                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-12-00099-CR
                          ____________________

                    RONALD JASON DEGAY, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee
_______________________________________________________         ______________

                   On Appeal from the 128th District Court
                          Orange County, Texas
                        Trial Cause No. A-110541-R
________________________________________________________         _____________

                         MEMORANDUM OPINION

      A jury found Ronald Jason Degay guilty of felony possession of a controlled

substance. See Tex. Health & Safety Code Ann. § 481.115 (West 2010). In his sole

issue on appeal, Degay challenges the trial court’s admission of an out-of-court

witness statement that the State attributed to Degay’s father, James Degay. The

written statement admitted during Degay’s trial states that James owned the truck

that Degay was driving when he was stopped, James was not aware there were

drugs in the truck, James loaned Degay the truck so that Degay could look for a

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job, James did not drive the truck, and that Degay was the only person who drove

it. According to Degay, the statement should not have been attributed to James

because James’s wife wrote it and James did not sign it. Because there was

evidence from which the jury could reasonably conclude that James adopted the

written statement as his own, we conclude the trial court did not abuse its

discretion by admitting the statement into evidence. We overrule Degay’s sole

issue and affirm the trial court’s judgment.

        After being stopped for committing a traffic violation, the police searched

the truck Degay was driving and found a prescription bottle that contained cocaine

behind the driver’s door panel. James owned the truck and came to the scene to

pick it up. At the scene, James told the police that Degay drove the truck all the

time.

        Later that same evening, Sergeant Laughlin, a police officer employed by

the Orange police department, went to James’s house to obtain his statement.

According to Sergeant Laughlin, after discussing with James whether Degay or

others regularly drove James’s truck, he requested that James give him a written

statement. James asked his wife, Margie Degay, to write out his oral statement and

handed her a clipboard and a pen.




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      In his motion to suppress, Degay argued that the statement written by

Margie could not be attributed to James. The trial court conducted a pre-trial

hearing on Degay’s motion to suppress. “In reviewing a trial court's ruling on a

motion to suppress, appellate courts must view all of the evidence in the light most

favorable to the trial court’s ruling.” State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008). “When the trial court does not make explicit findings of

fact, the appellate court infers the necessary factual findings that support the trial

court’s ruling if the record evidence (viewed in light most favorable to the ruling)

supports these implied fact findings.” Id. “When a trial court makes explicit fact

findings, the appellate court determines whether the evidence (viewed in the light

most favorable to the trial court’s ruling) supports these fact findings.” State v.

Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court’s

determinations of historical facts and mixed questions of law and fact rely on

determinations that involve the credibility of the witnesses, the trial court’s

decision on such motions, when supported by the record, is given almost total

deference; otherwise, the trial court’s decision is reviewed using a de novo

standard. See State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013)

(citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). Because the




                                          3
trial court’s resolution relied on its determinations of credibility, the trial court’s

decision is given almost total deference.

      Two witnesses, James and Margie, testified during the suppression hearing.

Margie explained that she wrote the statement and signed James’s name on it.

According to Margie, the police officer “told me basically what to write[.]”

Although Margie stated that James could have signed his name to the statement,

she testified that she wrote the statement at his request and that the officer then told

her to sign it. James testified that he did not write the statement or sign it, but he

agreed that he was present when it was being written. When asked was there

anything in the statement that was not true, James answered: “I -- everything pretty

much seem -- I really don’t remember. It seemed pretty much of what’s on here.”

James subsequently testified that he and Margie agreed with the statement “except

for the part where [Degay] was the only one driving[.]”

      At the conclusion of the suppression hearing, the trial court denied Degay’s

motion to suppress. On appeal, Degay argues that the trial court abused its

discretion by admitting the statement to impeach James’s testimony during trial

because James had not written or signed the statement at issue. See Tex. R. Evid.

613(a) (addressing the examination of a witness about a prior inconsistent

statement). Alternatively, Degay argues that the probative value of the statement

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was substantially outweighed by the danger of unfair prejudice; he concludes that

the trial court’s admission of the statement at issue affected his substantial rights.

See Tex. R. Evid. 403.

      We review a trial court’s decision to admit or exclude evidence under an

abuse of discretion standard. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim.

App. 2008). “If the trial court’s decision to admit evidence is within the zone of

reasonable disagreement, the trial court has not abused its discretion, and we must

defer to that decision.” Lund v. State, 366 S.W.3d 848, 852 (Tex. App.—

Texarkana 2012, pet. ref’d). The credibility of a witness may be attacked by any

party, and Rule 613(a) of the Texas Rules of Evidence permits a party to impeach a

witness with a prior inconsistent statement. See Tex. R. Evid. 607, 613(a).

      Under Rule 613(a), a prior statement must be inconsistent with the testimony

the witness gives at trial. Lopez v. State, 86 S.W.3d 228, 230-31 (Tex. Crim. App.

2002). The proper predicate for impeachment by a prior inconsistent statement

requires that the witness first be asked if he made the contradictory statement at a

certain place and time and to a certain person. Tex. R. Evid. 613(a). If the witness

denies having made the inconsistent statement, the prior inconsistent statement

becomes admissible. McGary v. State, 750 S.W.2d 782, 786 (Tex. Crim. App.

1988).

                                          5
      Evidence admissible as impeachment under Rule 613(a) may be excluded

under Rule 403 if its probative value is substantially outweighed by its prejudicial

effect. See Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007).

“The rule gives the trial court considerable latitude to assess the courtroom

dynamics, to judge the tone and tenor of the witness’ testimony and its impact

upon the jury, and to conduct the necessary balancing.” Id. However, a trial court

should not allow a party to use a “straw-man ploy to get impeachment evidence

before the jury as substantive evidence.” Miranda v. State, 813 S.W.2d 724, 735

(Tex. App.—San Antonio 1991, pet. ref’d). When a party objects to the admission

of evidence and asks the trial court to weigh the probative value against the

potential for unfair prejudice, “[c]ourts should balance the probative value of

admitting the prior inconsistent statement for its legitimate impeachment purpose

against the danger of unfair prejudice created by the jury misusing the statement

for substantive purposes.” Id.

      Degay never objected to the admissibility of the written statement on the

ground that its probative value was substantially outweighed by the danger of

unfair prejudice, nor did he request the trial court to weigh the probative value of

the statement against any danger of prejudice. Instead, Degay objected that the

statement could not be attributed to James and that admitting it would be

                                         6
prejudicial. Degay’s trial objection did not fairly apprise the trial court that he

wanted the trial court to weigh the probative value of the evidence against the

danger that it might be unfairly prejudicial, and he did not obtain a ruling from the

trial court addressing whether the statement’s probative value outweighed the

danger that it might be unfairly prejudicial. Because Degay’s Rule 403 argument

was not properly preserved and the trial court never ruled on it, we do not consider

it on appeal. See Tex. R. App. P. 33.1 (preserving error for appellate review

requires the complaining party to show that he presented his complaint to the trial

court in a timely request, objection, or motion and that the trial court ruled on the

request).

      Nevertheless, because Degay’s brief includes an argument that the statement

at issue was not admissible as James’s prior inconsistent statement, we address his

claim that the statement was inadmissible under Rule 613 of the Texas Rules of

Evidence. Degay’s argument that relates to Rule 613 was presented to the trial

court in a motion to suppress and renewed when he objected to the introduction of

the statement at issue during trial on the basis that it was a statement that should

not be attributed to James. The trial court ruled on the motion and the objection,

and allowed the State to present the written statement to the jury.




                                          7
      The evidence regarding the statement at issue provided the trial court a basis

to admit it under Rule 613. First, there was evidence from which the jury could

conclude that James adopted the statement. The jury could reasonably conclude

that James asked Margie to write down what he said and that he then authorized

Margie to sign his name to the statement, as she signed his name in his presence.

Second, the statement is inconsistent with James’s trial testimony about whether

persons other than Degay had driven the truck. At trial, when the prosecutor asked

James if he told Sergeant Laughlin that Degay was the only person who drove the

truck, James testified that he “did not.” The written statement admitted into

evidence states that James represented on the night that Degay was stopped that

Degay was the only person who drove the truck. The admission of James’s prior

inconsistent statement is relevant because from the inconsistent statement the jury

could have decided that James was not a credible witness. See Hernandez v. State,

273 S.W.3d 685, 689 (Tex. Crim. App. 2008). Third, when the statement was

admitted, James had been advised of the contents of the statement, was aware that

the statement being discussed was a statement created during his interview at his

home on the evening that Degay was stopped, and James was provided an

opportunity to explain or deny that he made the statement.




                                         8
      Having carefully reviewed the evidence before the trial court, the trial court

properly concluded that there was conflicting evidence on whether James adopted

the statement written by Margie as his own and allowed the conflicts in the

testimony regarding the statement to be resolved by the jury. Based on our

conclusion that the trial court did not abuse its discretion by admitting the

statement at issue, we affirm the trial court’s judgment.

      AFFIRMED.



                                              ___________________________
                                                     HOLLIS HORTON
                                                          Justice


Submitted on August 30, 2013
Opinion Delivered February 12, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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