                                                                                  PD-1483-15
                           PD-1483-15                            COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                               Transmitted 11/16/2015 8:39:18 AM
                                                                Accepted 11/17/2015 11:18:38 AM
                                                                                  ABEL ACOSTA
                                                                                          CLERK



               NO. ___________________
                IN THE
  COURT OF CRIMINAL APPEALS OF TEXAS

   VIVIAN MONROE HOLMAN
                                   Appellant
                                      v.

                STATE OF TEXAS
                                   Appellee



       APPELLANT’S PETITION
     FOR DISCRETIONARY REVIEW
    Petition from the 54th Judicial District Court of McLennan County, Texas
                       Trial Court Number 2012-17-C2 and
         Number 10-15-00015-CR in the Tenth Court of Appeals of Texas

                       LAW OFFICE OF STAN SCHWIEGER
                         600 Austin Avenue, Suite 12
                                  P.O. Box 975
                           Waco, Texas 76703-0975
                                 (254) 752-5678
                          (254) 752-7792—Facsimile
                       E-mail: wacocrimatty@yahoo.com
                            State Bar No. 17880500


November 17, 2015
                        NAMES OF THE PARTIES TO THE FINAL JUDGMENT

                                                                              STATE OF TEXAS

                                                   Ms. Hilary LaBorde
                                                 Ms. Gabrielle A. Massey
                                              Mr. Andrew Erwin (appeal only)
                                      McLennan County Criminal District Attorney’s Office
                                               219 North 6th Street, Suite 200
                                                    Waco, Texas 76701

                                                         APPELLANT’S TRIAL COUNSEL

                                                                 Mr. Lawrence E. Johnson
                                                             801 Washington Avenue, Suite 400
                                                                   Waco, Texas 76701

                                                                         TRIAL COURT JUDGE

                                                                The Honorable Matt Johnson
                                                                  54th District Court Judge
                                                                McLennan County Courthouse
                                                                     Waco, Texas 76701




Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                     Page i
                                                                       TABLE OF CONTENTS

NAMES OF ALL PARTIES TO THE FINAL JUDGMENT. . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . v

GROUND FOR REVIEW .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
   The Tenth Court of Appeals erred in holding that the rule of optional
   completeness allowed the admission of a forensic interview video, putting
   it in conflict with other courts of appeal and in holding that this rule gives
   carte blanche to the State to respond with matters not responsive to
   the”invitation,” placing it in conflict with this Court.

GROUND FOR REVIEW RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

                A.              Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

                B.              Factual Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

                C.              The Tenth Court's dual holdings behind the admission of the forensic
                                interview are error... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

                D.              Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4

APPENDIX
Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                                                      Page ii
                                                                   INDEX OF AUTHORITIES

                                                                              FEDERAL CASES

Edward Valves, Inc. v. Cameron Iron Works, Inc.,
      286 F.2d 933 (5th Cir. 1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Perkins v. Ramsey,
       18 U.S. 269 (1820).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. LeFevour,
       798 F.2d 977 (7th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

                                                                               STATE CASES

Bradley v. State,
       235 S.W.3d 808 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . 8, 11

Cooper v. Bower,
       96 P. 794 (Kan. 1908). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Goldberg v. State,
       95 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). . . . . . . . . 8

Holman v. State,
      No. 10-15-00015-CR, 2015 WL. 6444749 (Tex. App.—Waco Oct. 22, 2015,
      no pet. h.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 8

Sauceda v. State,
       129 S.W.3d 116 (Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Boyd,
        143 S.W.3d 36 (Mo. Ct. App. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Willover v. State,
       70 S.W.3d 841 (Tex. Crim. App. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                                     Page iii
                                       STATE RULES
Tex. R. App. P. 66.3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Tex. R. App. P. 66.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

                                                                              MISCELLANEOUS

Francis A. Gilligan & Edward J. Imwinkelried,
      Bringing the "Opening the Door" Theory to a Close: the Tendency to Overlook the Specific
      Contradiction Doctrine in Evidence Law, 41 Santa Clara L. Rev. 807 (2001). . . . . . 8




Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                                    Page iv
                                    STATEMENT REGARDING ORAL ARGUMENT

                Appellant Vivian Holman respectfully requests that this appeal not be

presented on oral argument. The issue arises out of settled case law and can

adequately addressed by briefing.

                                                STATEMENT OF THE CASE
                                           STATEMENT OF PROCEDURAL HISTORY

                The State of Texas indicted Ms. Holman in number 2012-17-C2, in the 54th

District Court of McLennan County as set forth in the chart below:

              Aggravated                                       “did then and there intentionally or knowingly cause the
  1           Sexual Assault                                   penetration of the sexual organ of [S.A.], a child who was
              of a Child                                       at the time then and there younger than fourteen (14)
                                                               years of age, and not the spouse of the Defendant, by
                                                               means of Defendant’s finger . . .”1
  2           Indecency with                                   “did then and there, with the intent to arouse or gratify
              a Child                                          the sexual desire of any person, intentionally or
                                                               knowingly engage in sexual contact with [S.A.] by
                                                               touching the genitals of [S.A.], a child younger than
                                                               seventeen (17) years of age, and not the spouse of the
                                                               Defendant, by means of the Defendant’s hand. . .”2




                1
                                (I C.R. at 6).
                2
                                (I C.R. at 6).

Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                                            Page v
  3           Indecency with                                   “did then and there, with the intent to arouse or gratify
              a Child                                          the sexual desire of any person, intentionally or
                                                               knowingly engage in sexual contact with [S.A.] by
                                                               touching the genitals of [S.A.], a child younger than
                                                               seventeen (17) years of age, and not the spouse of the
                                                               Defendant, by means of the Defendant’s hand. . .”3

Trial began on January 5, 2015 in the 54th Judicial District Court with the

Honorable Judge Matt Johnson, presiding. After a trial to the jury, Ms. Holman

was found guilty of the indicted offenses.4 Ms. Holman elected the jury for

punishment, which imposed sixty (60) year sentence on Count I, twenty (20) year

sentence on count II and twenty (20) year sentence on Count III, to run

concurrently on each count.5 Notice of Appeal was timely filed by Ms. Holman on

January 13, 2015.6 The trial court certified Ms. Holman’s right to appeal on

January 8, 2015.7 The Tenth Court of Appeals affirmed the judgment below.8




                3
                                (I C.R. at 6).
                4
                                (4 R.R. 189S91).
                5
                                (I C.R. at 103S33).
                6
                                (I C.R. at 135).
                7
                                (I C.R. at 134).
                8
               Holman v. State, No. 10-15-00015-CR, 2015 WL 6444749, *2 & n.2 (Tex. App.—Waco
Oct. 22, 2015, no pet. h.) (mem. op., not designated for publication) (internal citations omitted).

Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                                           Page vi
                                                                      GROUND FOR REVIEW

                The Tenth Court of Appeals erred in holding that the rule of optional
                completeness allowed the admission of a forensic interview video, and
                in holding that this rule gives carte blanche to the State to respond
                with matters not responsive to the “invitation.”




Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review               Page vii
GROUND FOR REVIEW RESTATED:
    The Tenth Court of Appeals erred in holding that the rule of optional
    completeness allowed the admission of a forensic interview video,
    putting it in conflict with other courts of appeal and in holding that
    this rule gives carte blanche to the State to respond with matters not
    responsive to the”invitation,” placing it in conflict with this Court.

                Holman . . . suggested that the victim would try to draw [the forensic
                examiner’s] attention away from the question asked so that she would
                not have to answer the question. Thus, it was necessary to show these
                instances in the context of the entire interview.


                Further, Holman did not request any limitation on the video’s
                admissibility. A party opposing evidence has the burden of objecting
                and requesting a limiting instruction at the time the evidence is
                admitted as to any portion of the evidence that is objectionable for
                another reason or admissible only for a limited purpose. Without a
                request for a limiting instruction, it was admitted for all purposes.9

                Painting with a patio broom when the precision of a pinpoint brush was

required, the Tenth Court blotched the law surrounding the rule of optional

completeness beyond comprehension. This requires review of this Court.




                9
               Holman v. State, No. 10-15-00015-CR, 2015 WL 6444749, *2 & n.2 (Tex. App.—Waco
Oct. 22, 2015, no pet. h.) (mem. op., not designated for publication) (internal citations omitted).

Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                    Page 1
                A.              Re as o n s fo r re v ie w .

                This Court should grant review because the Tenth Court of Appeals’ decision

conflicts with another court of appeals’ decision on the same issue.10 In addition,

the court of appeals has decided an important question of state law in a way that

conflicts with the applicable decisions of the Court of Criminal Appeals.11

                B.              Fac tu al b ac kg ro u n d .

                Because the memorandum opinion does not contain a factual background

concerning the erroneous admission of the purported evidence of “optional

completeness,” a short basis follows. During the trial for aggravated sexual assault,

defense counsel was cross-examining a Child Advocacy Center employee who

interviewed the complaining witness:

                DEFENDANT: Did, um, your interview begin with, uh, maybe an
                           indication that sometimes the child would tell lies?
                           Do you remember that part of the interview?

                WITNESS:                                         Oh, when we were talking about did she
                                                                 understand the difference between a truth and a lie?

                DEFENDANT: Yeah. But do you remember her telling you – did
                           she tell you that she lies a lot sometimes?



                10
                                TEX. R. APP. P. 66.3(a).
                11
                                TEX. R. APP. P. 66.3(c).

Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                                             Page 2
                WITNESS:                                         Uh, no. I believe she gave me an example, um, of a
                                                                 lie, um, that when she got into some makeup she
                                                                 wasn’t supposed to and didn’t say so at first or
                                                                 something like that.

                DEFENDANT: Okay. But she mentioned the fact that occasionally
                           she tells lies; is that right?

                WITNESS:                                         I’m not recalling that. I do recall the example of
                                                                 her, um, messing with some makeup that she
                                                                 wasn’t supposed to and that she didn’t tell the truth
                                                                 about it when they were asking her.12


                DEFENDANT: Okay. Did, uh, you find that a child’s language --
                           sometimes a child may see things, uh, in an
                           exaggerated manner?

                WITNESS:                                         I’m sure any of that’s possible. I don’t remember
                                                                 that from this scenario.

                DEFENDANT: Okay. Like, for instance, uh, if you take a ball,
                           what you may see is maybe -- or I might see it as a
                           medium-sized ball. The child may see it as a big ball
                           or something to that effect; is that right?

                WITNESS:                                         Sure, they may.

                DEFENDANT: Okay. So, the language can be somewhat different
                           depending on the individual that’s speaking; is that
                           right?

                WITNESS:                                         Yes. uh-huh.

                12
                                (4 R.R. at 50S51).

Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                                              Page 3
                DEFENDANT: Okay. So there can be different interpretations
                           also; is that correct?

                WITNESS:                                         I’m sure that’s possible, depending on the scenario.
                                                                 Yes. uh-huh.13


                STATE:                                           Um, I mean, would the best way for this jury to
                                                                 know what [S.A.] said and whether or not she was
                                                                 manipulating you, exaggerating, making things
                                                                 bigger than they were, misunderstanding things,
                                                                 misconstruing things, would that be to review the
                                                                 video just like you did?

                WITNESS:                                         Uh-huh.

                DEFENDANT: Your Honor, I’m gonna object to that line of
                           questioning. I’m going to object to attempting --

                COURT:                                           What’s your --

                DEFENDANT: -- attempting to offer some hearsay into evidence.
                           That’s not admissible.

                STATE:                                           Your Honor, I just asked if that would be the best
                                                                 representation of questions that this -- the defense
                                                                 attorney’s been leaving a false impression with this
                                                                 jury that [S.A.] exaggerated things, made a small
                                                                 ball, a big ball, made this story a lot bigger,
                                                                 misunderstood the contact between this defendant
                                                                 and the child, and the best representation. I’m just
                                                                 simply asking [the interviewer] if the best



                13
                                (4 R.R. at 56S57).

Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                                             Page 4
                                                                 representation of what she said and what she meant
                                                                 is the video that she recorded back in 2007.

                WITNESS:                                         Um, I mean, I think watching the video is the best
                                                                 way to see how the interview went, clearly, as that
                                                                 is the interview. But I think in the interview you
                                                                 will see that the child brings up the scenario and
                                                                 the words are the child’s, um –

                STATE:                                           May I approach the witness, Your Honor?

                THE COURT:                                       Yes, you may.

                STATE:                                           I’m now showing you what’s been marked as
                                                                 State’s Exhibit Number 6. Do you recognize, um,
                                                                 this DVD?

                WITNESS:                                         Yes.

                STATE:                                           And, um, is this written what is this DVD of?

                WITNESS:                                         This is, um, the DVD of the interview itself on the
                                                                 day we did it.

                STATE                                            And what day was the day you did that?

                WITNESS:                                         July 26th, 2007.

                STATE:                                           And is this your handwriting on this DVD?

                WITNESS:                                         Yes, ma’am.

                STATE:                                           And have you reviewed this DVD prior to coming
                                                                 in here and testifying today?



Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                                            Page 5
                WITNESS:                                         Yes, ma’am.

                STATE:                                           And is this a true and accurate copy of the DVD
                                                                 made at the time of the interview on July 26th of
                                                                 2007?

                WITNESS:                                         Yes, ma’am.

                STATE:                                           At this time the State offers State’s Exhibit 6 to
                                                                 defense counsel and also offers it into evidence.

                (State’s Exhibit Number 6 offered.)

                DEFENDANT: Your Honor, we object to hearsay. Not admissible.
                           And ask the Court not to offer that into evidence
                           and allow that to be admitted.

                THE COURT:                                       Any response?

                STATE:                                           Yes, Your Honor. The State would respond by
                                                                 saying that there’s a rule of optional completeness.
                                                                 The defense has left a, uh, false impression with the
                                                                 jury, that she lied a lot or something. she stated --
                                                                 the defense stated that the child said in the video, I
                                                                 lied a lot, I occasionally tell lies, and he has left a
                                                                 false impression with this jury as to what the
                                                                 context of this video was. And also under the Rule
                                                                 of Optional completeness, because he’s brought in
                                                                 specific instances from the video, the jury should
                                                                 be able to -- out of context, the jury should be able
                                                                 to put them into context.

                DEFENDANT: Your Honor, I’m also objecting that using the
                           Crawford right of confrontation. Your Honor,
                           they put a witness on that testified that she


Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                                                Page 6
                                                                 interviewed. I only questioned her concerning the
                                                                 interview in which she stated here. Uh, I don’t
                                                                 understand how that allows, uh, something that’s
                                                                 not admissible to be admitted.

                STATE:                                           Your Honor, the defense counsel has been
                                                                 misrepresenting the context of the interview
                                                                 regarding the lies, regarding exaggeration, regarding
                                                                 manipulation. That’s all come from the defense
                                                                 counsel, um, and he’s leaving a false impression
                                                                 with this jury as to the context of the totality of
                                                                 this interview that this child made back in 2007.

                THE COURT:                                       Then, let’s see, State’s Exhibit Number 6 is
                                                                 admitted.

                The Tenth Court of Appeals found that the full forensic interview was

admissible despite no part of the video was shown by defense counsel. Instead, the

questions above raised a “false impression,” which allowed the State to respond

with the full video.14

                C.              Th e Te n th Co u rt’s d u al h o ld in g s b e h in d th e ad m is s io n o f th e
                                fo re n s ic in te rv ie w are e rro r.

                The purpose of the “completeness” rule is merely to make sure that a

misleading impression created by taking matters out of context is corrected on the

spot, because of “the inadequacy of repair work when delayed to a point later in the



                14
                                Holman, 2015 WL 6444749, at *2.

Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                                              Page 7
trial.”15 An example would be accusing the Biblical David of blasphemy for saying,

“There is no God,” his full statement being, “The fool hath said in his heart, there

is no God.”16

                Here, the Tenth Court found that although Ms. Holman did not introduce

any portion of the forensic video before the jury, a specific introduction of the

video was not required before the State could invoke Rule 107.17 This holding is in

direct conflict with a sister court of appeals that found that “merely referring to a

statement or a quotation from it does not invoke the rule.”18 This alone qualifies

for review of this matter, as this would settle a conflict between the courts of appeal

in this State.19

                But wait. There’s more.



                15
                                United States v. LeFevour, 798 F.2d 977, 981 (7th Cir. 1986).
                16
                                Id. (citing Trial of Algernon Sidney, 9 Howell’s State Trials 818, 868–69 (K.B. 1683)).
                17
            Holman, 2015 WL 6444749, at *2 (citing Credille v. State, 925 S.W.2d 112, 116–117
(Tex. App.—Houston [14th Dist.] 1996, pet. ref’d)).
                18
                                Goldberg v. State, 95 S.W.3d 345, 387 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d).
                19
                Bradley v. State, 235 S.W.3d 808, 810 (Tex. Crim. App. 2007) (Cochran, J., concurring
on the denial of a petition for discretionary review) “ . . . [T]he opinion conflicts with other courts
of appeals’ reasoning on this very topic and thus confuses bench and bar concerning the content
of a substantive law or procedural rule.”).

Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                                        Page 8
                Assuming for arguments sake that the Court of Appeals “got it right” by

holding that Ms. Holman cast a false impression20 upon the jury, the Waco Court

of Appeals then further smears the reasons for admission in the broad brush fashion

outlined above.

                This Court has held that the “opening of the door” requires the automatic

admission of the entire videotape “is completely without support.”21 The plain

language of Rule 107 shows that to be admitted under the rule, the omitted portion

of the statement must be “on the same subject” and must be “necessary to make it

fully understood.”22 The Waco Court of Appeals clearly ignored this Court’s

dictates in interpreting Rule 107, putting it in direct conflict with this Court’s

established law. This too displays a need to review this case.




                20
                  Although a party may contend that an opponent’s evidence is false or misleading,
even false or potentially misleading evidence can satisfy the rules governing the admissibility of
evidence. Indeed, requiring the judge to pass on the truth of testimony as part of the admissibility
analysis would undermine the jurors’ role as triers of fact. According to Coke’s famous maxim,
“Ad questionem facti non respondent judices’ (judges do not decide questions of fact).” Francis A. Gilligan
& Edward J. Imwinkelried, Bringing the “Opening the Door” Theory to a Close: the Tendency to Overlook the
Specific Contradiction Doctrine in Evidence Law, 41 SANTA CLARA L. REV. 807, 824 & n.116 (2001).
                21
                                Sauceda v. State, 129 S.W.3d 116, 123 (Tex. Crim. App. 2004) (en banc).
                22
                                Id.

Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                               Page 9
                The first reason for admissibility of the entire videotape dispatched, this

Court can then turn to the reasoning in the footnote cited above.23                                            In the

alternative reason for admissibility, the Waco Court of Appeals put the burden

upon Ms. Holman to decide the admissible and inadmissible parts of the forensic

video. Stating that it was necessary for the defense to request a limiting instruction,

the lower court held that the videotape was admitted for “all purposes.”24

                This holding has no basis in the law. Inadmissible hearsay testimony does

not become admissible simply because it is contained within an admissible offer of

evidence.25 Sorting through challenged evidence to segregate the admissible from

the excludable is not obligatory for the trial court.26 Here, the State having

presented the court with a “mixed-bag” of inadmissible hearsay, the State owed a

duty to court and opposing counsel to point out or segregate those portions that

might properly be offered as under its theory of admission.27 In other words, when

“several facts are included in the offer, some admissible and others inadmissible,

                23
                                Holman 2015 WL 6444749, at *2 n.2.
                24
                                Id.
                25
                                Willover v. State, 70 S.W.3d 841, 847 (Tex. Crim. App. 2002).
                26
                                Id.
                27
                                Edward Valves, Inc. v. Cameron Iron Works, Inc., 286 F.2d 933, 939 (5th Cir. 1961).

Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                                           Page 10
then the whole (if properly objected to) is inadmissible; in other words, it is for the

proponent to sever the good and the bad parts.”28 If the evidence is in part relevant,

and in part not, an objection to admission should be sustained.29

                D.              Co n c lu s io n .

                This Court wants to know why it should expend its “scarce judicial resources

to review the court of appeals reasoning about a particular legal issue.”30 Here, the

answer is simple. The Court of Appeals decision sets it in conflict with cases from

this Court, sister courts of appeals, opinions from other states, and noted

commentators.

                “Certainty and precision [are] required by [the] law.”31 But the Waco Court

of Appeals use of the law reflect the chaotic style of Jackson Pollock instead of

exactness of Johannes Vermeer. Simply, the law requires a review of the Court of

Appeals reasoning about this legal issue.




                28
            State v. Boyd, 143 S.W.3d 36, 46 (Mo. Ct. App. 2004) (quoting 1 WIGMORE ON
EVIDENCE § 170 (3d ed. 1940.)).
                29
                                Cooper v. Bower, 96 P. 794, 795 (Kan. 1908).
                30
               Bradley, 235 S.W.3d at 809 (Cochran, J., concurring on the denial of a petition for
discretionary review).
                31
                                Perkins v. Ramsey, 18 U.S. 269, 276 (1820).

Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                   Page 11
                                                                        PRAYER FOR RELIEF

                For the reasons alleged above, Ms. Holman was denied a fair trial. Ms.

Holman prays that this Honorable Court will grant this Petition, and order a brief

on the merits of this case.

                                                                              Respectfully submitted,

                                                                              LAW OFFICE OF STAN SCHWIEGER


                                                                              /s/ Stan Schwieger

                                                                              Stan Schwieger
                                                                              600 Austin Avenue, Suite 12
                                                                              P.O. Box 975
                                                                              Waco, Texas 76703-0975
                                                                              (254) 752-5678
                                                                              (254) 756-7792—Facsimile
                                                                              E-mail: wacocrimatty@yahoo.com
                                                                              State Bar No. 17880500
                                                                              ATTORNEY FOR APPELLANT




Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                                    Page 12
                                                                CERTIFICATE OF SERVICE

                On November 16, 2015, a copy of the Petition was delivered by the

electronic filing provider to the McLennan County District Attorney’s Office,

Waco, Texas, attorney of record for the State of Texas and to the State Prosecuting

Attorney, P.O. Box 13046, Capitol Station, Austin, Texas, 78711 by first class mail.

                                                                              /s/ Stan Schwieger

                                                                              Stan Schwieger




Vivian Monroe Holman v. State—Appellant’s Petition for Discretionary Review                        Page 13
      CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
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                                      /s/ Stan Schwieger

                                      Stan Schwieger
Holman v. State, Not Reported in S.W.3d (2015)




                                                    2015 WL 6444749
                                      Only the Westlaw citation is currently available.

                   SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.

                                                     DO NOT PUBLISH
                                                  Court of Appeals of Texas,
                                                            Waco.

                                              Vivian Monroe Holman, Appellant
                                                              v.
                                                 The State of Texas, Appellee

                        No. 10–15–00015–CR           |    Opinion delivered and filed October 22, 2015

From the 54th District Court, McLennan County, Texas, Trial Court No. 2012–17–C2

Attorneys and Law Firms

Stan Schwieger, for Vivian Monroe Holman.

Andrew Erwin, Sterling A. Harmon, Gabriel Price, Abel Reyna, for The State of Texas.

Before Chief Justice Gray, Justice Davis, and Justice Scoggins



                                                 MEMORANDUM OPINION

TOM GRAY, Chief Justice

 *1 Vivian Monroe Holman was convicted of one count of aggravated sexual assault of a child (Count I) and two counts of
indecency with a child (Counts II and III). See Tex. Penal Code Ann. §§ 22.021; 21.11 (West 2011). She was sentenced to 60
years in prison on Count I and 20 years in prison on Counts II and III. Because the trial court did not err in admitting a video
interview of the complaining witness, the trial court's judgments are affirmed.

In her sole issue, Holman contends the trial court erred in allowing the State to unlawfully demonstrate that the complaining
witness, S.A., was “truthful.” Specifically, Holman argues the trial court erred in admitting a video made at the Child Advocacy
Center of the forensic interview of S.A. conducted by Melody York–Zuniga under the “rule of optional completeness.”

A trial court's admission of evidence is reviewed for an abuse of discretion. Tienda v. State, 358 S.W.3d 633, 638
(Tex.Crim.App.2012). If the ruling was correct on any theory of law applicable to the case, in light of what was before
the trial court at the time the ruling was made, we must uphold the judgment. Sauceda v. State, 129 S.W.3d 116, 120
(Tex.Crim.App.2004).

Initially, the State asserts that Holman's issue on appeal does not comport with the argument made at the trial court. A complaint
will not be preserved if the legal basis of the complaint raised on appeal varies from the complaint made at trial. Lovill v. State,
319 S.W.3d 687, 691–692 (Tex.Crim.App.2009). At first glance, it would appear that the issue does not comport. At trial,
Holman argued the video was inadmissible because it was hearsay; whereas on appeal, Holman's issue states that the video was
inadmissible because it unlawfully demonstrated S.A.'s truthfulness. However, the substance of the issue complains about the
trial court's admission of the evidence pursuant to Rule 107, the rule of optional completeness, which is the argument the State



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Holman v. State, Not Reported in S.W.3d (2015)


made for the video's admission over Holman's hearsay objection. Thus, the argument on appeal comports with the objection
made at trial that was overruled.

But the State takes their complaint a step further and states that because Holman did not make the same, or any, argument against
admission under Rule 107, her complaint on appeal does not comport. We disagree. Once Holman objected on the basis of
hearsay, it became the State's burden as the proponent of the evidence to establish that an exception applies that would make the
video admissible in spite of its hearsay character. See Taylor v. State, 268 S.W.3d 571, 578–579 (Tex.Crim.App.2008). The State
cited Rule 107, the rule of optional completeness, as an exception. Once it convinced the trial court that the video was admissible
under Rule 107, the trial court ruled on the full extent of Holman's objection, and appellate error has been preserved as to
whether the video was admissible under that exception. See e.g. McFarland v. State, 845 S.W.2d 824, 837 (Tex.Crim.App.1992)
(relevance objection preserved error as to ultimate admissibility of evidence under Rule 404(b)). Holman's issue is preserved.

*2 Generally, hearsay statements are not admissible unless the statement falls within a recognized exception to the hearsay
rule. 1 Pena v. State, 353 S.W.3d 797, 814 (Tex.Crim.App.2011). Texas Rule of Evidence 107, known as the rule of optional
completeness, is such an exception:

            When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one
            party, the whole on the same subject may be inquired into by the other, and any other act, declaration,
            writing or recorded statement which is necessary to make it fully understood or to explain the same may
            also be given in evidence, as when a letter is read, all letters on the same subject between the same parties
            may be given.

TEX.R. EVID. 107 (eff. March 1, 1998, amended eff. April 1, 2015); Id. This evidentiary rule is one of admissibility and permits
the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter “opened
up” by the adverse party. Walters v. State, 247 S.W.3d 204, 218 (Tex.Crim.App.2007). It is designed to reduce the possibility
of the jury receiving a false impression from hearing only a part of some act, conversation, or writing. Id.

Rule 107 does not permit the introduction of other similar, but inadmissible, evidence unless it is necessary to explain properly
admitted evidence. Id. It is not invoked by the mere reference to a document, statement, or act. Id. Additionally, to be admitted
under the rule, “the omitted portion of the statement must be ‘on the same subject’ and must be ‘necessary to make it fully
understood.’ ” Pena, 353 S.W.3d at 123 (quoting Sauceda v. State, 129 S.W.3d 116, 123 (Tex.Crim.App.2004)).

Holman first contends that the video was not admissible under Rule 107 because she did not introduce any portion of the video in
her cross-examination of the State's witness, Melody York–Zuniga. However, the specific introduction of the video by Holman
is not required before the State could invoke Rule 107. See Credille v. State, 925 S.W.2d 112, 116–117 (Tex.App.—Houston
[14th Dist.] 1996, pet. ref'd). Several times during cross-examination, Holman specifically inquired into what was said in the
Holman v. State Page 4 interview, such as, “did she tell you that she lies a lot sometimes,” and “she mentioned the fact that
occasionally she tells lies.” Holman also suggested during cross-examination that S.A. would try to draw Zuniga's attention
away from the question asked so that S.A. would not have to answer the question. As in Credille, Holman's cross-examination
would have left a false impression as to S.A.'s credibility. Thus, the State was entitled to offer any other evidence necessary to
make the interview “fully understood.” See id. at 117 (because appellant inquired into the videotaped conversation, the State
was entitled to offer any other evidence that was necessary to make the conversation fully understood). See also Mick v. State,
256 S.W.3d 828, 832 (Tex.App.—Texarkana 2008, no pet.) (same).

Next, Holman contends that, assuming Rule 107 was applicable, only the portion of the video where Zuniga and S.A. discussed
the difference between the truth and a lie should have been introduced. However, Holman's attack on the victim's credibility
did not encompass just this portion of the interview. As stated previously, Holman also suggested that the victim would try to
draw Zuniga's attention away from the question asked so that she would not have to answer the question. Thus, it was necessary
to show these instances in the context of the entire interview. 2 See Credille, 925 S.W.2d at 117.



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Holman v. State, Not Reported in S.W.3d (2015)




 *3 Accordingly, the trial court did not abuse its discretion in admitting the video interview of the victim. Holman's sole issue
is overruled, and the trial court's judgments are affirmed.


All Citations

Not Reported in S.W.3d, 2015 WL 6444749


Footnotes
1      Neither party contends the video at issue is not hearsay.
2      Further, Holman did not request any limitation on the video's admissibility. A party opposing evidence has the burden of objecting
        and requesting a limiting instruction at the time the evidence is admitted as to any portion of the evidence that is objectionable
        for another reason or admissible only for a limited purpose. See Tex.R. Evid. 105(a); Hammock v. State, 46 S.W.3d 889, 892
        (Tex.Crim.App.2001). Without a request for a limiting instruction, it was admitted for all purposes. See Hammock, 46 S.W.3d at 895
        (recognizing that once evidence is admitted without limiting instruction, it may be used for all purposes).


End of Document                                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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