            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-502-06



                       NICHOLAS GEORGE KLEIN, Appellant

                                              v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE SECOND COURT OF APPEALS
                           DENTON COUNTY

      C OCHRAN, J., filed a dissenting opinion in which P RICE, W OMACK and
J OHNSON, JJ., joined.

                                       OPINION

       I join Judge Price’s concurring and dissenting opinion. I write separately only to

emphasize that no one in this case accused the complainant of fabricating her

testimony–either recently or long ago. The defendant’s position was that the prosecutor

confused the child with his questions and that she therefore inadvertently said that appellant

had molested her when she meant to say that he had not. Nowhere in this record does
                                                              Klein     Dissenting opinion    Page 2

appellant accuse the child of lying on the witness stand or making up her testimony. He did

not either implicitly or explicitly accuse her of improper motives in her testimony. His

position was that the prosecutor “tricked” the child into accidentally misstating the facts

during one series of his questions.       Therefore, the prior out-of-court statements that she

made to a CPS investigator and a police investigator could not possibly qualify as statements

offered to rebut an explicit or implicit charge of recent fabrication by the complainant.

       Rule 801(e)(1)(B) allows a party to rehabilitate a witness who, on cross-examination,

has been accused–subtly or directly–of recently fabricating or changing his testimony for

some improper reason.1 In essence, the opposing party is accusing the witness of lying and

of recently making up that lie. When this occurs, the sponsoring party may rehabilitate the

witness by offering out-of-court statements that are consistent with that witness’s in-court

testimony and that were made before the witness had a motive to change his testimony. The

rehabilitation evidence shows that the witness has said the same thing, sung the same tune,

both before and after the alleged improper influence or motive arose. Thus, goes the logic,

the purported improper influence or motive (such as a bribe, offer of a “deal” to a co-

defendant, a pending civil lawsuit, and so forth), did not, in fact, change the witness’s

testimony. The witness has consistently said the same thing, regardless of any bribe, plea



       1
         Rule 801(e)(1)(B) reads:
        A statement is not hearsay if. . . [t]he declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the statement is . . . consistent with
the declarant’s testimony and is offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive.” TEX . R. EVID . 801(e)(1)(B).
                                                          Klein    Dissenting opinion   Page 3

deal, civil lawsuit, etc.

       Appellant’s position in this case is not that the child was improperly influenced with

a bribe, or threatened, or promised something if she testified in a certain way. It is that the

prosecutor confused her with his questions on the witness stand. That position does not

attack the witness; it attacks the cross-examiner.

Filed: October 1, 2008

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