                  Mr. Charles W. McDonald
                                2024 Austin Avenue
                                Waco, Texas 76701


For Appellee                    Mr. Abelino “Abel” Reyna
                                Criminal District Attorney

                                Mr. Sterling Harmon,
                                Chief Appellate Division
                                219 North 6th Street, Suite 200
                                Waco, Texas 76701



Cochran                     i
                       TABLE OF CONTENTS

                                      Page(s)
IDENTITY OF PARTIES AND COUNSEL ……………    i

INDEX OF AUTHORITIES ...........................................    ii

STATEMENT REGARDING ORAL ARGUMENT ……                                v

STATEMENT OF THE CASE ……………………………                                   v

STATEMENT OF PROCEDURAL HISTORY …………                               viii

GROUND(S) FOR REVIEW ……………………………...                                 1
   Ground for Review No. 1:
   The Court of Appeals erred in denying Petitioner
   the right to meaningfully cross-examine several
   key witnesses about contradictory statements
   contained in a CPS report proffered by the State
   that was used repeatedly before the jury. (In
   controvertion of the Constitutional right of
   confrontation and Tex. R.Evid. 610, 611, 612 and
   613.)
REASONS FOR GRANTING REVIEW ………………...                              viii

ARGUMENT ………………………………………………..                                       1

PRAYER ……………………………………………………..                                      10

SIGNATURE ………………………………………………                                       10

CERTIFICATE OF COMPLIANCE ……………………                                 11

CERTIFICATE OF SERVICE ……………………………                                 11

APPENDIX:
Exhibit No. 1: Court of Appeals Opinion



Cochran                               ii
                   INDEX OF AUTHORITIES

Cases                                                            Page(s)

Coleman v. State, 545 S.W.2d 831, 834 (Tex. Crim. App.
                                                                   9
1977) ………………………………………………………………

Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed.
2d 347 (1974) …………………………………………………….                               7, 9

Fuentes v. State, 673 S.W.2d 207, 209 (Tex. App., Beaumont
                                                                   6
1984, pet. ref.) ……………………………………........................

Howard v. State, 505 S.W.2d 306 (Tex. Crim. App. Rev. on
                                                                   3
other grounds) ……………………………………………………

Gaskin v. State, 172 Tex. Crim.7; 353 S.W.2d 467 (Tex.
                                                                   4
Crim. App. 1962) …………………………………………………

Greene v. Wainwright, 634 F.2d 272, 275 (5th Cir. [Fla.]
                                                                   8
1981) ……………………………………………………………..

Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed.
2d 923 (1965) ……………………………………………….                                  5

Robertson v. State, 871 S.W.2d 701; (Tex. Crim. App. 1993)
(rev. on other grounds) …………………………………………..                         5

Robinson v. State, 550 S.W.2d 54, 59 (Tex. Crim. App. 197          4

Spain v. State, 585 S.W.2d 705, 710 (Tex. Crim. App. 1979)         7

United States v. Bares, 790 F.2d 392, 400 (5th Cir. [Tex.]
1986) ……………………………………………………………..                                    7

United States v. Balliviero, 708 F.2d 934, 938 (5th Cir. [La.]
                                                                   6
1983), cert. denied, 464 U.S. 939 (1983) ………………………



Cochran                            iii
Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987)
                                                            8
(plurality opinion) ……………………………………………….

Constitutions

U.S. Sixth Amendment ……………………………………..                       5

U.S. Fourteenth Amendment ………………………………                      6

Rules


Tex. R. Evid. 610(b)……………………………………………                      x,2
Tex. R. Evid. 611 ………………………………………………                       x,1
Tex. R. Evid. 612 ………………………………………………                       x,1
Tex. R. Evid. 613 ……………………………………………..                      1, 3




Cochran                         iv
              Statement Regarding Oral Argument

   Oral argument will aid the decisional process. By granting

oral argument, counsel may answer questions posed by the

judges regarding the codification of the “Gaskin Rule” and “use

before the jury rule,” plus its relation to this case. In addition,

oral argument would allow counsel to answer questions

regarding the constitutional and evidence rules concerning

impeachment/cross-examination         parameters.         Petitioner

respectfully requests the opportunity to appear and present oral

argument.


                      Statement of the Case

       This cases arises out of allegations that Petitioner, Mitchell

Dean Cochran, sexually assaulted his step- daughter, Cassondra

Garcia.     The victim testified that she resided with Petitioner

during grades 2 -10. (3 RR at 162)

       Detective Brad Bond, Hewitt PD (chief detective), stated

the investigations of the case began in 2009.

       Cassandra Garcia gave a description of the abuse. (3 RR at

173)      She was 14 or 15 when the abuse by Petitioner started.


Cochran                           v
She began cutting herself shortly thereafter. (3 RR at 185-186)

Petitioner denied the allegations on two or more occasions. (3 RR

at 34, 43)

      Central to the issues in this case is a CPS report that was

mentioned throughout the trial (in the presence of the jury),

beginning at 3 R.R. at 78. The main detective talked about

inaccuracies in the CPS report beginning at 3 R.R. at 80. The

State even had this report marked as Exhibit 2, although it was

never admitted into evidence. (3 R.R. at 124) The crux of the

report is that it mentions that the victim and her mother both

stated therein that problems in the home started or had to do

with the victim being caught with boys in the family home

without permission. The victim and the mother both testified

that there were not ever any boys in the home or that it caused

any problems. (3 R.R. at 253-256) (4 R.R. 85). The trial court

prevented defense counsel the opportunity to cross-examine the

victim's mother about these discrepancies by granting the States’

motion and, objections during trial. (4 R.R. 85-87) The defense

was not allowed to impeach the mother with prior inconsistent



Cochran                         vi
statements made by the mother to a CPS worker in an unsigned

report. The CPS witness no longer worked for CPS and was

unavailable. Her supervisor could say that the records contain a

narrative that the mother made 2 statements about boys in the

house. (4 R.R. 101 – 105) The defense made an offer of proof

showing that the CPS report would impeach the mother and the

victim with prior inconsistent statements. (4 R.R. 130 – 137) The

origin of the CPS report, where it came from and the state

acknowledging the report's accuracy is amply set forth. (4 R.R.

101-105)   The CPS supervisor testified about the report, its

purported author, and its authenticity, but was not allowed to

answer in the presence of the jury about the prior inconsistent

statements concerning the “boys at the house issue”.

      Ms. Terrell (supervisor) testified that the CPS report

narrative related that the victim’s mother had reported two

incidents where the victim had been caught with boys in the

house. (4 RR at 133) Ms. Terrell also agreed that the narrative

contained a purported opinion from the victim’s grandmother

that the victim had a history of lying. (4 RR at 134)



Cochran                          vii
      The trial court also prevented the pertinent questions about

prior bad acts and testimony inconsistencies with two defense

witnesses with first-hand knowledge of same. (4 RR at 291-296, 4

RR at 331-336) Offers of proof were also made of these, as well.



              Statement of Procedural History

      Petitioner was indicted on January 12, 2012 on 5 counts of
sexual assault of a child, a person whom defendant is prohibited
from marrying and 2 counts of indecency with a child by contact.
(CR at 6-9) Following a trial by jury, on December 13, 2013 the
jury sentenced Petitioner to 12 years TDCJID on each count,
with the sentence to run consecutively on the first two counts
and concurrently on counts 3-7. (CR at 151) On that same date,
the trial court certified this was not a plea bargain case and
defendant had the right to appeal. (CR at 140) Notice of appeal
was filed on December 13, 2013. (CR at 141)       An unpublished
Memorandum Opinion was delivered on April 16, 2015 and
Petitioner’s Motion for Rehearing was denied on May 27, 2015,
hence this PDR.


                  Reasons for Granting Review
      The Court should grant discretionary review in this appeal
because the Waco Court of Appeals: (1) has decided important
questions of state and federal law in a way that conflicts with the


Cochran                          viii
applicable decisions of this Court and of the Supreme Court of
the United States; (2) has misconstrued Tex.R.Evid. 610, 611,
612 and 613 which are the codification of “the use before the
jury” and “Gaskin” rules; and (3) has so far departed from the
accepted and usual course of judicial proceedings as to call for an
exercise of this Court’s power of supervision. TEX. R. APP. P. 66.3.




Cochran                          ix
                           Grounds for Review

Ground for Review 1:

      The Court of Appeals erred in denying Petitioner the right

to meaningfully cross-examine several key witnesses about

contradictory statements contained in a CPS report proffered by

the State that was used repeatedly before the jury. (In

contravention of the Constitutional right of confrontation and

TRE 610, 611, 612 and 613.)


                               Argument

      Counsel submits that the opinion written by the court of

appeals fails to take into consideration certain key issues and

arguments advanced by Petitioner.

      Counsel suggests the court of appeal’s opinion glossed over

the trial court's denial of a meaningful cross-examination by

preventing the defense counsel from impeaching and exploring

prior inconsistent statements by several key witnesses during

the       trial.   These   witnesses       included   the   complainant,

complainant’s mother, grandmother and brother. Such denial of

cross-examination centers around a CPS report that was


Cochran                                1
mentioned throughout the trial in the presence of the jury. The

key substance of the report states that the complainant, her

mother, and grandmother previously mentioned                (to CPS)

problems in the home, the complainant being caught at different

times with boys without parental permission and drug use.

      The CPS records were properly authenticated and in effect

stipulated to as accurate by the State. 4 R.R. 101-104. The

credibility of these witnesses were the core of the case. It was

crucial for the defense to be able to adequately cross-examine

these witnesses and to discredit them.

      The State concedes in its brief that the chief detective and

lead investigator in the case identified the CPS report as a copy

of the (actual) document. (3 RR at 79) The chief detective also

stated he reviewed the CPS report prior to his in court testimony.

(3 RR at 33 – State), (3 RR at 78-79, 93 – defendant)

      A witness may be cross-examined on any matter relevant to

any issue in the case, including credibility. Tex. R. Evid. 610(b).

The       trial   court   prevented   proper   and   necessary   cross-

examination that would've reflected the unreliability of the



Cochran                               2
State's key witnesses for the jury's consideration. This cross-

examination should have been allowed to provide Petitioner the

opportunity to show the bias, motive, false testimony or ill will of

these witnesses.    The report also contained prior inconsistent

statements by various witnesses that the defense was prevented

from going into in violation of Tex. R. Evid. 613.

      The court of appeals improperly focused on the authenticity

of the CPS report and disregarded the following facts:

   • the State’s witness (chief detective) used it to refresh his
      memory prior to testifying;
   • the prosecution, on direct examination, put it in issue;
   • it was repeatedly used before the jury;
   • the detective used it during his investigation;
   • the detective authenticated the report;
   • the State had it marked as an exhibit; and
   • The State conceded in its brief that the detective identified
      the CPS report.
   Under the (old) “use before the jury rule” a defendant is

entitled to inspect, upon his timely request, any document,

instrument or statement which has been used by the State before the

jury in such a way that its contents become an issue. Howard v.




Cochran                             3
State, 505 S.W.2d 306 (Tex. Crim. App. 1974) (rev. on other grounds)

This was superseded by Tex. R. Evid. 611.

      Under the (old) “Gaskin Rule” where a witness for the State

has made a report or has given a statement prior to testifying, the

defendant, after a timely motion or request, is entitled to inspect and

use such prior and available report or statement for cross-

examination and impeachment purposes, and this right obtains even

though the witness has not used the instrument to refresh his

memory. See Gaskin v. State, 172 Tex. Crim.7; 353 S.W.2d 467 (Tex.

Crim. App. 1962) This was superseded by Tex. R. Evid. 612.

      “When a writing is used by the witness to refresh his

memory, the opposing party upon request can inspect the document

and use it for purposes of cross-examination. Further the opposing

party can introduce the document, not for the truth of the matter

asserted, but for use by the jury in comparing the document to the

witness’s testimony”.    Robertson v. State, 871 S.W.2d 701; (Tex.

Crim. App. 1993) (rev. on other grounds)

      “In this instance the report was used by the witness to

refresh his memory prior to testifying.” Id.



Cochran                            4
      “Rule 611 is broader than prior common law rules governing

admissibility of documents relied upon by witnesses. Previously, the

introduction of such documents were governed by the “Gaskin Rule”

and the “use before the jury rule.” The “Gaskin Rule” only applied

where the writings were prepared by the witness. Additionally, the

scope of discovery and introduction of documents under the “Gaskin

Rule” was limited to cross-examination and impeachment. Rule 611

does not contain any such limitation, but simply provides that

portions of the document used to refresh a witness’s memory which

“relate to” the testimony of the witness.” Id

      “A document admitted under Rule 611 is not admitted for

the truth of the matter asserted, but rather it is admitted for

purposes of testing the credibility of the testifying witness.”    Id

(internal citations omitted)

      Every defendant has a Sixth Amendment right to confront

adverse witnesses.    U.S. Const., Amend. VI; Pointer v. Texas, 380

U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). The Sixth

Amendment right of confrontation consists of four elements: physical




Cochran                            5
presence, oath, cross-examination, and observation of demeanor by

the trier of fact.

      The right of cross-examination is included in the right of

confrontation and is one of the essential safeguards to a fair trial.

Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 13 L. Ed. 2d 923

(1965)

      The right of a free and unfettered cross-examination is

considered basic to our adversary system.        Fuentes v. State, 673

S.W.2d 207, 209 (Tex. App., Beaumont 1984, pet. ref.) As a result, a

deprivation of the right of cross-examination is considered to be a

denial of the Fourteenth Amendment guarantee of due process.

Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 13 L. Ed. 2d 923

(1965)

      The defendant must be given an opportunity to reveal to the

jury the facts from which the jurors, as triers of fact and credibility,

can appropriately draw inferences relating to the reliability of the

witness. See United States v. Balliviero, 708 F.2d 934, 938 (5th Cir.

[La.] 1983), cert. denied, 464 U.S. 939 (1983)




Cochran                             6
      The proper determination by the court of appeals is whether

the trial court imposed unreasonable limits on cross-examination

such that a reasonable jury might have received a significantly

different impression of a witness's credibility had the defendant

been permitted to pursue the proposed cross-examination. United

States v. Bares, 790 F.2d 392, 400 (5th Cir. [Tex.] 1986)

      Cross-examination is the principal means by which the

believability of a witness and the truth of the testimony are tested.

Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347

(1974) An effective cross-examination should expose the limits of

the witness's knowledge of relevant facts, place the witness in his or

her proper setting, and test the witness's credibility. Spain v. State,

585 S.W.2d 705, 710 (Tex. Crim. App. 1979)

      Counsel suggests that the court of appeals failed to consider

that the trial court improperly limited Petitioner's Sixth

Amendment right to confront and cross-examine witnesses

against him by circumscribing the non-collateral impeachment

questions proffered. The impeachment of the complainant, her

mother, brother and grandmother certainly should have been



Cochran                            7
allowed in the presence of the jury. The State knew not only of

the CPS reports authenticity, but used every means available to

discredit it and ultimately to prevent Petitioner’s defensive use of

it. The State did not consider it a collateral matter as they had it

marked as evidence for intended use until it became clear that

Petitioner could possibly make better use of it defensively.

      A trial court should generally allow the defendant great

latitude to show any relevant fact that may affect a witness's

credibility. Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987)

plurality opinion; Robinson v. State, 550 S.W.2d 54, 59 (Tex. Crim.

App. 1977

      Therefore, the permissible scope of cross-examination in this

area should be wide. Greene v. Wainwright, 634 F.2d 272, 275 (5th

Cir. [Fla.] 1981)

      It provides the defendant with an opportunity to place the

witness in a proper setting regarding his or her testimony. Extreme

prejudice results from a denial of this opportunity. Harris v. State,

642 S.W.2d 471, 476 (Tex. Crim. App. 1982), cert. denied, 484 U.S.

872 (1987), Davis, supra



Cochran                           8
      A party should be allowed to show all facts that tend to

demonstrate mental bias, interest, prejudice, or any other motive,

mental state, or status of the witness that, fairly considered and

construed, might even remotely tend to affect the witness's

credibility. Hinojosa v. State, 788 S.W.2d 594, 600 (Tex. App.,

Corpus Christi 1990, pet. ref.)

      Any motive that operates on the mind of a witness during

testimony is material to the trial because of its effect on the

witness's credibility. See Coleman v. State, 545 S.W.2d 831, 834

(Tex. Crim. App. 1977)

                            Conclusion

      The State used the CPS report to buoy up its case to bolster

the credibility of its witnesses. (3 R.R. at 80, 112, 115-122) Yet

the State persuaded the trial court to help sink Petitioner's case

by denying effective cross-examination. (4 R.R. at 101-105, 291-

296, 331-336) The court of appeals affirmed this by disregarding

over 50 years worth of constitutional common and statutory law

by opining instead on authenticity.    Clearly, the State and the

court of appeals cannot have it both ways when it harms



Cochran                           9
Petitioner by depriving him of fundamental constitutional and

statutory rights and this court should so hold.


                             Prayer

      Petitioner requests the Court to: (1) grant review on the

issue presented in this petition for discretionary review; and (2)

grant such other and further relief to which he may show himself

justly entitled and accordingly so prays.


                                        Respectfully submitted,

                                        Charles W. McDonald
                                        Texas Bar No. 13538800
                                        2024 Austin Avenue
                                        Waco, Texas 76701
                                        Tel: (254) 752-9901
                                        Fax: (254) 754-1466
                                        Attorney for Petitioner,
                                        /s/Charles W. McDonald
                                           Charles W. McDonald




Cochran                          10
                     Certificate of Compliance

          The undersigned hereby certifies, pursuant to Rule of

Appellate Procedure 9.4(i)(3), that this computer-generated

document contains 1760 words.

                                  /s/ Charles W. McDonald
                                           Charles W. McDonald


                       Certificate of Service

            The undersigned hereby certifies that a true and correct
copy of this brief was served electronically on August 12, 2015 to:
(1)     counsel     for     the     State,    Sterling     Harmon,
sterling.harmon@co.mclennan.tx.us; and (2) the State Prosecuting
Attorney, lisa.mcminn@SPA.texas.gov.



                                        /s/ Charles W. McDonald
                                            Charles W. McDonald




Cochran                           11
APPENDIX
                                    IN THE
                            TENTH COURT OF APPEALS

                                  No. 10-14-00013-CR

MITCHELL DEAN COCHRAN,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                             From the 54th District Court
                              McLennan County, Texas
                              Trial Court No. 2012-20-C2


                            MEMORANDUM OPINION


          In two issues, appellant, Mitchell Dean Cochran, challenges his convictions for

five counts of sexual assault of a child and two counts of indecency with a child by

contact. See TEX. PENAL CODE ANN. §§ 21.11, 22.011 (West 2011). Specifically, Cochran

asserts that the trial court erred by: (1) preventing him from presenting impeachment

evidence; and (2) denying him the right to properly cross-examine two witnesses. We

affirm.
                                            I.       BACKGROUND

        Cochran was charged by indictment with five counts of sexual assault of a child

and two counts of indecency with a child by contact. At the conclusion of the evidence,

the jury found Cochran guilty on all counts and sentenced Cochran to twelve years’

confinement in the Institutional Division of the Texas Department of Criminal Justice on

each count. The trial court stacked two of the sentences and ordered that the remaining

sentences run concurrently.1 The trial court also certified Cochran’s right of appeal, and

this appeal followed.

                                     II.      IMPEACHMENT EVIDENCE

        In his first issue, Cochran contends that the trial court erred in not admitting

impeachment evidence—statements allegedly contained in a CPS report.

A.      Standard of Review

        We review a trial court’s admission or exclusion of evidence for an abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court

abuses its discretion if it acts arbitrarily or unreasonably, without reference to any

guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.

1990). When considering a trial court’s decision to admit or exclude evidence, we will

        1  The judgments for each of the convicted offenses reflect that the sentences were to run
concurrently; however, both the case information sheet contained in the Clerk’s Record and the trial
court’s statements in open court indicate that two of the sentences were ordered to run consecutively
with the remaining sentences to run concurrently. See Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim.
App. 2002) (“A trial court’s pronouncement of sentence is oral, while the judgment, including the
sentence assessed, is merely the written declaration and embodiment of that oral pronouncement. When
the oral pronouncement of sentence and written judgment vary, the oral pronouncement controls.”
(internal citations omitted)); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); see also Robinson v.
State, Nos. 10-13-00304-CR & 10-13-00305-CR, 2014 Tex. App. LEXIS 6631, at **4-5 (Tex. App.—Waco June
19, 2014, no pet.) (mem. op., not designated for publication).

Cochran v. State                                                                                        Page 2
not reverse the trial court’s ruling unless it falls outside the “zone of reasonable

disagreement.” Id. at 391; see Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App.

2003).

B.       Discussion

         On appeal, Cochran complains that the trial court erroneously prevented him

from impeaching the victim in this case with statements she allegedly made to a CPS

caseworker. Cochran asserts that the statements contained in the CPS report were

central to his theory to undermine the credibility of the victim. It appears that Cochran

wished to impeach the victim about her prior drug use and her sneaking boys in the

house that put her at odds with her parents.

         Under Texas Rules of Evidence 104(a), whether or not to admit evidence
         at trial is a preliminary question to be decided by the court. A bedrock
         condition of admissibility of evidence in any legal contest is its relevance
         to an issue in the case—that is to say, its tendency to make a fact of
         consequence to determination of the action more or less probable.
         Evidence has no relevance if it is not authentically what its proponent
         claims it to be. . . . In performing its Rule 104 gate-keeping function, the
         trial court itself need not be persuaded that the proffered evidence is
         authentic. The preliminary question for the trial court to decide is simply
         whether the proponent of the evidence has supplied facts that are
         sufficient to support a reasonable jury determination that the evidence he
         has proffered is authentic.

Tienda v. State, 358 S.W.3d 633, 637-38 (Tex. Crim. App. 2012) (internal citations &

footnotes omitted). In other words, the trial court does not abuse its discretion if it finds

that a reasonable juror could not reasonably find that the evidence has been

authenticated. See Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007) (“Indeed,

the requirement of authentication or identification as a condition precedent to


Cochran v. State                                                                        Page 3
admissibility is satisfied by evidence sufficient to support a finding that the matter in

question is what the proponent claims.” (internal citations & quotations omitted)).

          At trial, the victim, the victim’s brother, the victim’s mother, and the

investigating police officer all testified that the statements attributed to them in the CPS

report were never made by them and, thus, were untrue. Specifically, the investigating

officer testified that the CPS caseworker inaccurately attributed statements to him “so I

question anything that she (the caseworker) puts in there, quite frankly.” Moreover,

Veronica Terrell, an investigative supervisor for CPS, testified that the employment of

the CPS caseworker who wrote the report in this case had been terminated because of

“[c]oncerns with falsification of documentation.”       Terrell discovered that the CPS

caseworker alleged “she had interviewed certain people and they had told her certain

things, but that the people would say, no, I hadn’t told them—told her that.”

Accordingly, Terrell testified that the CPS caseworker did not do reliable work.

Additionally, the record reflects that the CPS caseworker who drafted the report did not

testify, and the victim testified that she neither reviewed nor signed the purported CPS

report.

           Based on the foregoing, we cannot say that Cochran, the proponent of the

impeachment evidence, satisfied his burden of demonstrating that the purported CPS

report was authentic. See TEX. R. EVID. 104(a); see also Tienda, 358 S.W.3d at 637-38;

Druery, 225 S.W.3d at 502. Therefore, because nothing in the record authenticates the

purported statements contained in the CPS report, none of the statements were

admissible to impeach the victim’s testimony. See TEX. R. EVID. 104(a); see also Tienda,

Cochran v. State                                                                      Page 4
358 S.W.3d at 637-38; Druery, 225 S.W.3d at 502. Accordingly, we cannot say that, in

performing its Rule 104 gate-keeping function, the trial court abused its discretion in

excluding the complained-of evidence for impeachment purposes. See Martinez, 327

S.W.3d at 736; Manning, 114 S.W.3d at 926; Montgomery, 810 S.W.2d at 380. We overrule

Cochran’s first issue.

                         III.   CROSS-EXAMINATION OF WITNESSES

       In his second issue, Cochran argues that the trial court erred in limiting his right

to cross-examine Lois Helmick and Mitchell Dean Cochran II regarding the victim

allegedly sneaking boys into the house without permission. However, Cochran’s brief

does not have a specific section addressing his second issue.              Instead, Cochran’s

argument section melds his two issues together to the extent that it appears that his

second issue is dependent on the resolution of his first issue—an issue that we have

already overruled. Nevertheless, Cochran makes the following statements, without

citation to authority, that appear to be the extent of his second issue:

       Appellant was prevented from going into prior bad acts of the victim
       when the appellant’s son was on the stand. Appellant also was denied the
       ability to prove up the victim[‘]s drug use and that her having had boys in
       the house causes her parents to be mad at her and argue with each other
       about this behavior. The judge refused the same questions of Lois
       Helmick, a defense witness, to be asked in front of the jury. This was also
       preserved by an offer of proof.

       Based on our review of Cochran’s brief and the record, we cannot say that

Cochran has successfully demonstrated that the trial court erred in limiting cross-

examination of the complained-of topic in this issue. See TEX. R. APP. P. 38.1(i); see also

Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 2d 674 (1986)

Cochran v. State                                                                       Page 5
(noting that the right of cross-examination is not unlimited and that the trial court

retains wide latitude to impose reasonable limits on cross-examination); Irby v. State,

327 S.W.3d 138, 145 (Tex. Crim. App. 2010) (“Nonetheless, the trial judge retains wide

latitude to impose reasonable limits on such cross-examination . . . .”). As such, we

overrule Cochran’s second issue.

                                    IV.   CONCLUSION

       Having overruled both of Cochran’s issues on appeal, we affirm the judgments

of the trial court.




                                               AL SCOGGINS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
(Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed April 16, 2015
Do not publish
[CR25]

*(Chief Justice Gray concurs in the Court’s judgment of affirmance without a separate
opinion.)




Cochran v. State                                                                  Page 6
