






Jose Antonio Bautista v. State
















IN THE
TENTH COURT OF APPEALS
 

No. 10-00-226-CR

     JOSE ANTONIO BAUTISTA,
                                                                         Appellant
     v.

     THE STATE OF TEXAS,
                                                                         Appellee
 

From the 351st District Court
Harris County, Texas
Trial Court # 819792
                                                                                                                
                                                                                                         
DISSENTING OPINION
                                                                                                                

      Evidence of prior inconsistent statements of a witness who has testified may be offered to
impeach that witness's credibility.  Tex. R. Evid. 613(a); See Flores v. State, 48 S.W.3d 397, 404
(Tex. App.—Waco 2001, pet. ref’d) (citing Ramirez v. State, 987 S.W.2d 938, 944 (Tex.
App.—Austin 1999, no pet.)).  When the prior statement is not offered as primary evidence but
to impeach the witness’ credibility, it is not hearsay.  See Flores, 48 S.W.3d at 404.  Thus, the
admissibility of a prior inconsistent statements to impeach does not depend upon an exception to
hearsay.  See id.
      However, as a predicate, Rule 613 directs that before a witness may be impeached she must
be informed of the statement's content, the time and place at which it was made, and the person
to whom it was uttered.  Id.; Tex. R. Evid. 613(a).  If the witness unequivocally admits having
made the statement, extrinsic evidence of the statement may not be admitted.  Id.
      Acosta testified for the State.  Guiterrez testified for the defense about other matters.  When
she was asked about the Acosta’s prior statements, the State objected on the basis of hearsay. 
Because counsel did not urge admissibility under Rule 613(a), the objection was properly
sustained.
  Later, in the context of counsel’s proffer of the substance of Guiterrez’ testimony, the
context made it apparent that the statements were prior inconsistent statements.  Although it is
questionable whether the court ruled again, only replying “all right,” a ruling continuing to deny
admissibility was correct because the Rule 613(a) predicate had not been laid.  See Osteen v. State,
No. 10-00-014-CR 2002 WL 1176372 at *1 (Tex. App.—Waco October 3, 2001, no pet. h.). 
Thus, I agree that Bautista’s first issue should be overruled.
      His second issue, however, has merit.  Bautista testified that the sex was consensual.  Acosta’s
credibility was subject to impeachment because she had made statements to Guiterrez denying that
a rape occurred and that her sex with Bautista was voluntary and consensual.  Thus, on the issue
of consent, a direct conflict in the testimony existed between Bautista and Acosta.  Under the first
Strickland prong, when counsel failed to inform the court that the impeaching statements were
being offered under Rule 613(a) and when he failed to lay the predicate for admission of those
prior inconsistent statements, his performance was deficient.  Hernandez v. State, 726 S.W.2d 53,
57 (Tex. Crim. App. 1986) (adopting the standard of Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984)).  I can conceive of no strategic reason for failing to advance
the best defense available to Bautista.  Turning to the second prong—that he must show a
reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding
would have been different—the result is evident.  See Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999). Considering that “a reasonable probability is a probability sufficient to
undermine confidence in the outcome,” one can easily imagine that, given the absence of any other
direct evidence on the question of consent, a jury might have reached a different decision had it
heard Acosta’s prior inconsistent statements that impeached Acosta’s testimony about the events. 
See id.
      I agree with majority’s the “failure to testify” discussion.
      Because counsel was ineffective when he failed to get Acosta’s prior inconsistent statements
before the jury—statements that might have cast doubt on her credibility and pierced the heart of
an element of the offense—I would reverse the judgment and remand the cause for a new trial. 
Because the majority does otherwise, I respectfully dissent.
 
                                                                       BILL VANCE
                                                                       Justice

Dissenting opinion delivered and filed February 6, 2002
Publish
