             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00339-CR
     ___________________________

    HENRY RODRIGUEZ, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 362nd District Court
          Denton County, Texas
       Trial Court No. F16-930-362


  Before Pittman, Bassel, and Womack, JJ.
  Memorandum Opinion by Justice Bassel
                           MEMORANDUM OPINION

                                   I. Introduction

       A jury convicted Rodriguez of continuous sexual abuse of a child. The trial

court assessed his punishment at forty-eight years’ incarceration in the Texas

Department of Criminal Justice.

       Rodriguez raises two issues on appeal. First, he claims that the trial court

deprived him of a public trial by excluding from the courtroom several individuals

who had disrupted the trial. We conclude that the trial court acted properly and that

its findings adequately document why it took the action that it did.

       Second, Rodriguez claims that the trial court erred by admitting evidence that

impeached his testimony on a collateral matter. Even if the matter were collateral to

the merits, Rodriguez opened the door to being impeached by lying gratuitously on

direct examination.

       We overrule the two issues raised by Rodriguez and affirm the judgment of the

trial court.1




       1
        Because Rodriguez does not challenge the sufficiency of the evidence, we omit
a factual background.


                                           2
II. Issue No. 1—Rodriguez claims that the trial court deprived him of a public
                                   trial.

       A. The trial court dealt with a disruption by Rodriquez’s supporters in
       the gallery by excluding them from the courtroom.

       The trial court had to deal with the fraught environment of a courtroom in

which the child sexual-abuse Complainant and her family and Rodriguez’s family and

his supporters were present. The emotions of that setting presented the trial court

with a number of challenges. At points during the trial, Rodriguez’s supporters made

gestures that distracted the jury and the trial court.      The bailiff admonished an

individual who was making gestures and enlisted Rodriguez’s counsel’s help in

admonishing Rodriguez’s family and friends to behave appropriately. The trial court

was compelled to admonish Rodriguez’s mother in open court after she had

continued to disrupt the trial.

       The trial continued, and the jury found Rodriguez guilty. He then elected to

have the trial court assess punishment. The jury was excused, and a recess was taken.

At this point, according to the trial court’s findings, the following occurred:

       The victim and her mother remained on one side of the courtroom while
       the defendant’s friends and family remained on the other side of the
       courtroom. A few members of the defendant’s friends and family
       turned and made threats and derogatory statements to the victim and her
       mother. My bailiff immediately walked between the two groups to keep
       them separated. He then instructed the two to four people that were
       making the threats and derogatory statements that they had to leave the
       courtroom. At least three or four friends and family of the defendant,
       including the defendant’s mother, remained in the courtroom for the
       remainder of the trial.


                                            3
When the recess ended, the trial court clarified that it was excluding only those who

were “making the disruption and making the derogatory comments to the child

victim.” The members of Rodriguez’s family who were not disruptive were permitted

to remain in the courtroom. Neither the courtroom nor any proceeding was closed to

the public at large. The trial court took its action to prevent further distractions, to

protect Complainant and her family from threats and derogatory remarks, and to

maintain order. The trial court took the step of excluding disruptive individuals from

the courtroom only after its admonitions and those it enlisted Rodriguez’s counsel to

make had failed.

         B. Standard of review for a claimed deprivation of the right to a public
         trial

         The Texas Court of Criminal Appeals has detailed the standard that we must

apply to a question of whether a trial court acted properly in closing a defendant’s

trial:

         [A]s a general rule, the appellate courts, including this Court, should
         afford almost total deference to a trial court’s determination of the
         historical facts that the record supports especially when the trial court’s
         fact finding[s] are based on an evaluation of credibility and demeanor.
         The appellate courts, including this Court, should afford the same
         amount of deference to trial courts’ rulings on “applications of law to
         fact questions,” also known as “mixed questions of law and fact,” if the
         ultimate resolution of those questions turns on an evaluation of
         credibility and demeanor. The appellate courts may review [de novo]
         “mixed questions of law and fact” not falling within this category.

Cameron v. State, 490 S.W.3d 57, 69–70 (Tex. Crim. App. 2016) (op. on reh’g) (quoting

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

                                             4
       C. Applicable Law

              1.   The right to a public trial is a fundamental constitutional
                   protection.

       The court of criminal appeals succinctly described the source of the right to a

public trial, the harm that results from the deprivation of that right, and the purposes

that a public trial serve as follows:

       The Sixth Amendment of the United States Constitution guarantees an
       accused the right to a public trial in all criminal prosecutions. And the
       Supreme Court has held that the violation of a criminal defendant’s Sixth
       Amendment right to a public trial is structural error that does not require
       a showing of harm. Moreover, the Court has held that the right to a
       public trial was created for the benefit of the accused; thus, the right is a
       personal one. The public-trial guarantee benefits the accused by acting
       as “an effective restraint on possible abuse of judicial power.” It has
       also been found that “judges, lawyers, witnesses, and jurors will perform
       their respective functions more responsibly in an open court than in
       secret proceedings.”

Lilly v. State, 365 S.W.3d 321, 328 (Tex. Crim. App. 2012) (citations omitted).

              2. The standard for rebutting the presumption that a trial should
              be conducted openly

       “The right to a public trial is not absolute and may be outweighed by other

competing rights or interests, such as interests in security, preventing disclosure of

non-public information, or ensuring that a defendant receives a fair trial.” Id. It is,

however, a rare occasion that warrants depriving a defendant of his right to a public

trial, and the United States Supreme Court has established the general standards that

must be met to overcome the presumption that a trial should be open:



                                            5
      [(1)] the party seeking to close the hearing must advance an overriding
      interest that is likely to be prejudiced, [(2)] the closure must be no
      broader than necessary to protect that interest, [(3)] the trial court must
      consider reasonable alternatives to closing the proceeding, and [(4)] it
      must make findings adequate to support the closure.

Id. at 329 (citing and quoting Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216

(1984)).

      D. Analysis

             1. Rodriguez bears the burden of proof to show that his trial was
             closed to the public, but the record conclusively establishes that it
             was partially closed.

      The logical first question to the claim that the defendant was deprived of a

public trial is whether the trial was actually closed. A defendant bears the burden of

proof to establish that a trial was closed to the public. Cameron, 490 S.W.3d at 68.

Here, there is no question that the exclusion of certain spectators closed Rodriguez’s

trial. Even the exclusion of only a limited number of people constitutes a partial

closure of the courtroom that may violate a defendant’s right to a public trial. Woods

v. State, 383 S.W.3d 775, 781 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); see

also Turner v. State, 413 S.W.3d 442, 449 (Tex. App.—Fort Worth 2012, no pet.) (“The

exclusion of even a single person from court proceedings can violate a person’s Sixth

Amendment right to a public trial.”) (citing Presley v. Georgia, 558 U.S. 209, 212, 130 S.

Ct. 721, 723 (2010)).




                                            6
                2. The trial court’s findings adequately describe why the trial
                court partially closed Rodriguez’s trial.

          We will follow the analytical path adopted by the Texas Court of Criminal

Appeals and first examine the fourth of the four factors that determine if a trial was

properly closed—whether the trial court entered findings that adequately explain its

actions. See Lilly, 365 S.W.3d at 329. The findings are the lynchpin of the analysis.

See id.

          The findings must be on the record and must be specific. Id. Generic findings

are insufficient because they lack the detail that we as a reviewing court need to

determine “whether the closure order was properly entered.” Id. (citing Presley, 558

U.S. at 215, 130 S. Ct. at 725). “Proper findings will identify the overriding interest

and how that interest would be prejudiced, why the closure was no broader than

necessary to protect that interest, and why no reasonable alternatives to closing the

proceeding existed.” Id.; Turner, 413 S.W.3d at 449–50 (holding that trial court’s

findings were inadequate because “nothing in the record shows that the trial court’s

ruling met the requirements of Waller” when “the trial court did not state an

overriding interest other than space concerns, did not consider reasonable alternatives

that might have accommodated appellant’s family members, and did not make




                                            7
adequate findings to support its decision to exclude appellant’s family members”

(footnote omitted)). 2

       We attach the findings entered by the trial court as an appendix to this

opinion.3 These findings contain the required level of detail. We will explain below

why the findings demonstrate that the trial court properly excluded a limited number

of disruptive individuals from Rodriguez’s trial.

              3. The trial court’s findings establish substantial reasons for the
              trial court’s actions.

       A partial closure that results from excluding particular individuals—and not the

entire public—from the courtroom appears to lower the hurdle that a trial court must

clear to justify the closure, with the standard falling from an overriding or compelling

reason to a substantial reason. See Woods, 383 S.W.3d at 782. The rationale for the

lesser standard is that “partial closures do not raise the same constitutional concerns

as total closures because an audience remains to ensure the fairness of the

proceedings and [to] preserve the safeguards of public trials.” Id.; see also Cameron, 490

S.W.3d at 68 (“Some courts have applied a less stringent test for ‘partial’ or ‘trivial’


       2
        The trial court stated on the record its reasons for excluding individuals from
the trial. After this appeal was perfected, the State filed a motion to abate the appeal
to give the trial court an opportunity to enter more specific findings. We granted the
abatement. The additional findings were filed in a supplemental clerk’s record.
       3
         We have redacted the findings, as well as the portions of the record attached
to the findings as exhibits, to remove the name of the disruptive member of the
gallery.


                                            8
closures[] where members of the public are temporarily excluded from the courtroom.

These courts require only a ‘substantial’ or ‘important’ interest rather than Waller’s

‘compelling’ reason for limiting access in order to justify a closure, in part because a

less-than-complete closure does not ‘implicate the same secrecy and fairness concerns

that a total closure does.’” (citation omitted) (quoting Garcia v. Bertsch, 470 F.3d 748,

753 (8th Cir. 2006))); see also United States v. Cervantes, 706 F.3d 603, 611–12 (5th Cir.

2013) (“Partial closure of a courtroom during a criminal proceeding is a constitutional

question reviewed de novo, and the Court will affirm so long as the lower court had a

‘substantial reason’ for partially closing a proceeding.”) (citing United States v. Osborne,

68 F.3d 94, 98–99 (5th Cir. 1995)).

       The trial court’s power to control the orderliness of trial proceedings is

unquestionably a substantial reason for a partial closure. At the most elementary level,

a trial judge has the power to keep order in his courtroom, lest the very purpose of a

trial be jeopardized:

       “The right to a public trial ‘has always been interpreted as being subject
       to the trial judge’s power to keep order in the courtroom. Were this not
       so a public trial might mean no trial at all at the option of the defendant
       and his sympathizers.’”

Cosentino v. Kelly, 926 F. Supp. 391, 393 (S.D.N.Y. 1996) (quoting United States v.

Hernandez, 608 F.2d 741, 747 (9th Cir. 1979)). 4


       4
         Because Rodriguez’s first issue involves the constitutional right to a public
trial, we include citations to relevant federal cases.


                                             9
       Various matters impacting the conduct of a trial justify the exclusion of

specified individuals from the courtroom, such as protecting the jury from improper

influences, protecting a witness from retaliation or emotional harm, and preserving

order in the courtroom. Cameron, 490 S.W.3d at 68 (“For example, . . . courts have

held that partial closures are permissible to exclude certain spectators when it is

deemed necessary to preserve order in the courtroom.”) (citing Cosentino v. Kelly, 102

F.3d 71, 73 (2d Cir. 1996)); see also Tex. Code Jud. Conduct, Canon 3B(3), reprinted in

Tex. Gov’t Code Ann., tit. 2, subtit. G, app. B (“A judge shall require order and

decorum in proceedings before the judge.”); Woods, 383 S.W.3d at 782 (“Each of

those circuit courts [the Second Circuit, the Fifth Circuit, the Eighth Circuit, the

Ninth Circuit, the 10th Circuit, and the Eleventh Circuit] held that the need to protect

a witness from retaliation or emotional harm justified temporarily excluding a specific

person or group from the courtroom during that witness’s testimony.”); Johnson v.

State, 137 S.W.3d 777, 779 (Tex. App.—Waco 2004, pet. ref’d) (holding that the trial

court was acting to preserve an overriding interest to protect the jury from improper

influences when the trial court excluded the defendant’s aunt from the courtroom

after her actions had already threatened to improperly influence the jury).

      Here, the trial court’s findings invoke all three of these reasons for its actions:

      The exclusion was necessary to conduct [a] fair trial for the defendant
      wherein the jury could concentrate on the evidence presented.
      Throughout the trial, several jurors had complained that the behavior of
      certain members of the defendant’s family and friends [was] distracting
      them from the testimony. Additionally, the exclusion was necessary to

                                           10
      protect the child victim and her family from threats and derogatory
      comments. The bailiff had to step in to . . . remove the two to four
      people that continued making threats and derogatory comments.
      Finally, the exclusion was necessary to maintain order for a criminal jury
      trial.

This finding demonstrates that the trial court had abundant substantial reasons to

exclude disruptive spectators from the trial.

               4. The trial court’s actions were narrowly tailored to address the
               reasons why it was compelled to partially close the trial.

      The trial court’s actions targeted only those who were disrupting the

proceedings:

      The only people [who] were excluded from the courtroom were the two
      to four individuals [who] were causing the disruption by making threats
      and derogatory comments to the victim and her mother. All other
      members of the public previously listed, including the defendant’s
      mother and other family and friends[,] remained in the courtroom.

Rodriguez offers no explanation of how the trial court could have more narrowly

tailored its actions, and we can think of none. See Cosentino, 926 F. Supp. at 396

(holding that trial court narrowly tailored its actions by excluding only those whom it

had admonished for disruptive behavior but who had failed to heed the admonition).

               5. The trial court sensibly considered and rejected alternatives to
               the action of excluding from the courtroom those who were
               disrupting the trial.

      Because of the importance of affording a defendant an open trial, the trial

court’s findings must demonstrate that the trial court actually considered reasonable

alternatives before even partially closing the trial. Lilly, 365 S.W.3d at 329 (“Proper


                                           11
findings will identify . . . why no reasonable alternatives to closing the proceeding

existed.”) (citing Presley, 558 U.S. at 215–16, 130 S. Ct. at 725). The standard requires

that the trial court have a basis to “sensibly reject” the alternatives available to it.

Steadman v. State, 360 S.W.3d 499, 509 (Tex. Crim. App. 2012) (“That a trial court can

reasonably discount some alternatives, however, does not insulate it from Presley’s

mandate that it be able to sensibly reject ‘all reasonable alternatives’ before it can

exclude the public from voir dire proceedings.” (quoting Presley, 558 U.S. at 216, 130

S. Ct. at 725)); Harrison v. State, No. 02-10-00432-CR, 2012 WL 1034918, at *12 (Tex.

App.—Fort Worth Mar. 29, 2012, no pet.) (per curiam) (mem. op., not designated for

publication) (“Even if the trial court had sufficiently documented facts to reasonably

discount Harrison’s first proffered alternative to closure, this did ‘not insulate it from

Presley’s mandate that it be able to sensibly reject [“]all reasonable alternatives[”] before

it [could] exclude the public from voir dire proceedings.’” (quoting Steadman, 360

S.W.3d at 509)).

       The trial court’s findings document the alternative steps that the trial court

took before excluding the disruptive individuals from the courtroom:

       The court had previously used less restrictive means by admonishing
       these individuals several times about their inappropriate behavior.
       Unfortunately, these less restrictive measures were not sufficient to stop
       them from distracting the jury and disrupting the proceedings.
       Therefore, excluding only these specific individuals from the courtroom
       was necessary and the least restrictive means to proceed with an orderly
       trial.



                                             12
Thus, the trial court gave the disruptive individuals an alternative to the possibility of

exclusion—to reasonably comport themselves while in the courtroom. And the trial

court limited the exclusion to only those individuals who had refused to follow this

alternative. See Cosentino, 926 F. Supp. at 398 (holding that trial court adequately

considered alternative to exclusion of spectators when trial court admonished gallery

not to disrupt proceeding, disruption occurred in spite of admonition, and trial court

excluded from second trial only those who had created the disruption).

      The findings also demonstrate that the trial court considered the extreme step

of holding in contempt those who were disrupting the trial: “It’s very rare that I

exclude anyone from the courtroom, but the other option is to have them . . . held in

contempt and put them in jail, in which, once again, they would not be in the

courtroom anyway.”

      In the face of these findings, Rodriguez attacks the trial court for not being

thorough enough in its consideration of alternatives.5 Rodriguez criticized the trial

court for not considering the following actions:

      [T]he record is devoid of any attempt by the trial court to consider all
      reasonable alternatives to closing the proceeding. The trial court could
      have excluded only those persons who had made the derogatory
      statements or were disruptive. The court could have issued further
      admonishments[] or ma[d]e a contempt finding and lev[ied] a fine as
      punishment. If the court was concerned for the well-being of

      5
       We recognize that the trial court’s findings were filed after Rodriguez filed his
brief. But Rodriguez was present during the trial when the trial court limited the
exclusion to only those individuals who were disrupting the proceedings. Moreover,
Rodriguez chose not to file a supplemental brief after the trial court filed its findings.

                                           13
      [Complainant], then the court could also have excluded those spectators
      during her future testimony[] or requested more bailiffs to attend the
      trial in order to ensure compliance. The record, however, is bereft of
      any such considerations. The court’s order to exclude all of Appellant’s
      friends and family was overly broad and [is] not supported by the record.

The alternatives that Rodriguez raises in his brief were either implemented by the trial

court or were ones that the trial court could have sensibly rejected.

      We will detail why Rodriguez’s criticisms are invalid:

   • The trial court took the limited actions that Rodriguez says that it should have

      taken—excluding only those who were disruptive;

   • The trial court stated that it had admonished the disruptive individuals several

      times—without effect—and that “these less restrictive measures were not

      sufficient to stop them from distracting the jury.” This demonstrates that the

      trial court had considered the possibility of whether additional admonitions

      would be effective and had concluded that they would not;

   • The trial court considered and rejected the issuance of contempt findings, and

      we leave it to the trial judge to decide whether contempt would have produced

      compliance by those who were being disruptive and to balance the disruption

      that the contempt process would have created in the conduct of the trial

      against the more straightforward solution of excluding those who had refused

      to comply with the trial court’s admonitions;




                                           14
   • The trial court had the discretion to decide if additional bailiffs were available

      and to balance the use of resources by placing more bailiffs in the courtroom

      and turning the courtroom into an armed camp against the impairment of the

      defendant’s right to a public trial that came from excluding only those who had

      refused to follow the court’s admonitions;

   • The trial court was concerned not only that the spectators might disrupt

      Complainant’s testimony but also that the persons disrupting the proceeding

      had actually threatened both Complainant and her mother, and Rodriguez

      offers no explanation for how excluding the persons making the threats during

      Complainant’s testimony would have ameliorated the concern raised by the threats.

The findings demonstrate that the trial court considered and even implemented the

alternatives raised by Rodriguez. And the standard of acting sensibly, though strict,

should not be one that requires the trial court to anticipate and inventory every

theoretical solution that a defendant might conceive on appeal and then justify the

rejection of the solutions that were never put before the trial court. See, e.g., Bell v.

Jarvis, 236 F.3d 149, 169–70 (4th Cir. 2000) (“In this case, the closure under

consideration extended only to the testimony of a single witness for her protection,

and it would be utterly pointless to require the trial judge to conjure up alternative

methods of protecting the witness only to reject his own proposals. Obviously, the

trial judge is not in a superior position to suggest alternatives [that] may be more



                                           15
acceptable to the defendant and his counsel.”). The findings demonstrate that the

trial court acted sensibly.

       The trial court took a measured step to maintain control of the courtroom and

the proceeding.        See Tex. Code Jud. Conduct, Canon 3B(3).          The findings

documenting why the trial court took this action show both its justification and the

trial court’s careful consideration of the factors that must underlay the decision to

partially close a trial.

  III. Issue No. 2—Rodriguez claims that the trial court permitted improper
                    impeachment on a collateral matter.

       Rodriguez testified that the allegations against him were revenge for

Complainant’s mother’s belief that he had attempted to arrange a romantic liaison

with an ex-girlfriend. In response to questions to him on direct, he denied that

attempt.     He persisted in his denial on cross-examination, though he admitted

conduct that put him in a more negative light than he would have been in by

admitting that he had planned the romantic liaison. A trial court should not usually

permit impeachment on collateral matters, i.e., those that are not probative of guilt or

innocence. See generally Ramirez v. State, 802 S.W.2d 674, 675 (Tex. Crim. App. 1990).

But when a defendant lies gratuitously on a collateral matter, the defendant opens the

door to impeachment. See Cantu v. State, 939 S.W.2d 627, 635 (Tex. Crim. App. 1997).

Here, Rodriguez’s lie was both volunteered and gratuitous; the trial court did not




                                          16
abuse its discretion in permitting the State to impeach him with proof that he was

lying. 6

           A. After Rodriguez volunteered a gratuitous lie that he did not try to
           arrange a romantic liaison with an ex-girlfriend, the trial court permitted
           the State to show texts that Rodriguez had sent to his ex-girlfriend that
           contradicted his testimony.

           Rodriguez chose to testify on his own behalf at trial. A defensive theory relied

on by Rodriguez was that Complainant was coached by her mother to make

accusations against him in revenge because Complainant’s mother was a woman

scorned by Rodriguez’s attentions to another woman. He offered the incident as an

explanation for why Complainant made allegations of abuse against him, saying that

she was “trying to get [him] out of the picture” and that Complainant was mad

because he was fighting with Complainant’s mother.

           Rodriguez’s contact with his ex-girlfriend came to Complainant’s mother’s

attention when she saw a text message on his phone with the ex-girlfriend; that

resulted in a physical altercation when he would not let Complainant’s mother see

other messages that had been exchanged. During direct examination by his counsel,

Rodriguez portrayed himself as having rebuffed advances by his ex-girlfriend. He

reiterated that denial when asked about his ex-girlfriend on cross-examination. And


        We test the trial court’s decision to admit testimony under an abuse-of-
           6

discretion standard. See Sherman v. State, No. 08-13-00105-CR, 2015 WL 1962815, at
*3–4 (Tex. App.—El Paso Apr. 30, 2015, pet. ref’d) (not designated for publication)
(testing trial court’s decision to allow impeachment on collateral matter under an
abuse-of-discretion standard).

                                              17
when asked whether he had sent texts to his ex-girlfriend that had indicated he had

tried to meet her, he denied the existence of such texts. Though Rodriguez eventually

acknowledged that he had sex with another woman while involved with the

Complainant’s mother, he continued to deny that he had done so with his ex-

girlfriend. None of the questions asked on cross-examination drew an objection from

his counsel.

      Though Rodriguez denied that he had planned a romantic liaison with his ex-

girlfriend, he admitted on cross-examination that he had sent a nude picture of

himself to other women while dating Complainant’s mother. He freely admitted that

he had accessed porn sites on his phone almost daily and, on many occasions, several

times a day. He tried to turn this activity to his advantage, arguing that the porn sites

on his phone demonstrated that he had not accessed child pornography. None of

these questions drew an objection from his counsel.

      Rodriguez’s counsel’s objection came when the State proffered witnesses who

had examined Rodriguez’s phone and could establish that he had planned to meet his

ex-girlfriend and that the messages demonstrated the sexual nature of the rendezvous.

The objections asserted that the testimony involved improper impeachment. The trial

court overruled Rodriguez’s objections and admitted the testimony.

      During his closing argument, Rodriguez’s counsel admitted that Rodriguez had

lied. His counsel could not explain why Rodriguez did so. But as with Rodriguez’s

explanation of his porn viewing, his counsel tried to turn this conduct to his

                                           18
advantage, arguing that Rodriguez might be a liar and an adulterer but that his

conduct demonstrated that he was not a pedophile.

       B. Even if it involved a collateral matter, Rodriguez’s act of volunteering
       a gratuitous lie opened the door for the State to offer proof, nailing the
       door shut on the lie.

       Rodriguez argues that testimony showing what messages actually passed

between him and his ex-girlfriend was improperly admitted. He argues that the Texas

Court of Criminal Appeals’s opinion in Shipman v. State prohibited this topic on cross-

examination because it involved a collateral matter. 604 S.W.2d 182, 183–84 (Tex.

Crim. App. [Panel Op.] 1980). Shipman’s rule prohibits impeachment on collateral

matters to prevent distraction and time-wasting of trials within a trial on whether a

matter that involves issues not relevant to the guilt or innocence of the accused is true

or untrue. 1 Steven Goode et al., Texas Practice Series: Guide to the Texas Rules of Evidence

§ 607.3 (2019 ed.).

       But the rule is subject to an exception when a party gratuitously opens the door

on a collateral matter:

       [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 [v. State], 41 S.W.3d
       [335,] 343 n.17 [(Tex. App.—Fort Worth 2001, pet. ref’d)] (citing Cantu[,
       939 S.W.2d at 635]; 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. ref’d) (same); Altamirano v. State, No. 08-01-00235-CR,
       2003 WL 1889947, at *7 (Tex. App.—El Paso [Apr.] 17, 2003, no pet.)
       [(not designated for publication)] (“Under this exception to [r]ule 608(b),

                                             19
      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); Tex. R. Evid. 613(b).
      The [Texas] 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.

Sherman, 2015 WL 1962815, at *4.7

      Rodriguez’s misrepresentations about his planned liaison with his ex-girlfriend

were not directly probative of guilt and thus were collateral. But Rodriguez opened

the door by volunteering untruthful information, and the State simply accepted his

invitation to demonstrate the statement’s untruth. The back and forth began when

Rodriguez misrepresented the nature of his contacts with his ex-girlfriend. He made

this representation even though his counsel had already described the incident in his

opening statement as one involving infidelity. Rodriguez held to his lie even though

he had admitted to conduct that was as, if not more, salacious than trying to arrange a

romantic liaison with his ex-girlfriend. The best indication of the gratuitous nature of

      7
        Federal courts describe the opening-the-door theory as the “specific[-]
contradiction doctrine.” See Montoya v. Shelden, 898 F. Supp. 2d 1279, 1293 (D.N.M.
2012) (“The rule precluding the ‘admission of extrinsic evidence of specific instances
of conduct of the witness when offered for the purpose of attacking credibility . . .
does not apply, however, when extrinsic evidence is used to show that a statement
made by a defendant on direct examination is false, even if the statement is about a
collateral issue.’” (quoting United States v. Fleming, 19 F.3d 1325, 1331 (10th Cir.
1994))).


                                          20
the lie was his counsel’s admission during closing argument that he was unable to

explain why Rodriguez would lie about this contact. Whatever the reason for his

inept attempt at deception, its commission was both voluntary and gratuitous. His

persistence in the unneeded lie put his credibility in issue, and the trial court did not

abuse its discretion by allowing the State to put truth to the lie that Rodriguez had not

attempted to arrange a romantic liaison with his ex-girlfriend.

                                   IV. Conclusion

      We overrule Rodriguez’s two issues and affirm the judgment of the trial court.

                                                      /s/ Dabney Bassel

                                                      Dabney Bassel
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: June 13, 2019




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