                        PD-0668-15                                       PD-0668-15
                                                       COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                       Transmitted 6/10/2015 3:48:58 PM
                                                         Accepted 6/11/2015 3:44:39 PM
                        IN THE TEXAS                                     ABEL ACOSTA
                                                                                 CLERK
                 COURT OF CRIMINAL APPEALS

               NO. - - - - - - - -- - - -
               (Court of Appeals No. 08-13-00105-CR)



                    RICHARD LEE SHERMAN,

                                          PETITIONER,
                               vs.

                      THE STATE OF TEXAS,



                                           STATE



     APPELLANT'S PETITION FOR DISCRETIONARY REVIEW



OF THE EIGHTH COURT OF APPEALS' OPINION AND JUDGMENT IN
CAUSE NO. 08-13-00105-CR ON APPEAL FROM THE 271 8T DISTRICT
COURT OF WISE COUNTY, HON. JOHN FOSTEL, JUDGE PRESIDING.

                                         Timothy Choy
                                         State Bar No. 24056721
                                         204 W. Central Ave.
                                         Fort Worth, TX 76164
                                         Ph: (817) 625-5582
                                         Fax: (817) 625-5881
                                         Email: tim@timchoylaw.com
             June 11, 2015
                                         COUNSEL FOR PETITIONER
                IDENTITY OF PARTIES AND COUNSEL

The Parties to the trial Court's Judgment ::ire:

Richard Lee Sherman TDC #01839864
Boyd Unit, 200 Spur 113
Teague, Texa 75860                                 Defendant/Petitioner

Counsel are:
Tim Choy                                           Defense Counsel
Attorney At Law
204 West Central Ave.
Fort Worth, Texas 79601

The State of Texas                                 Prosecution

Hon. Greg Lowery,
Office of
the Wise County District Attorney
101 N . Trinity Street
Decatur, Texas, 76234
email: districtattomey@co. wise. tx. us.

Hon. John Fostel                                   Judge Presiding
Presiding Judge, 271st District
Court, 101 N Trinity St # 102
Decatur, TX 76234

Hon. David L. Richards
Tex. State Bar No. 16945500                        Former Defense Counsel
3001 West 5th Ste. 800
Fort W01ih, Texas 76107

Hon. Lisa McMinn                                   State of Texas
Office of the State Prosecuting Attorney
P. 0. Box 13046
Austin, Texas 78711-3046
email:information@spa.texas.gov

                                      2
                                        TABLE OF CON TENTS

      Identity of Parties and Counsel. ......................................................................... 2

      Table of Contents . .. ................... ........ . . .. .. . ...... . . . .. . ...... ...... ... .. . ... ...3

      Index of Au.thorities ............................................................................................4

      Statement Regarding Oral Argument................................................ ................. 5

      Statement of The Case .................................................................... .................... 5

      Statement of Procedural History......................................................................... 5

                           QUESTION PRESENTED FOR REVIEW

           Whether the Court of Appeals fundamentally misunderstood the
nature of Petitioner's complaint on appeal, repeatedly stating the Court was
addressing a "hearsay" issue, when actually the Court should have been
addressing a "relevancy" objection that was raised in Petitioner' s complaint on
appeal?

                                        REASON FOR REVIEW

      The Court of Appeals should be directed by this Court to correctly address
the complaint made in the trial court and on appeal.

      Prayer................................................................................................................ 8

     Certificate of Service.........................................................................................9

     Court of Appeals' Opinion and Judgment.. ........................................ Appendix




                                                            3
                                 INDEX OF AUTHORITIES

  Texas Appellate Court Cases

       Richard Lee Sherman v. State of Texas ,
 No. 08-13-00105-CR, April 30, 2015 (Memorandurn Opinion)
(Unpublished)........................................................................................... ............. 6

 RULES

 TEX. R. APP. P. 40.2 . .. .. ..... .... . ............ . .. .. ........ ........ ............................... 5

 TEX. R. APP. 68 . .. ............... . ...... .. ... ................ .... ...... ..............................5




                                                        4
       TO THE COURT OF CRIMINAL APPEALS:

       COMES NOW RICHARD LEE SHERl¥lA1V, by and through his attorney of

record, Tim Choy, and pursuant to Rule 68, Texas Rules of Appellate Procedure, files

this PETITION FOR DISCRETIO~NARY REVIEW, and for such Petitioner would

show this Court as follows:

                   STATEMENT REGARDING ORAL ARGUMENT

       This petition involves an interesting question of state law concerning whether a

defendant's argument on appeal should be correctly recognized and interpreted by the

appellate court.    For that reason, Petitioner believes oral argument would assist the

Court in arriving at its decision.

                           STATEMENT OF THE CASE

      Appellant was convicted of the offense of sexual abuse of a child. Appellant

presented one issue on appeal - a claim that a l'.'elevancx objection in the trial court

was incorrectly overruled by the district judge.

                    STATEMENT OF PROCEDURAL HISTORY

        Petitioner seeks review of the El Paso Court of Appeals Judgment and

Opinion in Richard Lee Sherman v. State of Texas, No. 08- 13-00105-CR, April 30,

2015 (Memorandum Opinio) (Unpublished). This petition is filed on the 1st Monday




                                            5
after the 30th day following issuance of the opintion, the 301h day falling on a

weekend.

                    QUESTI01V PRESENTED FOR REVIEW

    Whether the Court of Appeals fundamentally misunderstood the nature of
Petitioner's complaint on appeal, repeatedly stating the Court was addressing a
"hearsay" issue, when actually the Court should have been addressing a
"relevancy" objection that was raised in Petitioner~s complaint on appeal?

                             RE"'ASON FOR REVIEW

      The Court of Appeals should be directed by this Court to correctly address
the complaint made in the trial court and on appeal.

                                    DISCUSSION

      ~/Ir. Sherman respectfully disagrees with the Eighth Court of Appeals' focus

and emphasis in its determination and resolution of contention that the trial court

erred in overruling trial counsel's relevancy objection.

      This case was transferred to the Eighth Court of Appeals from the Second

Court of Appeals, as noted in the El Paso Court's pt footnote at page 2 of the

opm10n.

      Significantly, Petitioner presented one claim on appeal contending the district

court reversobly erred in overruling defense counsel's relevancy objection to the

introduction of harmful testimony. In its opinion, the Court of Appeals inexplicably

and repeatedly states Petitioner's complaint on appeal involves a claim that the trial



                                           6
court improperly overruled defense counsel's "hearsay" objection. Less this Court

believe that the mistake was simply a typographical error in the opinion, Petitioner

notes the mistake was repeated at critical places in the opinion: "Sherman raises one

issue on appeal. He contends the trial court abused its discretion in overruling his

hearsay objection to a question posed by the State . . . ." (slip opinion, p.

!)(emphasis by Petitioner); Discussion (emphasis by court) Sherman contends the

trial court abused its discretion in overruling his hearsay objection. (slip opinion, p.

5) (emphasis by petitioner).      Although the Eighth court thereafter engages in a

discussion and determination based on the relevancy issue actually presented on

appeal, this Court should have no confidence the court correctly considered and

devoted the level of scrutiny the issue required. Rule 40.2 requires reviewing court's

to issue opinions, "having due regard for the parties' rights and for the proper

administration of justice." Tex. R. App. Proc. Rule 40.2 .. That a three-judge panel

of an appellate court could repeatedly mischaracterize the issue presented and the

objection made in the trial court is indicative of a disregard (not an intentional

disregard, but a disregard) of Petitioner's rights.




                                            'i
                                             I
                              PRAYER FOR RELIEF

      Petitioner prays that for the above reason this Court grant discretionary revie,

and order further briefing and oral argument on the issue presented.        He further

requests reversal of the lower court's decision and remand of his case for new trial.




                                               Respectfully Submitted,




                                               204 West Central A venue
                                               Fort Worth, Texas 76164
                                               Phone: 817/625-5582

                       CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this petition contains 1.097 words and

complies in all other respects, including 14 point font, with T.R.A.P., Rule

9.04(i)(3).




                                           8
                          CERTIFICATE OF SERVICE

      The undersigned, TIM: CHOY,              certifies that he has    sent a

copy of this document (in that it has been e-filed) with the appellate division of the

Wise County District Attorney's Office, Hon. Greg Lowery electronically

atdistrictattorney@co.wise.tx.us , and with the Hon. Lisa McMinn, Office. of the

StateProsecutngAttomey, P. 0. Box 13046 Austin, Texas 78711 -3046, via email to

information@spa.texas.gov, this 1st day of June, 2015 .




                                          19
APPENDIX
                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

 RICHARD LEE SHERMAN,                           §
                                                                No. 08-13-00105-CR
                             Appellant,         §
                                                                   Appeal from the
 v.                                             §
                                                                 271st District Court
 THE STATE OF TEXAS,                            §
                                                               of Wise County, Texas
                             Appellee.          §
                                                                   (TC#CR 16082)
                                                 §

                                          OPINION

       Appellant Richard Lee Sherman was charged with continuous sexual abuse of a child, his

daughter. See TEX.PENAL CODE ANN.§ 21.02(b) (West Supp. 2014). The jury found Sherman

guilty of the lesser-included offense of indecency with a child by contact and assessed punishment

at twenty years' confinement. See TEX.PENAL CODE ANN.§ 21.1 l(a)(l) (West 2011). Sherman

raises one issue on appeal. He contends the trial court abused its discretion in overruling his

hearsay objection to a question posed by the State in its attempt to impeach his sole defense

witness. We conclude the trial court did not abuse its discretion in allowing the State to impeach

the witness on a collateral matter because Sherman opened the door to impeachment in his direct
examination of the witness. Accordingly, we affirm.'

                         FACTUAL AND PROCEDURAL BACKGROUND2

         The complainant, C.S., began living with her father and his wife when she was 10 years'

old. She would normally sleep in her own room, but on three occasions she slept in the master

bedroom with Sherman and his wife.                C.S. testified that Sherman fondled her on all three

occasions. The first time was when she was still 10, and she awakened to find Sherman touching

her underneath her clothes "on the spot" where she urinates. The second time, Sherman was

rubbing her genitals, which she testified hurt her "[r]ight in the middle." The third time was when

C.S. was 11, and C.S. awakened to find Sherman touching her as before. C.S. 's first outcry was

to her mother as she was being returned home to Sherman from a visitation with her mother and

maternal grandmother. 3 C.S. decided to tell her mother because she did not want her father to

touch her again and was scared to go back to his house.

         C.S. testified that during the time she lived with Sherman, a CPS caseworker (Garcia)

would periodically check on her at her father's house and at school. C.S. denied that anyone

coached her to say her father touched her. She denied telling CPS caseworker Garcia that her

maternal grandparents were trying to make her say "bad stuff' about Sherman.

        An investigator with the Wise County Sheriffs Office spoke with Sherman on three

different occasions after the abuse allegations arose. On the first occasion, the investigator


1
  This case was transferTed from the Second Court of Appeals in Fort Worth, and we decide it in accordance with the
precedent of that court to the extent required by TEX.R.APP.P. 41.3.

2
  Because the jury found Sherman guilty of the lesser-included offense of indecency with a child by contact, and
Sherman does not attack the sufficiency of the evidence on appeal, we limit our discussion to the facts relevant to
Sherman's claimed error.
3
  Sherman abused C.S. during a time Sherman and C.S. 's mother were estranged and custody of C.S. was an issue.
C.S. made the outcry to her mother after it was determined that Sherman should have primary custody ofC.S.
                                                        2
    informed Sherman he was not ready to talk because evidence was still being collected. Sherman

    continued to inquire, however, and at one point made the statement, "[I]f I did anything, I was

    asleep." On the second occasion, Sherman denied the abuse allegations and reiterated that if

something had occurred he must have been asleep. At a subsequent interview, Sherman admitted

he touched C.S. on her vagina when C.S. was in bed with him.4 Sherman claimed it was an

accident because he thought he was touching his wife. Sherman then wrote and signed the

following statement and apology:

            I, Richard Sherman, was sleeping in bed one night with my wife and daughter. In
            my sleep I was going to make moves on my wife - well, I was touching on my
            daughter totally thinking it was my wife. When I realized it was not my wife, I got
            so sick to my stomach and went to the other room. I assured [C.S.] that it would
            never ever happen again. And it hasn't ever happened again. I never told any one
            [sic] about this incident because it was so humiliating and I don't think I could
            bring it to myself to say what I- what has happened.



            [C.S.], hey baby girl, daddy is so very sorry for what happened to you. I told [you]
            it was an accident and it was. I would never ever hurt you on purpose - on purpose
            and you should know that. I love you dearly. And once again, I'm so so sorry for
            what I did.

            Sherman called only one witness at trial, CPS caseworker Garcia. Garcia first began

monitoring C.S. on a monthly basis with visits beginning in February 2010, when C.S. was
                                       5
initially placed with Sherman.             At the time, the question of the ultimate custody of C.S. had not

been decided, and CPS was attempting to determine what placement was in C.S.'s best interest.


4
     An audio recording of this interview was admitted into evidence and played for the jury.
5
  A CPS supervisor, who was involved in the investigation of the abuse allegations, testified that after C.S. was placed
with Sherman, she was assigned three different caseworkers, but that caseworker Garcia supervised the case for the
majority of the time. She also testified C.S. informed her she did not tell Garcia about the abuse because Sherman had
threatened her and because she was embarrassed to tell. The supervisor was disappointed with the level of
supervision provided by Garcia who seemed to have a clear bias against the grandparents.
                                                            3
    Garcia testified Sherman had expressed a desire to have full-time custody of C.S., and that C.S. 's

maternal grandparents had expressed "[a] very strong desire" to have custody of C.S. Garcia

testified that sometime around May 2010, C.S. expressed concern that her grandparents wanted

her to say bad things about Sherman or his wife: "C.S. did discuss a few times during the

visitation that her grandparent would whisper at her ... [in] direct violation of the visitation rules of

whispering ... to tell me or tell her attorney [things] that were bad against her mom ... , her step

morn or her dad." In response to questions from Sherman's counsel, Garcia confirmed the CPS

case concerning C.S. had gone to a court-ordered mediation in September in which Garcia had

taken pat1. When asked who had ended up with primary custody, Garcia replied: "All parties

agreed for Mr. Sherman to have primary custody of [C.S.] and that she would have biweekly

weekend visits and standard holiday visits with her grandparents." The outcry of sexual abuse

occurred less than two months after C.S. was informed she would be placed permanently with her

father.

           On cross-examination by the State, Garcia admitted that C.S. had expressed a concern in

March 2010 that Sherman made her write a letter to the judge saying she wanted to live with him.

And, in April 2010, C.S. told Garcia she would rather be living in foster care. When Garcia was

shown Sherman's written statement in which he admitted to touching C.S., Garcia said it was the

first time she had seen the staternent. 6 The following exchange then occurred:

           Q. [Prosecutor] Based on your training and experience, would you allow [C.S.] to
           live with the Defendant based on the statement [he] gave?

                  [Defense attorney]: Objection, relevance, your Honor.

                  The Court: Overruled.

6
  When asked "[d]o you believe that," Garcia was not allowed to answer because the trial cou1t granted defense
counsel's objections based on speculation and testifying as to the credibility of another witness.
                                                      4
        A. So, are you asking ifl would have concerns if she was living there and I was still
        involved; if that's a true statement?

        Q. Yes. If you had received that statement, would you allow [C.S.] to live with the
        defendant based on the statement you just read?

        A. I would have some concerns, but I would take it to the Court, because the Court
        ultimately makes the decision about where the child is placed.

                                           DISCUSSION

        Sherman contends the trial court abused its discretion in overruling his hearsay objection.

In particular, he contends that by overruling his objection, the trial court allowed into evidence

impeachment testimony whether Sherman should retain custody of his daughter, when that was

not an issue in the case and was not a matter within the power of a CPS caseworker to decide, and

that the caseworker's testimony, "I would have some concerns," was highly prejudicial because it

mixed a civil "best interest" standard in child placement cases, with the "beyond a reasonable

doubt" standard required for a finding of guilt in a criminal case.

                                        Standard ofReview

       Relevant evidence is "evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the. action more probable or less probable than it would

be without the evidence." TEX.R.EVID. 401. Evidence need not by itself prove or disprove a

particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving

or disproving some fact of consequence. Kirsch v. State, 306 S.W.3d 738, 743 (Tex.Crim.App.

2010); Stewart v. State, 129 S. W.3d 93, 96 (Tex.Crim.App. 2004). Questions of relevance should

be left largely to the trial court, relying on its own observations and experience, and we will not

reverse absent an abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App.


                                                  5
1993); Sanders v. State, 255 S.W.3d 754, 758 (Tex.App. -Fort Worth 2008, pet. ref d); Levario v.

State, 964 S. W.2d 290, 297 (Tex.App. - El Paso 1997, no pet.). If the trial court's ruling is within

the "zone of reasonable disagreement," then there is no abuse of discretion, and the appellate court

must uphold the trial court's ruling. Sanders, 255 S.W.3d at 758.

                                Impeachment on a Collateral Matter

        Sherman's relevance objection was directed to whether evidence concerning the effect of

his statement on C.S.'s placement was "of consequence to the determination of the action[.]" His

objection thus implicated the general rule that a witness may not be contradicted or impeached as

to immaterial or collateral matters. Ramirez v. State, 802 S.W.2d 674, 675 (Tex.Crim.App.

1990); Rankin v. State, 41 S.W.3d 335, 343 (Tex.App. -Fort Worth 2001 , pet. ref d); TEx.R.EVID.

608(b). It has been said that the test whether a matter is collateral, for purposes of the rule that a

party is not entitled to impeach a witness on a collateral matter, is whether the cross-examining

party would be entitled to prove it as part of the case. Aguirre v. State, 948 S.W.2d 377, 381

(Tex.App. - Houston [14th Dist.] 1997, pet. refd) . Under this test, Garcia's opinion whether she

would allow C.S. to live with Sherman in light of his statement was a collateral matter, because it

was not related to or probative of an element of the State's case.

       But, a well-recognized exception to the rule barring impeachment on collateral matters

exists when a witness testifies gratuitously as to some matter that is irrelevant or collateral to the

proceeding.   In that instance, the witness may be impeached by evidence contradicting her

testimony showing she is in error as to that matter. Rankin, 41 S.W.3d at 343 n.17 (citing Cantu v.

State, 939 S.W.2d 627, 635 (Tex.Crim.App. 1997); Hammett v. State, 713 S.W.2d 102, 105

(Tex.Crim.App. 1986)); see Polk v. State, 170 S.W.3d 661 , 665 (Tex.App. - Fort Worth 2005, pet.


                                                  6
refd) (same); Altamirano v. State, No. 08-01-00235-CR, 2003 WL 1889947, at *7 (Tex.App. -El

Paso April 17, 2003, no pet.) ("Under this exception to Rule 608(b ), a witness may be impeached

by evidence contradicting her gratuitous and voluntary testimony on an irrelevant or collateral

matter."); see also Cantu, 939 S.W.2d at 635 (holding that the rule permitting cross-examination

on any matter relevant to credibility, allows for impeachment on a collateral matter when relevant

to a witness's credibility by contradicting witness's testimony); Tox.R.EVID. 613(b). The Court

of Criminal Appeals has instructed in this regard that: "Should the witness or the party tendering

him 'open the door,' however, by gratuitously raising the collateral matter, the opposing party may

impeach the witness on the matter so raised." Hammett, 713 S.W.2d at 106 n.4.

                                           Application

       In his direct examination of CPS caseworker Garcia, Sherman's cotmsel raised the issue of

the court's decision to place C.S . with Sherman and elicited evidence that caseworker Garcia took

part in the court-ordered mediation that resulted in that placement and that "[a]ll parties" agreed

that Sherman should have primary custody.           Sherman effectively opened the door to the

impeachment of Garcia on the collateral matters of primary custody and Garcia's agreement with

that custody by presenting testimony from which the jury could infer that CPS caseworker Garcia

took part in and agreed with the decision to place C.S. with Sherman. The State was thus allowed

to attempt to dispel any notion of Garcia's imprimatur to the placement by showing she would

have reservations to that placement in light of Sherman's statement. We conclude therefore that

because Sherman opened the door to impeachment on a collateral matter, the trial court did not

abuse its discretion in overruling Sherman's relevance objection and in allowing evidence that

Garcia "would have some concerns" over the placement in light of Sherman's written statement.


                                                7
Accordingly. Sherman ·s sole issue is overruled .

                                         CONCLUSION

       The trial court's judgment is affirmed.


                                              STEVEN L. HUGHES, Justice
April 30.2015

Before McClure, C.J., Rodriguez. and Hughes. JJ.

(Do Not Publish)




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