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                                 MEMORANDUM OPINION

                                         No. 04-07-00146-CR

                                           Arturo MATA,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                      From the 186th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2005-CR-4565-A
                               Honorable Teresa Herr, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: July 9, 2008

AFFIRMED

           A jury found defendant, Arturo Mata, guilty of murder, and assessed punishment at fifty

years’ confinement and a $10,000 fine. On appeal, defendant contends: (1) the evidence is legally

and factually insufficient to support his conviction; (2) the court erred when it allowed into evidence

a witness’s identification of defendant that was the product of an overly suggestive identification

process; (3) prosecutors injected themselves as fact witnesses while questioning witnesses; (4)

autopsy photographs admitted into evidence were unfairly prejudicial; (5) the court erred when it
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allowed into evidence the statement of a minor questioned by police; (6) the court improperly

admitted out-of-court statements into evidence in violation of the Confrontation Clause of the Sixth

Amendment; and (7) an improper jury charge amounted to a comment on the evidence. In an

opinion and judgment dated May 14, 2008, we affirmed the trial court’s judgment. We withdraw

our opinion and judgment of May 14, 2008 and issue this opinion and judgment in its place. We

affirm.

                                          BACKGROUND

          Beatrice Diaz was mortally wounded in front of her home during a drive-by shooting in San

Antonio, Texas, on March 3, 2005. The State alleged defendant drove the truck from which his

brother, Israel Mata, fired multiple shots at the house where Beatrice Diaz and her cousin, Hector

Reyes, were playing basketball. Diaz died in the hospital days later.

          Reyes, the likely target, was not injured. When police arrived at the scene of the shooting,

Reyes told police about a confrontation he initiated earlier in the day that he suspected led to the

shooting. Reyes and his fellow gang-members in a gang known as EBS had been harassing and

fighting rivals in the neighborhood. Two weeks prior to the shooting, Reyes had a physical

altercation with Joey Delfin. Delfin is the Matas’ nephew. Also, earlier on the afternoon of the

shooting, Reyes and his friends had chased Delfin, his cousin David Machuca, and two other boys

into a corner store.

          Testimony revealed Machuca used the store’s telephone to call his uncles, the Mata brothers,

who the State alleged belonged to a gang known as LC Mob. Reyes and his friends left the corner

store, and Israel and defendant picked up Machuca, Delfin, and the others at the store. Javier Tovar,

one of the boys with Machuca and Delfin, testified Israel drove them to an apartment on Avondale,



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left them there, then returned shortly afterward with a bag Tovar believed contained bullets. Tovar

testified Israel and defendant left again and returned an hour later.

        At the crime scene, Reyes told police the assailants attacked from a hunter green 1996 or

1997 Chevrolet truck. He told police he saw the driver in the cab and a shooter in the bed of the

truck, who concealed his face with the black bandana emblematic of the LC Mob while firing his

pistol toward Reyes and Diaz. Reyes said he ran around the side of the house while Diaz attempted

to run inside. Reyes could not identify the people in the truck because, as he said, he was too busy

trying to avoid the gunfire.

       Two witnesses nearby who heard gunfire identified defendant as the driver of the truck. Jose

Vasquez was having his tow truck repaired at a nearby shop when he heard gunshots and walked

toward the street to see a green Chevrolet truck speeding away from the scene and someone in the

back wearing a black bandana over his face. He told police the truck’s front license plate was

missing and something was hanging from the rearview mirror, details which matched the truck that

police would later connect to defendant. Vasquez identified defendant from a photo array five days

after the shooting, and again at trial. Another witness, Yvonne Rodriguez, heard the gunshots and

walked toward the back door of her kitchen to see the truck driving in the alley behind her home. She

testified she saw a driver, but did not see anyone in the back of the truck. Police never showed her

photographs by which to identify the driver, but she later identified defendant in photographs shown

to her by the district attorney’s investigator. She also identified defendant at trial.

       At the scene, Reyes told police he suspected Machuca’s involvement and told police

Machuca lived somewhere on Berkshire. A police officer went to Berkshire and asked a resident

if any “troublemakers” lived on the street. The resident pointed to 221 Berskhire. The officer did



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not find the suspect green truck, but ran the license plates of another vehicle parked in front of the

house. The officer learned the vehicle was associated with Israel through a speeding ticket. Also,

it was registered to Monica Baca at nearby 111 Maurine. At the Maurine address, officers

discovered the green Chevrolet truck hidden beneath a tarp, blankets, and a trampoline. The hood

was warm, indicating the truck was driven very recently. Police spotted a shell casing in the bed of

the truck, which technicians later matched to eight more casings found in the street in front of the

house where the shooting occurred. Vanessa Baca, approximately twelve years old, told police in

a recorded statement that defendant had been working at her house at 111 Maurine earlier that day

and that her mother, Monica, had given defendant the keys to the truck. Vanessa told police

defendant had asked for a tarp and blankets to cover the truck, and that she had helped him retrieve

the items, which defendant used to cover the truck. Police discovered defendant’s palm print on the

driver’s side door and Israel’s fingerprints on the top edge of the truck bed.

       Another witness, Michael Reyes, knew the Mata brothers through a friend. He testified he

arrived at the Avondale apartment on the day of the shooting to find Machuca and his companions

there. While he was there, he said the Mata brothers and their nephew, Gabriel Leal, arrived looking

worried or upset. After ordering everyone to leave, the Mata brothers and Leal left together in a

green truck. Later in the evening, Michael drove the Mata brothers and Leal to Port Aransas. He

testified he knew he was helping them to escape from authorities. He said Israel spoke of having

shot a girl in the head, and that defendant talked of having wiped down and concealing the truck.

                           LEGAL AND FACTUAL SUFFICIENCY

       In his first issue, defendant contends the evidence against him is legally insufficient because

the State failed to establish that he was present at or involved in the drive-by shooting. In his second



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issue, defendant contends the evidence is factually insufficient to support a finding that he

intentionally or knowingly participated in the drive-by shooting. We review the legal and factual

sufficiency of the evidence under the well-established standards of review. See Jackson v. Virginia,

443 U.S. 307, 319 (1979); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004); Roberts

v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). The jury, as trier of fact, is the sole judge

of the credibility of the witnesses and the weight to be given to their testimony; therefore,

reconciliation of any conflicts in the evidence is within the exclusive province of the jury. Mosley

v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). A jury is permitted to make reasonable

inferences from the evidence. Id. at 254-55.

        According to the indictment, defendant “did intentionally and knowingly cause the death of

an individual, namely Beatrice Diaz, by shooting Beatrice Diaz with a deadly weapon, namely a

firearm.” In addition, defendant, “with intent to cause serious bodily injury to an individual . . . did

commit an act clearly dangerous to human life that caused the death of Beatrice Diaz by shooting

at and in the direction of Beatrice Diaz with a deadly weapon, namely a firearm.” The State did not

allege defendant pulled the trigger but, instead, that he drove the truck while his brother fired the

handgun from the truck’s cargo bed. “A person is criminally responsible as a party to an offense if

the offense is committed by his own conduct, by the conduct of another for which he is criminally

responsible, or by both.” TEX . PENAL CODE Ann. § 7.01(a) (Vernon 2003). A person is criminally

responsible for the conduct of another if “acting with intent to promote or assist the commission of

the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the

offense . . . .” Id.




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        Two eyewitnesses identified defendant as the driver of the green truck in the minutes after

the shooting. One of those witnesses, Jose Vasquez, also described details of the truck, including

the item dangling from the rearview mirror and the missing front license plate. Vasquez also

testified he saw a man wearing a black bandana in the back of the truck, matching the account given

by Hector Reyes at the crime scene. The truck was connected to the crime scene by eyewitness

accounts and physical evidence, including the match of a spent shell casing in the bed of the truck

to those found in the street at the crime scene. Vanessa Baca testified defendant had the keys to the

truck, and had asked her to help him conceal the truck with a tarp and blankets. Defendant’s

fingerprints were found on the driver’s side door of the truck. Michael Reyes testified he heard

defendant tell his brother Israel that he had wiped the truck down and concealed it. He testified Israel

expressed concern over having shot a girl in the head. Reyes also testified he knew he was helping

the Matas escape.

        At trial, defendant cross-examined the witnesses and offered evidence contrary to the verdict.

However, it was for the jury to determine the credibility of the witnesses and the weight to give to

their testimony and the evidence adduced. We conclude the evidence was legally and factually

sufficient to sustain the conviction.

                               IDENTIFICATION PROCEDURE

        In his third issue, defendant complains the trial court erred when it admitted a witness’s

statements identifying defendant that were the result of an impermissibly suggestive photo array.

Defendant contends the array was so suggestive as to give rise to the very substantial likelihood of

mistaken identity in violation of his due process rights.




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       A pretrial identification procedure may be so unnecessarily suggestive and conducive to

mistaken identification that to use the identification at trial would deny the accused due process of

law. See Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988). When determining the

admissibility of an out-of-court identification that is challenged by a defendant, we engage in a

two-step analysis. Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995); Mayfield v. State,

152 S.W.3d 829, 831 (Tex. App.—Texarkana 2005, pet. ref’d). First, we consider whether the

defendant has presented evidence that the pretrial identification procedure was impermissibly

suggestive. Barley, 906 S.W.2d at 33; Mayfield, 152 S.W.3d at 831. Second, if the procedure was

impermissibly suggestive, we next determine whether the procedure gives rise to a very substantial

likelihood of irreparable misidentification. Barley, 906 S.W.2d at 33; Mayfield, 152 S.W.3d at 831.

       Javier Tovar was with the Matas’ nephews, David Machuca and Joey Delfin, when Israel

Mata picked them up from the corner store on the day of the murder. He testified he was dropped

off with the others at the apartment on Avondale. During questioning at the police station five

months after the murder, Tovar identified Israel Mata and defendant from separate photo arrays. In

the identification of defendant, police showed Tovar a photo array featuring six similar photos in two

rows of three. From the array, Tovar identified defendant as a person he had seen arrive at the

apartment and then leave with Israel.

       Defendant’s photo, situated at the top right, is slightly larger than four others, but smaller

than the photo directly beneath it. The backgrounds of the other photos are light blue, while

defendant’s background is gray. Such slight discrepancies, however, do not amount to an

impermissibly suggestive identification process. See Barley, 906 S.W.2d at 33. Additionally, the

officer who conducted the interview and identification procedure with Tovar testified he did not



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suggest a particular photo, nor did he suggest police had anyone pictured in the array in custody.

See Barley, 906 S.W.2d at 33.

       Here, there is no evidence the detectives made any suggestive statements to Tovar that would

have caused him to select defendant, or that the officers conducted the identification procedure in

a suggestive manner. We conclude the out-of-court identification procedures were not impermissibly

suggestive; therefore, we do not consider whether the procedures created a substantial likelihood of

misidentification that would deny defendant his right to due process.

                                 AUTOPSY PHOTOGRAPHS

       In his sixth issue, defendant complains the trial court erred when it admitted autopsy

photographs of the murder victim because he offered to stipulate to the cause of death and because

the photographs were more prejudicial than probative.

       The admissibility of a photograph is within the sound discretion of the trial judge. Paredes

v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004). Photographs provide powerful visual

evidence of the offense and the trial court does not abuse its discretion by admitting photographs of

the victim into evidence merely because they are gruesome. See Sonnier v. State, 913 S.W.2d 511,

519 (Tex. Crim. App. 1995); Vasquez v. State, 2 S.W.3d 355, 360 (Tex. App.—San Antonio 1999,

pet. ref’d). Although autopsy photographs are gruesome, they depict the reality of the brutal crime

committed. See Paredes, 129 S.W.3d at 540.

       The State offered the autopsy photographs as an aid to the medical examiner’s testimony

regarding the “mechanism of injury.” Defendant offered to stipulate to the cause of death, but over

his objection, the court admitted six color photographs of Diaz’s body taken during the autopsy. The

Court of Criminal Appeals has determined an offer to stipulate to the cause of death does not



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preclude the admission of the photographs, nor does it render them less probative. See Marshall v.

State, 210 S.W.3d 618, 629-30 (Tex. Crim. App. 2006) (holding admissible autopsy photographs

over defendant’s offer to stipulate to means of death as point-blank, penetrating gunshot wound to

victim’s head); Newbury v. State, 135 S.W.3d 22, 41-44 (Tex. Crim. App. 2004) (holding admissible

autopsy photographs over defendant’s offer to stipulate to homicide and gunshot wounds as manner

and means of death); Jones v. State, 843 S.W.2d 487, 500 (Tex. Crim. App. 1992), partially

abrogated on other grounds by Maxwell v. State, 48 S.W.3d 196 (Tex. Crim. App. 2001) (holding

admissible six photographs of charred remains of victim at scene and at medical examiner’s office,

including close-up depiction of seventeen stab-wounds to neck, despite offer to stipulate to cause

and manner of death).

       We next consider whether the autopsy photographs should have been excluded under Texas

Rule of Evidence 403 on the grounds that their probative value was substantially outweighed by the

danger of unfair prejudice. See TEX . R. EVID . 403. Rule 403 favors the admission of relevant

evidence and carries a presumption that relevant evidence will be more probative than prejudicial.

Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). In assessing the prejudicial effect

of photographs, courts may consider the number of photographs offered; their gruesomeness, detail,

and size; whether they are in color; whether they are taken close-up; whether the person in the

photograph is clothed; and any other factors unique to the situation. Id.; Long v. State, 823 S.W.2d

259, 270 (Tex. Crim. App. 1991). Photographs generally are admissible if verbal testimony about

the matters depicted in the photograph is also admissible. See Paredes, 129 S.W.3d at 539;

Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999). This is because visual evidence




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accompanying testimony is persuasive and gives the fact finder a means by which to understand the

witness’s conclusions. Id.

       Defendant complains the probative value of the six color photographs was diminished, and

the prejudicial effect heightened, because the photos depict damage to Diaz’s body that was caused

during the autopsy. “The main concern [is] that the jury might attribute certain injuries caused by

the autopsy to the appellant, which would be unfairly prejudicial to the appellant’s case.” Salazar

v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001). However, where the medical examiner

explains the content of the photographs, there is no danger that the jury will mistakenly attribute the

work of a surgeon or medical examiner to the defendant. See id.; Hobday v. State, No. 04-05-00812-

CR, 2007 WL 56273, at *2 (Tex. App.—San Antonio Jan. 10, 2007, pet. dism’d.) (mem. op., not

designated for publication). Here, Bexar County Medical Examiner Jean Rulon, M.D., explained

the contents of each photograph as it was projected onto a screen for the jury’s view. The photos

depict mutilation to the body other than that caused by the gunshot wound, which defendant contends

should have precluded their admission. However, Dr. Rulon distinguished for the jury the damage

caused by the fatal gunshot from the marks that indicated life-saving attempts and the autopsy itself;

thus, here was no risk of confusion.

       Defendant also contends the photos were prejudicial due to the age of the victim. However,

in Gallo v. State, the Court of Criminal Appeals concluded a trial court did not err in admitting

twenty-three color autopsy photographs of a three-year-old murder victim. Gallo v. State, 239

S.W.3d 757, 763-64 (Tex. Crim. App. 2007). Also, in Prible v. State, the Court held admissible

photos of the burned bodies of three girls: two seven-year-olds and a twenty-two-month-old. Prible




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v. State, 174 S.W.3d 724, 727 (Tex. Crim. App. 2005). Here, the victim was thirteen years old. We

cannot conclude her age alone rendered the photos prejudicial.

       Based on the foregoing, we conclude the trial court did not abuse its discretion in admitting

the photographs.

                                TESTIMONIAL STATEMENT

       In his tenth issue, defendant complains the court erred when it admitted the testimony of

Michael Reyes regarding statements made to him by Israel Mata. Defendant complains Israel’s

statements implicating defendant were testimonial in nature and, therefore, admitting the statements

into evidence violated his Sixth Amendment right to confront the witnesses against him and to cross-

examine him.

       Reyes testified that he drove Israel, defendant, and the Matas’ half-brother, Gabriel Leal, to

Port Aransas in the hours following the murder. When the State asked Reyes to tell the jury what

Israel said, defendant objected on the basis that Israel’s statements introduced by Reyes would

violate defendant’s right to confront the witness (Israel) against him. The trial court overruled the

objection, and Reyes testified he overheard Israel say he had shot a girl in the head. Reyes then

testified to defendant’s statements in the conversation, including defendant’s statements regarding

concealing the truck and wiping it for fingerprint evidence. Defendant offered no objection to the

admission of his own statements to Reyes.

       “Testimonial statements of witnesses absent from trial [may be] admitted only where the

declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”

Crawford v. Washington, 541 U.S. 36, 59 (2004). To illustrate its reasoning, the Crawford Court

offered examples of testimonial statements: ex parte testimony at a preliminary hearing, testimony



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before a grand jury, testimony at a former trial, and statements derived from police interrogations.

Id. at 68. Statements “made under circumstances which would lead an objective witness reasonably

to believe that the statement would be available for use at a later trial” could be considered

testimonial. Id. at 52. By contrast, the Court reasoned, a casual remark to an acquaintance does not

constitute a testimonial statement implicating Sixth Amendment concerns. Id. at 52; Woods v. State,

152 S.W.3d 105, 114 (Tex. Crim. App. 2004). We review the question of whether a statement is

testimonial or non-testimonial de novo. Wall v. State, 184 S.W.3d 730, 734 (Tex. Crim. App. 2006).

         Nothing about Israel’s statements to the other passengers resembles testimony as described

in Crawford. Israel’s comment to his brother or others in the car that he had shot a girl in the head

was not “made under circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.” Crawford, 541 U.S. at 52. Israel’s and

defendant’s conversation much more closely resembled “casual remarks to an acquaintance” than

a “formal statement to government officers.” Id. at 58; Gongora v. State, 214 S.W.3d 58, 62 (Tex.

App.—Fort Worth 2006, pet ref’d). Because Israel’s statement was not testimonial in nature, the

trial court did not err in overruling defendant’s objection to Reyes’ testimony.

                                     VANESSA BACA’S TESTIMONY

         On appeal, defendant raises several complaints about the testimony of Vanessa Baca. In his

fourth issue, defendant asserts the prosecutor injected himself as a witness when examining twelve-

year-old Vanessa Baca.1 In his seventh issue, defendant asserts the court erred when it allowed the

State to call Vanessa as a State’s witness because the State called her solely to introduce her prior



         1
          In his fifth issue, defendant also complains the prosecutor injected herself as a witness when examining Javier
Tovar. Because defendant offered no objection during the State’s examination of Tovar, this issue was not preserved for
our review. See T EX . R. A PP . P. 33.1(a).

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recorded statement to the police “under the subterfuge of impeachment when the statement was not

a prior inconsistent statement” and Vanessa’s prior statement was not properly introduced as a prior

inconsistent statement. In his eighth issue, defendant contends Vanessa’s recorded statement should

not have been admitted because she was a minor when she gave her recorded statement and her

statement was obtained in violation of the Texas Family Code. See TEX . FAM . CODE § 52.02(b)

(Vernon 2002). Finally, in his ninth issue, defendant contends the court erred when it failed to

instruct the jury on the inadmissibility of Vanessa’s allegedly illegally obtained statement. See TEX .

CODE CRIM . PROC. ANN . art. 38.23 (Vernon 2005).

       At trial, defendant raised only two objections to the State’s examination of Vanessa. First,

each time Vanessa responded that she did not remember, the prosecutor referred to her prior recorded

statement. Finally, the following occurred:

       Q.      [Defendant] was looking for blankets to cover the truck. I got him blankets.
               Did you say that back on March 3rd?
       A.      I don’t remember.
       Q.      You don’t remember. I got him blankets. [Defendant] told me not to go
               outside. He told us to go inside. Someone called my sister to stay inside.
               And Monica, my sister, told us to stay inside. And you were there with a
               bunch of young kids. You were there with Monica - -

       Defense counsel: Objection to the testimony and ask it be phrased as a question.

       Prosecutor: I’ll withdraw and I’ll try to clarify.

       Q.      Do you remember saying all that to the police officer?
       A.      No.

Although defendant objected to the prosecutor’s “testimony,” the trial court did not rule on the

objection because the State immediately acceded to the defendant’s request that the prosecutor

rephrase the questions. See TEX . R. APP . P. 33.1(a)(2) (objection is preserved when complaint is

made to the court and the court rules or refuses to rule on the objection and complaining party


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objects to refusal). Accordingly, no error is shown on this record; therefore, defendant’s fourth

issue is overruled.

       The second objection arose when the prosecutor attempted to admit Vanessa’s prior

recorded statement, which was contained on a CD, into evidence. Defense counsel objected as

follows:

              With all the “I don’t remembers,” the proper course of action, if it were a
       written document, would be to present it to her and say, Does it refresh your
       memory? Because it’s not and it’s not admitted into evidence. The only way it can
       be used to refresh the witness’s memory is to play it to the witness out of the
       presence of the jury. If she was denying it, it might be admissible.

       In his seventh issue on appeal, defendant complains the State improperly called Vanessa

solely to introduce her prior statement to the police “under the subterfuge of impeachment when the

statement was not a prior inconsistent statement,” and that Vanessa’s prior recorded statement was

not properly introduced as a prior inconsistent statement.

       A party may impeach a witness with her prior inconsistent statement if the party first presents

the witness with the existence of the statement; describes the details and circumstances surrounding

the statement; and gives the witness the opportunity to explain or deny the statement. TEX . R. EVID .

613(a). If the admission is partial, qualified, or otherwise equivocal, or if the witness disclaims any

memory of making the statement, the prior statement is admissible for impeachment. McGary v.

State, 750 S.W.2d 782, 786 & n.3 (Tex. Crim. App. 1988); Ruth v. State, 167 S.W.3d 560, 566 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d).

       At trial, when the State asked Vanessa questions regarding statements she gave to the police,

she repeatedly responded “I don’t remember.” The State showed her the CD and reminded her that

her statement had been recorded, who interviewed her, and what she told the police on the recording.



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She admitted that her previous statement was contained on the CD, but she disclaimed memory of

her statement. The trial court examined a transcript of the CD and ordered the CD played for the

jury. The court explained: “It is being offered into evidence or – technically not, because it’s for

impeachment purposes . . . .” On this record we cannot conclude the trial court abused its discretion

in admitting the CD for impeachment purposes. Accordingly, defendant’s seventh issue is overruled.

        As to defendant’s eighth issue regarding Vanessa’s recorded statement allegedly having been

obtained in violation of the Texas Family Code, this complaint was not raised before the trial court;

therefore, it is not preserved for our review. See TEX . R. APP . P. 33.1(a). In defendant’s ninth issue,

based on his complaint that Vanessa’s statement was obtained in violation of the Family Code, he

asserts the court erred when it failed to instruct the jury on the inadmissibility of Vanessa’s allegedly

illegally obtained statement. See TEX . CODE CRIM . PROC. Ann. art. 38.23 (Vernon 2005). Article

38.23 provides that “[i]n any case where the legal evidence raises an issue hereunder, the jury shall

be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation

of the provisions of this Article, then and in such event, the jury shall disregard any such evidence

so obtained.” Id. Family Code section 52.02(b) requires any “person taking a child into custody [to]

promptly give notice of the person’s action and a statement of the reason for taking the child into

custody, to: (1) the child’s parent, guardian, or custodian; and (2) the office or official designated

by the juvenile board.” TEX . FAM . CODE. ANN . § 52.02(b). Defendant contends he was entitled to

an article 38.23 instruction because the notice required under the Family Code was never given.

However, a defendant is entitled to a jury instruction under article 38.23 only if the trial evidence

creates a factual dispute about how the evidence was obtained, i.e., whether it was obtained illegally.

Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004); Bell v. State, 938 S.W.2d 35, 48 (Tex.



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Crim. App. 1996). Here, no evidence was adduced at trial on whether the State notified Vanessa’s

mother or the juvenile board; thus, the issue of whether her statement was illegally obtained was

never raised. Accordingly, on appeal, defendant has not shown he was entitled to an article 38.23

instruction.

                                          JURY CHARGE

       In his eleventh and final issue, defendant complains the court erred by allowing an improper

jury charge on impeachment evidence regarding Vanessa’s testimony. Specifically, defendant

complains the following language in the charge constituted an improper comment on the evidence:

“Therefore, you are instructed that the testimony of the witness Vanessa Baca regarding her

inconsistent statements, if any, was admitted for the purpose of impeaching Vanessa Baca, if you

find that it does impeach her, and you cannot consider said impeachment testimony as any evidence

whatever of the guilt of the defendant.” Defendant contends the charge describes Vanessa’s

statements as “‘testimony’ when said statements were not testimony. Therefore, the charge was a

comment on the evidence and assumed facts not in evidence.” As already noted, defendant has

argued the State called Vanessa “under the subterfuge of impeachment.” When the trial court

admitted Vanessa’s prior recorded statement into evidence, the court acknowledged the statement

was for impeachment purposes. “When evidence which is admissible . . . for one purpose but not

admissible . . . for another purpose is admitted, the court, upon request, shall restrict the evidence

to its proper scope and instruct the jury accordingly . . . .” See TEX . R. EVID. 105(a). Therefore,

although defendant did not request the instruction, we conclude the trial court did not err in including

a limiting instruction in the jury charge.




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                                       CONCLUSION

       We overrule defendant’s issues on appeal and affirm the trial court’s judgment.



                                                     Sandee Bryan Marion, Justice



Do not publish




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