                                    NO. 07-10-0284-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                       APRIL 13, 2011




                        DEXTER WAYNE GREENE, APPELLANT

                                               v.

                           THE STATE OF TEXAS, APPELLEE



      FROM CRIMINAL DISTRICT COURT NO. THREE OF TARRANT COUNTY;

              NO. 1160937D; HONORABLE ELIZABETH BERRY, JUDGE



Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                 MEMORANDUM OPINION

       Appellant, Dexter Wayne Greene, pled guilty in open court to two counts of

sexual assault of a child1 and was sentenced to two consecutive eighteen year

sentences.2 In a single point of error, Appellant asserts the trial court violated his right

1
See Tex. Penal Code Ann. § 22.011(a)(2) (West Supp. 2010).
2
 In a separate cause number, Appellant was also convicted of a third offense of sexual assault
of a child and assessed a five year sentence to be served concurrently with the first of his two
eighteen year sentences.
to due process guaranteed by the Fourteenth Amendment of the United States

Constitution by excluding evidence of his written and recorded statements to the police

during his punishment trial. We affirm.


                                      Background


       On July 14, 2009, a Tarrant County Grand Jury returned an indictment against

Appellant alleging that he intentionally and knowingly caused the sexual organ of W. H.,

a child younger than seventeen years of age who was not Appellant's spouse, to

contact Appellant's mouth on April 1 and May 1 of 2008, Counts One and Two

respectively. Appellant subsequently pled guilty to both counts and a punishment trial

was held before a jury.


       Prior to the punishment trial, the State successfully moved to prohibit any

mention of Appellant's oral or written statements to the police on the grounds that the

statements were self-serving and inadmissible hearsay.            At the punishment trial,

Sergeant Detective Tom Milner testified on direct examination, in pertinent part, as

follows:


       STATE:       [W. H.] didn't ask any adults for help, did he?
       MILNER:      No.
       STATE:       [W. H.] tried to handle it himself?
       MILNER:      Yes.
       STATE:       In fact, [W. H.] tried to push him off, didn't he?
       MILNER:      [W. H.] did say that he had a fight with him, yes.
       STATE:       But, I mean, independent of pushing him off, the fight was later,
                    wasn't it?
                                             2
      MILNER:       Yes.
      STATE:        [W. H.] tried to push him off one time. Another time when
                    the defendant tried to get [W. H.] to go to sleep, that's when
                    the fight began?
      MILNER:       Yes.
      STATE:        What did [W. H.] do?
      MILNER:       [W. H.] stated he hospitalized [Appellant], cracking his ribs.
      STATE:        [W. H.] hurt him?
      MILNER:       Yes.
      STATE:        [W. H.] wanted it to stop, and [Appellant] wouldn't take no for
                    an answer?
      MILNER:       No.


      On cross examination, Detective Milner testified, in pertinent part, as follows:


      DEFENSE: Did you just state that [W. H.] offered that he---I'm sorry.
               What did you just say about the fight?
      MILNER:       Said that he hospitalized [Appellant].
      DEFENSE: All right. And [W. H.] gave you a reason why?
      MILNER:       He said that [Appellant] was trying to get him to go to sleep,
                    so Appellant could perform sexual acts on him.
      DEFENSE: And do you have any reason to believe that there's anything
               that explains or contradicts that?
      MILNER:       No.


      Appellant then sought to introduce his out-of-court oral and written statements to

Detective Milner to explain or contradict Milner's testimony regarding W. H.'s reasons

for breaking Appellant's ribs and hospitalizing him.3 Appellant asserted that the State

3
 In his oral and written statements to Detective Milner, Appellant described W. H. as an
aggressor who broke Appellant's ribs when he refused to perform sexual acts on W. H.
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"opened the door" in its direct examination of Milner and Appellant's statements were

necessary mitigation evidence regarding whether the sexual acts were forced or

consensual. The State asserted that no evidence of Appellant's statements was offered

in Detective Milner's direct examination and it was defense counsel that "opened the

door" to whether other evidence existed that explained or contradicted Detective

Milner's account of W. H.'s motivation for breaking Appellant's ribs. The trial court

denied Appellant's request.


       At the trial's conclusion, the jury found Appellant guilty of Counts One and Two in

the indictment and sentenced Appellant to two consecutive sentences of eighteen years

confinement. This appeal followed.


                                       Discussion


       Appellant asserts that his own out-of-court statements were admissible as

mitigation evidence because the statements directly contradicted Detective Milner's

testimony that W. H. had told him that he was fending off Appellant's sexual advances

when he cracked Appellant's ribs. Further, Appellant argues that, due to Detective

Milner's blanket declaration that he was unaware of any evidence that contradicted or

explained W. H.'s version of why he fractured Appellant's ribs, the jury was given the

false impression that Appellant was physically aggressive towards W. H. Appellant

asserts this created a false impression that led the jury to assess near-maximum

sentences. The State counters contending the trial court correctly excluded Appellant's

statements because they were inadmissible hearsay and unnecessary to explain or

contradict any evidence first offered by the State.

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                                   Standard of Review


       We review a trial court's decision to admit evidence under an abuse of discretion

standard. Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007) (citing Apolinar

v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005)). A trial court abuses its discretion

only when the decision lies "outside the zone of reasonable disagreement." Id.


                                Self-serving Statements


       The general rule in Texas is that self-serving statements are generally

inadmissible as proof of the facts they assert. Allridge v. State, 762 S.W.2d 146, 152

(Tex.Crim.App. 1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238

(1989). Testimony by third persons as to an accused's self-serving declarations are

hearsay and thus inadmissible.          Moore v. State, 849 S.W.2d 350, 351 n.1

(Tex.Crim.App. 1993) (citing DeRusse v. State, 579 S.W.2d 224, 233 (Tex.Crim.App.

1979)).


       There are exceptions, however, to this general rule. Allridge, 762 S.W.2d at 152.

A self-serving statement may be admissible if the statement is: (1) part of the res

gestae of the offense or arrest, (2) part of a statement or conversation already offered

by the State, or (3) necessary to explain or contradict evidence first offered by the State.

Id. (citing Singletary v. State, 509 S.W.2d 572, 576 (Tex.Crim.App. 1974)). The theory

behind the third exception is to prevent the fact finder from being misled or perceiving a

false, incorrect impression when hearing only a part of an act, declaration, conversation,




                                             5
or especially, a writing. Reado v. State, 690 S.W.2d 15, 17 (Tex.App.--Beaumont 1984,

pet. ref'd).4


        Here, Appellant makes no contention that his statements were part of the res

gestae of the offense, and the record does not show that the State made any effort to

proffer any portion of Appellant's statements in its case-in-chief or at any other time.

Therefore, Appellant is unable to prove either the first or second exceptions.


        In addition, there is no showing that Appellant's out-of-court statements to

Detective Milner were necessary to correct a false or incorrect impression created by

Detective Milner's testimony regarding W. H.'s self-described motivation for injuring

Appellant. Here, Appellant sought to use his out-of-court statements to contradict or

assert an alternative version of the events described by W. H. through Detective

Milner's testimony. As such, Appellant's statements were not necessary to clear up any

misconceptions for the jury regarding how or why the events described by W. H.,

through Detective Milner's testimony, occurred. Detective Milner's account of W. H.'s

statement regarding Appellant's rib injury was complete. That the State did not present

exculpatory or explanatory testimony favoring Appellant in its case-in-chief does not

4
 This is the so-called rule of optional completeness, a common-law doctrine that is a recognized
exception to the hearsay rule. See Walters, 247 S.W.3d at 218. This rule is one of admissibility
and permits the introduction of otherwise inadmissible evidence when the evidence is necessary
to fully and fairly explain a matter "opened up" by the adverse party. Id. (citing Parr v. State,
557 S.W.2d 99, 102 (Tex.Crim.App. 1977)). That said, however, simply "opening up the door,"
does not automatically require admission of otherwise inadmissible evidence under the rule of
optional completeness. Sauceda v. State, 129 S.W.3d 116, 122 (Tex.Crim.App. 2004); Kipp v.
State, 876 S.W.2d 330, 337 (Tex.Crim.App. 1994). Rule 107 of the Texas Rules of Evidence
indicates that, in order to be admitted, the omitted portion of the statement must be “on the
same subject” and must be “necessary to make it fully understood." Tex. R. Evid. 107.

                                               6
equate to misleading the jury or leaving the jury with only a partial or incomplete version

of the facts. In fact, the State did proffer W. H. as a witness during its case-in-chief and

during cross-examination, W. H. indicated that he injured Appellant's ribs while they

were playing on Appellant's living room floor


       Further, it has been held that, when the accused does not take the stand, self-

serving statements are not admissible when they are merely contradictory to some act

or declaration first proffered by the prosecution. Starks v. State, 776 S.W.2d 808, 811

(Tex.App.--Fort Worth 1989, pet. ref'd) (citing Reado, 690 S.W.2d at 17).               Here,

Appellant did not testify.      Therefore, if the trial court had admitted Appellant's

statements, there would have been no opportunity to cross-examine Appellant on his

statements to Detective Milner. Under the circumstances, to admit Appellant's self-

serving statements in the State's case-in-chief would permit any defendant to place his

version of the facts before the jury through hearsay statements without being subject to

cross-examination. See Reado, 690 S.W.2d at 17 ("To adopt Appellant's position would

mean that all self-serving statements by an accused would be admissible.")

Accordingly, we find the trial court did not abuse its discretion in excluding Appellant's

self-serving statements.5


       Renteria v. State, 206 S.W.3d 689 (Tex.Crim.App. 2006), is of no assistance to

Appellant. In Renteria, the Criminal Court of Appeals determined it was error not to


5
 Even if Appellant's cross-examination of Detective Milner may have somehow misled the jury or
created a false impression in their minds as Appellant suggests, this does not make his self-
serving out-of-court statements admissible.       Renteria v. State, 206 S.W.3d 689, 705
(Tex.Crim.App. 2006).

                                              7
admit a defendant's self-serving statement to police wherein he expressed remorse

after the State presented expert testimony at trial, based on hypotheticals supported by

the record, that a person like the defendant would be a future danger to society in part

because the hypothetical person was unremorseful. Id. at 694-98. Unlike Renteria

wherein the State depicted the defendant as unremorseful through hypotheticals, here,

Detective Milner's testimony merely described W. H.'s account of his motivation for

injuring Appellant while saying nothing of Appellant's state of mind or motivation at the

time he was injured. As such, this case is more like Starks, supra, wherein the trial

court properly excluded a defendant's self-serving statement that his gun went off

accidently as opposed to intentionally; Starks, 776 S.W.2d at 811, or Walck v. State,

943 S.W.2d 544 (Tex.App.--Eastland 1997, pet. ref'd), wherein the trial court properly

excluded a defendant's self-serving statements to his psychologist intended to establish

his state of mind at the time of the offense. Id. at 545. In both cases, as here, the

excluded statement does not contradict an act or declaration, but instead merely seeks

to contradict the State's evidence of intent. Appellant's single point of error is overruled.


                                        Conclusion


       The trial court’s judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice

Do not publish.




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