                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00088-CR
        ______________________________


         LUTHER CALDWELL, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 202nd Judicial District Court
                Bowie County, Texas
           Trial Court No. 08F0846-202




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
        Dissenting Opinion by Justice Carter
                                                      OPINION

            After Luther Caldwell was convicted by a Bowie County jury for the murder of Greg

Thomas and sentenced to life imprisonment, he has appealed. Caldwell complains that the trial

court erred in limiting the evidence Caldwell was allowed to present regarding a possible

alternative perpetrator of the charged murder and that the trial court should have granted

Caldwell‘s motion for new trial based on an allegation of the discovery of new evidence. After

reviewing the record and considering the parties‘ oral arguments, we find no reversible error and

affirm the judgment.

The Shooting

            The State‘s central witness was a sometime prostitute, Donna Taylor, who testified that she

was personally acquainted with Caldwell. Taylor indicated that she had previously lived with

Caldwell, had regularly purchased illicit drugs from him (including a purchase on the morning of

the shooting), and had previously driven Caldwell‘s Nissan Sentra, which she alleged that

Caldwell had driven while shooting Thomas.

            The crux of Taylor‘s testimony was that on the night of September 12, 2007, she was

walking along Nettie Street in Texarkana and encountered Thomas, whom she knew. As Taylor

and Thomas walked along together, Taylor saw Caldwell driving his Sentra. 1 Since Taylor

wanted to purchase more crack cocaine, she attempted to attract Caldwell‘s attention. At that

time, she observed Caldwell point the barrel of a gun out the car‘s passenger window, shoot
1
    On the stand, Caldwell said he did not own the Sentra on the date of the killing.

                                                              2
Thomas, and then drive away. Taylor, frightened, ran and hid in an alley, emerging after about

ten minutes. A few blocks from the location of the shooting, she encountered another person

familiar to her, Johnny Ward. Taylor told Ward she had just seen someone get shot, but testified

she did not tell Ward the identity of the victim. A short time later, Taylor approached a police

officer and told him she had seen ―something bad.‖            At the police station, Taylor told

investigators that Caldwell was the shooter, and she identified a picture of him in a photographic

line-up.

       In her first statement to police the night of the killing, Taylor said she saw the gun barrel

protruding from the passenger window and repeated that at the time of trial.                    On

cross-examination, Caldwell established a temporary change in her story, pointing out that in

2008, Taylor had told the police that the gun protruded from the driver‘s side window and not the

passenger‘s side window. Taylor acknowledged having misspoken in that intervening statement

to police, and reaffirmed that the gun barrel projected from the passenger‘s side window when

Caldwell drove past and shot Thomas.

       In the hours after the shooting, even though Taylor had given a positive identification of

Caldwell as the perpetrator, police still rounded up other persons of interest in the neighborhood

and brought them in for questioning; those persons brought in for questioning included Ward and a

companion, Curnediles Larry, both of whom were swabbed to test for gunshot residue. Gunshot

residue tests were negative for both men. As one detective was swabbing Ward, Ward inquired



                                                 3
about the purpose of the test and, in particular, regarding the length of time which could pass

between a test subject firing a gun and the ability of the test to detect a residue of gunpowder.2

The chief investigator for the case, Detective Scott Sartor, interviewed both Ward and Larry, found

their alibis persuasive to him,3 and concluded that neither man had any connection to Thomas‘

slaying.

            Leonard Bolton testified4 that the day after the shooting, another person (Little Charles

Ray) brought Caldwell to Bolton, and told Bolton that Caldwell had shot Thomas. Bolton said

that although Caldwell was present and overheard Ray‘s statement, Caldwell made no attempt to

deny the crime. Bolton (who admitted having engaged in the sale of illicit drugs with Caldwell)

stated that Caldwell enlisted Bolton‘s assistance in leaving Texarkana. Bolton said that Caldwell

related that he wanted to avoid the Texarkana bus station because he feared that police monitored

that station with drug-detection dogs. Bolton chauffeured Caldwell to Atlanta, Texas. Missing

the bus there, they proceeded south to the bus station in Marshall, Texas, from whence Caldwell

departed for Stockton, California. Bolton said that throughout the drive to the various bus

2
 Part of Caldwell‘s defensive theory was to stress Ward‘s curiosity while being questioned by police. Ward‘s
questions were described by Detective William Buttram:

            Ward asked me while I was taking [the swab for gunshot residue] what it was good for, or how long
            it was good for, what I was doing, and I didn‘t understand what he was asking. He wanted to know
            how long it would last, I guess, if he‘d fired a gun, you know, a year ago if it was still there is what
            I presumed.
3
    The nature of these alibis was not developed.
4
 Caldwell was tried for the killing a month before the trial, which resulted in his conviction: that first trial resulted in
a mistrial where the jury could not reach a unanimous verdict. Bolton did not testify at the first trial.

                                                               4
stations, Caldwell said he had ―fucked up,‖ but Bolton would not allow Caldwell to explain what

he meant by that.5 Shortly after arriving in Stockton, California, Caldwell called Bolton to tell

him that he had arrived; in that conversation, Caldwell told Bolton that he had seen his picture

being broadcast on a television in the Marshall bus station as a wanted man. On at least two

occasions, Bolton sent money to Caldwell in California. Later, Bolton contacted police and

Caldwell was located and arrested in California.

         Caldwell testified in his defense. Although he admitted to being a drug dealer, he denied

that he was a murderer, denying that he had anything to do with the shooting of Thomas. His

explanation for going to California the day after the killing was that a shooting in the neighborhood

generated the wrong kind of attention for his drug business, and he also intended to attend his

brother‘s wedding.

Caldwell’s Alternative Perpetrator Theory

         Caldwell‘s defensive theory focused on Ward: through cross-examination of the State‘s

witnesses, Caldwell suggested Ward was the killer.6 The trial court limited the evidence Caldwell

was allowed to present to the jury, precluding him from showing a possible motive Ward may have

possessed to kill Thomas, as well as a short document (generated by prosecutors or law


5
 Bolton was evidently trying to limit his knowledge of the crime and his own culpability. In acknowledging he could
be indicted for his involvement, and explaining why he would not let Caldwell say more, Bolton said, ―I didn‘t want to
know about it. I didn‘t want to be -- I didn‘t want to be here [testifying] today.‖
6
 In law enforcement circles, this is often known as the SODDI (―some other dude did it‖) defense. James v. State, 48
S.W.3d 482, 486 (Tex. App.—Houston [14th Dist.] 2001, no pet.).

                                                          5
enforcement on an interagency computer program), which suggested Ward had killed Thomas.

This limitation on the evidence Caldwell was allowed to present is the source of one of Caldwell‘s

complaints on appeal. We affirm the trial court‘s ruling.

        Evidence Not Permitted by the Trial Court

        Four or five days before Thomas was killed, Ward was alleged to have been involved in a

shooting in the same neighborhood where the instant killing occurred. In that case, Ward was

alleged to have shot a man who was standing with Thomas and a third man. Thomas gave a

statement to police in which he identified Ward as the shooter in that case. Caldwell asked the

trial court to allow him to present this evidence of accusations about Ward‘s earlier shooting

activity as evidence that he (Ward) had a motive to kill Thomas, a witness to the prior shooting.

The trial court refused to allow this evidence, although the jury was permitted to hear two police

officers testify that Ward was initially considered a suspect, and was brought in for questioning in

the hours immediately after the shooting.7

        The trial court also precluded Caldwell from presenting evidence: a printout from a

computer program called ―Able Term.‖ From the record and statements from the State at oral

argument, Able Term appears to be a software program accessible by law enforcement officers,

the prosecutor‘s office, and the clerk‘s office which is maintained for the purpose of keeping track

7
 Officer Jeff Johnston and Detective Buttram testified that Ward and Larry were brought to the police station for
questioning in the hours after the shooting. Buttram said this was common procedure, ―[Officers] bring in everybody
they can.‖ Buttram said he believed Ward and Larry were located at a convenience store close to the murder scene;
he was not sure exactly how close, though. On cross-examination, Caldwell established that when officers spoke to
Ward, he did not mention having spoken to Taylor that night.

                                                        6
of criminal cases. Caldwell wanted to present to the jury a printout of an entry in Able Term,

which seemed to refer to the allegation of Ward‘s shooting at Thomas and two other men a few

days before Caldwell was alleged to have killed Thomas. The entry stated in full:


       1. Date / Time: 11/20/07

       2. Event Code: NP (STATE DECLINED PROSECUTION)

       3,   Comment:      DEFENDANT CHARGED W/ MURDER OF THE ONLY
                          WITNESS IN THIS CASE

At the hearing outside the presence of the jury where Caldwell presented this Able Term evidence,

the State also proffered a copy of a letter sent from the Bowie County District Attorney‘s Office to

Caldwell‘s counsel, stating that while Ward had initially been a suspect in Thomas‘ killing, he had

never been charged with that offense. More particularly, the State‘s letter stated that the relevant

Able Term entry was ―made by the District Attorney‘s Office,‖ that the State declined prosecution

in the earlier shooting, and that the State ―has no exculpatory evidence related to the prosecution of

Luther Caldwell. Although he was an initial suspect, Johnny Ward, Jr. was never charged with

the murder of Gregory Thomas.‖

       The Law on Alternative Perpetrators

       A criminal defendant is entitled to present evidence that another party is responsible for the

crime alleged against the defendant; but the defendant ―must show that his proffered evidence

regarding the alleged alternative perpetrator is sufficient, on its own or in combination with other



                                                  7
evidence in the record, to show a nexus between the crime charged and the alleged ‗alternative

perpetrator.‘‖ Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim. App. 2002).8 A defendant must

do more than offering ―unsupported speculation‖ of another, alternative perpetrator of defendant‘s

charged offense. Id. at 407 n.23 (quoting United States v. McVeigh, 153 F.3d 1166, 1191 (10th

Cir. 1998)).

         The appellant in Dickson v. State, 246 S.W.3d 733 (Tex. App.—Houston [14th Dist.] 2007,

pet. ref‘d), likewise attempted to present evidence of an alternative perpetrator. In that case,

Dickson was charged with aggravated robbery.9 Dickson sought to present evidence that another

person committed the charged offense; following that strategy, he was allowed to present evidence

that the proposed alternate suspect resembled Dickson, lived in the area of the robberies, and had

been convicted of robberies close in time to the charged offense. However, the trial court refused

to allow Dickson to present photographic evidence that the alternative perpetrator resembled

Dickson or introduce evidence of judgments of conviction showing the proposed alternative




8
 Wiley, charged with burning down his own restaurant, sought to introduce evidence that another person, a ―known
‗fire-starter,‘‖ had been ejected from the restaurant a few days prior to the fire for ―acting crazy,‖ striking matches, and
removing his shirt. 74 S.W.3d at 403, 405. Wiley also wanted to put on evidence this ―fire-starter‖ was seen across
the street from the restaurant when it burned. However, the defense also conceded to the trial court that this alleged
alternative perpetrator likely lacked the intellectual capacity to plan and execute the fire. 74 S.W.3d at 404. Wiley
instead wanted to raise the possibility this third person may have acted in concert with another arsonist. The Texas
Court of Criminal Appeals agreed with the trial court that Wiley‘s proffered evidence was properly excluded under
Rule 403. See TEX. R. APP. P. 403; Wiley, 74 S.W.3d at 407.
9
 In one evening, four people were robbed at a Houston apartment complex, in three separate incidents. Dickson was
charged with robbery of one person, and the State presented evidence of another victim as proof of identity of the
robber. Dickson then presented the fourth victim, who testified Dickson was not his robber.

                                                             8
perpetrator had committed robberies one day before and twenty-two days after the charged

offense. Id. at 237–38.

        The appellate court in Dickson found that while the evidence Dickson sought to admit was

relevant to the core issue of the case (i.e., the identity of the perpetrator), the defense nonetheless

failed to present any evidence connecting the alleged alternative perpetrator to the charged

offense.

        In order for a court to conclude there is a nexus between an alleged alternative
        perpetrator and the offense-at-issue, there must be something more than evidence
        that a person other than the criminal defendant was committing similar crimes
        around the time of the offense-at-issue, the evidence must connect the alleged
        alternative perpetrator to the specific offense.

Id. at 741. Therefore, the evidence was properly excluded. Id.10

        The theory that Ward had a motive to want Thomas (a witness to the previous shooting)

dead, combined with Ward‘s alleged involvement in a shotgun shooting in the same neighborhood

just a few days prior to the instant crime and Ward‘s presence in the area near the time Thomas‘

murder occurred could be deemed to create some degree of nexus linking Ward to the killing of
10
  Caldwell directs us to United States v. Stevens, 935 F.2d 1380, 1405 (3rd Cir. 1991). That court found evidence of
another person committing a crime similar to that with which Stevens was charged admissible where: two armed
robberies––that for which Stevens was charged and another––occurred within a few hundred yards from each other;
between 9:30 and 10:30 p.m., with a handgun; perpetrated upon military personnel; by a black assailant, who was
described similarly by the victims. Stevens sought to present testimony from the black victim of the uncharged
crime, who would say that Stevens was not his attacker. Stevens reasoned that because of the similarity between the
crimes, they were likely committed by the same person; and the (non)identification of the black victim of the
uncharged crime was more accurate/credible than the identification of the white victims in the charged crime, because
same-race identifications are more accurate than cross-racial identifications. Id. at 1401, 1405. The court found
Stevens‘ ―reverse 404(b)‖ evidence admissible, based on the similarities of the crimes and the testimony regarding
cross-racial identification. Id. at 1404–06. We take note of Stevens, but in light of the particulars of that case,
including the expert testimony, and its differences from the case before us, do not find the Third Circuit case
compelling.

                                                         9
Thomas. We review an exclusion of evidence for abuse of discretion. Martin v. State, 173

S.W.3d 463, 467 (Tex. Crim. App. 2005). A trial court abuses its discretion if its decision is

outside the zone of reasonable disagreement or if it acts without reference to guiding rules or

principles. Montgomery v. State, 810 S.W.2d 372, 380, 391 (Tex. Crim. App. 1990) (op. on

reh‘g). When the trial court made its ruling, excluding the evidence of Ward‘s earlier shooting

incident and the Able Term document, it specifically relied upon the analysis of Wiley. The trial

court found that while there was some relevance in the proffered evidence, there was insufficient

evidence to establish the nexus required by Wiley. Citing Taylor‘s testimony that Ward was not at

the scene, was not the shooter, and that Caldwell was the shooter, the trial court found no such

nexus and that introduction of the evidence urged by Caldwell would

            require a mini-trial, which would require the State to present witnesses to prove or
            disprove what happened in the other case, and that would cause confusion to this
            jury, and that there‘s not a sufficient nexus to tie [Ward] to it to make the
            probability great enough to outweigh that prejudicial effect.

Here, the trial court clearly based its ruling on Texas Court of Criminal Appeals precedent and the

Texas Rules of Appellate Procedure. We find the trial court‘s ruling was in the zone of

reasonable disagreement, and overrule Caldwell‘s point of error.

Caldwell’s Motion for New Trial

            Caldwell filed a motion for new trial, which was overruled by operation of law.11 In that

motion, he claimed that the State failed to disclose that witness Bolton had been arrested for felony

11
     See TEX. R. APP. P. 21.8(c).

                                                    10
deadly conduct and misdemeanor assault causing bodily injury––family violence.12 Caldwell

argued that absent this information, he was unable to fully impeach Bolton‘s testimony. On

appeal, he claims his motion for new trial should have been granted.

         We begin by addressing a point of procedure. The motion for new trial does not request a

hearing, and there is nothing in the clerk‘s record indicating Caldwell presented the motion to the

trial court or requested a hearing. See TEX. R. APP. P. 21.8; Rozell v. State, 176 S.W.3d 228, 230

(Tex. Crim. App. 2005); Carranza v. State, 960 S.W.3d 76, 78–79 (Tex. Crim. App. 1998)

(―present‖ means deliver motion to court or bring to court‘s attention). A motion for new trial

must be presented to the trial court in a timely fashion. See TEX. R. APP. P. 21.6.

         Caldwell directs us to a letter his counsel sent to the trial court, which says in part, ―I filed

a Motion for New Trial . . . I was wondering how you wanted to handle this matter. Please let me

know if you want to set this matter for hearing or simply rule on the motion.‖13 A defendant filing




12
  This information is supplied in the motion for new trial, to which is attached an offense/arrest report from May 2008,
which indicates officers responded to a report of shots fired; other than Bolton being arrested for the two offenses,
there is no indication formal charges were filed.
13
  This letter is attached to Caldwell‘s motion to supplement the record on appeal. In the same motion, he asked to
supplement by including the reporter‘s record from Caldwell‘s first trial, the mistrial. He also asks that the attached
letter to the trial court be included in the supplemented record. We granted Caldwell‘s motion to supplement the
appellate record, but see no indication Caldwell sent a supplemental request to the district clerk to supplement the
record with the requested correspondence. It is the appealing party‘s burden to ensure that the record on appeal is
sufficient to resolve the issue he presents. Guajardo v. State, 109 S.W.3d 456, 462 n.17 (Tex. Crim. App. 2003).
This Court‘s letter to the parties stating that Caldwell‘s motion to supplement had been granted was sent to Caldwell‘s
counsel, the court reporter, and a courtesy copy was sent to the State. It was Caldwell‘s responsibility to request
specific items for inclusion in the clerk‘s record. See TEX. R. APP. P. 34.5. A document not contained in the clerk‘s
record is not properly before this Court for consideration. See Yarbrough v. State, 57 S.W.3d 611, 618 (Tex.

                                                          11
a motion for new trial must present the motion to the trial court and obtain a hearing before the

motion is overruled by operation of law. See Rozell, 176 S.W.3d at 231; see also Carranza, 960

S.W.3d at 78–79 (―present‖ means deliver motion to court or bring to court‘s attention). Mere

filing of the motion for new trial with the trial court is insufficient to constitute presentment.

Carranza, 960 S.W.2d at 78.

         As in Rozell, the appellant here did not specifically request the trial court hold a hearing on

the motion for new trial, leaving it to the trial court‘s discretion as to whether a hearing was to be

held or whether the motion could be overruled by operation of law. Similarly, Rozell failed to

affirmatively request a hearing in his motion, an action which gave the trial court the option to

choose between conducting a hearing or ruling on the motion without a hearing. ―[W]ithout a

more specific request, [this] left to the trial court‘s discretion whether a hearing should be held.‖

Rozell, 176 S.W.3d at 231.14

         Notwithstanding Caldwell‘s failure to present his motion, request a hearing, and obtain a

ruling on his motion for new trial, as required by Rules 21.6 and 21.8, we find his motion would

nonetheless have been unsuccessful. The basis of the motion for new trial was newly discovered

evidence that State‘s witness Bolton had an arrest, which was not disclosed to the defense.




App.—Texarkana 2001, pet. ref‘d). In the interest of justice, however, we will consider whether Caldwell‘s letter to
the trial court sufficed to request a hearing on the motion for new trial.
14
   Caldwell‘s counsel candidly acknowledged at oral argument his letter to the trial court was likely insufficient to
request a hearing. This Court always appreciates and commends candor on the part of counsel.

                                                         12
Caldwell claims that had he known about this arrest, he could have used that information in

cross-examining Bolton to impeach him. We disagree.

        Specific acts of misconduct are admissible to impeach a party or witness only if both the

crime was a felony or involved a crime of moral turpitude, regardless of punishment, and the trial

court determines that the probative value of the evidence outweighs its prejudicial effects. See

Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App. 1993); Reyna v. State, 99 S.W.3d 344, 348

n.2 (Tex. App.—Fort Worth 2003, pet. ref‘d); see also TEX. R. EVID. 609(a). An exception to the

prohibition against impeachment through a prior conviction arises when the testimony of a witness

during direct examination ―opens the door‖ or leaves a false impression with the jury as to the

extent of the witness‘ prior arrests, convictions, charges, or trouble with the police. See Delk, 855

S.W.2d at 704; Reyna, 99 S.W.3d at 349. Otherwise inadmissible evidence may be admitted if

the party against whom the evidence is offered opens the door, provided the evidence does not

stray beyond the scope of the invitation. Feldman v. State, 71 S.W.3d 738, 755–56 (Tex. Crim.

App. 2002). An exception to that general rule against admission of unadjudicated bad acts arises

when a witness leaves a false impression as to the extent of either his prior (1) arrests,

(2) convictions, (3) charges, or (4) ―trouble‖ with the police. Prescott v. State, 744 S.W.2d 128,

130–31 (Tex. Crim. App. 1988); Hall v. State, 161 S.W.3d 142, 156 (Tex. App.––Texarkana 2005,

pet. ref‘d).




                                                 13
       Caldwell‘s theory is that Bolton opened the door by giving a false impression about his

arrest history. When the State called Bolton to the stand, they questioned him about a felony

controlled substance conviction from 1990 or 1991. Bolton acknowledged the conviction, for

which he had been placed on community supervision. Later, on cross-examination, Caldwell

asked what led Bolton to contact police and testify for the State:

              Q      [Defense Attorney] Okay. At the time that you gave the
       information on Mr. Caldwell, were you on probation?

               A       [Bolton] No, sir.

               Q       Have you been promised any Crime Stoppers‘ reward or anything of
       that nature?

               A        No, sir.

               Q       What was your motivation on turning in Mr. Caldwell?

               A       You‘ve got to tell me what you mean by motivation.

               Q       Well, I mean, why did you -- ?

               A       What was the reason why?

               Q       Why did you do it? Yes, sir.

             A       Because I seen on TV a show called ―First 48,‖ and if you help
       somebody that did something wrong you can go to jail for it.

              Q       So you thought your helping out [testifying for the State] would get
       you out of trouble, huh?

               A       It didn‘t.



                                                14
               Q      It didn‘t? Have you been charged?

               A      I don‘t know.

               Q      Have you ever been arrested?

               A      Yeah, I done been arrested before.

               Q      You have?

               A     Yes, I have been arrested. I just told you I was on probation for
       drugs in ‗91.

              Q      Okay.       Have you been arrested for aiding and abetting
       Mr. Caldwell?

               A      No, sir.

               Q      When you were on probation, did you do any jail time or anything
       like that?

              A       I went to jail - - they arrested me and I went to jail, and then I got
       out. I got out of jail - - I went to jail when I got arrested.

               Q      After being placed on probation, did you go to jail?

               A      No, sir.

              Q       The morning that you delivered Mr. Caldwell to the bus station, did
       he have - - was he in possession of drugs?

Caldwell argues that Bolton effectively said that he had only been arrested for the drug offense

which led to his 1990 or 1991 conviction. There, Caldwell believes he should have been able to

cross-examine and impeach Bolton with evidence that he had also been arrested in 2008 for deadly

conduct and assault. See Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v. Bagley, 473


                                                15
U.S. 667, 676–77 (1985) (Brady evidence includes evidence that can be used to impeach State‘s

witnesses); Arroyo v. State, 117 S.W.3d 795, 796 n.1 (Tex. Crim. App. 2003).

       Bolton did not create a false impression that he had no other arrests than that involved in

his old felony conviction. Defense counsel asked Bolton if he had been arrested or charged with

assisting Caldwell in his flight from Bowie County‘s jurisdiction. Yes, counsel asked Bolton,

―Have you ever been arrested?‖ but that was clearly in the context of the line of questioning about

any charges for hindering apprehension regarding Bolton‘s involvement with Caldwell after the

instant murder. It is important to look at the questions in context of the record. ―In determining

whether a false impression was created, . . . we must examine the testimony in context, rather than

in a vacuum.‖ Moore v. State, 82 S.W.3d 399, 407 (Tex. App.—Austin 2002, pet. ref‘d),

overruled on other grounds by Taylor v. State, 268 S.W.3d 571, 587 (Tex. Crim. App. 2008)

(citing Prescott v. State, 744 S.W.2d 128, 131 (Tex. Crim. App. 1988)). Bolton may have

misunderstood this question, as evidenced by his response, ―Yes, I have been arrested. I just told

you I was on probation for drugs in ‗91.‖ Alternatively, he could have just as easily been replying

that he had already said that he had been arrested, giving his testimony about the drug arrest.

Caldwell did not ask about other charges except as they pertained to arrests arising from

circumstances pertaining to this case. Caldwell‘s follow-up question again refers to any charges

related to the instant case: ―Have you been arrested for aiding and abetting Mr. Caldwell?‖




                                                16
            In Prescott, the defendant was questioned about affidavits made by two witnesses who

corroborated Prescott‘s version of events. When asked about the fact that the affidavits were

signed and notarized in his attorney‘s office on the same day, Prescott said, ―Well, I‘m -- this is my

first time of going through this. Hopefully my last. In other words, I don‘t -- I‘m not sure about

the legal lawyer (pause) whatever.‖ Prescott, 744 S.W.2d at 130 (emphasis added by Texas

Court of Criminal Appeals). The Texas Court of Criminal Appeals found Prescott had not opened

the door to impeachment with this other offense.

            The appellant‘s response, ―this is my first time of going through this. Hopefully,
            my last,‖ cannot be examined in a vacuum. Yet such an analysis would
            completely ignore both the question which the appellant was attempting to answer
            and the context in which the response was given.

Id. Prescott‘s answer was in direct response to the posed question, and ―restrictive, responsive,

reasonable and understandable.‖ Id.

            As in Prescott, Bolton‘s answers to defense counsel‘s questions must be viewed in context;

as such, Bolton did not create a false impression about his arrest history and did not open the door

to impeachment with any cross-examination not expressly allowed by Rule 609. Thus, even if the

State had tendered to Caldwell Bolton‘s 2008 arrest,15 Caldwell would not have been able to use

that arrest information to impeach Bolton.16



15
     There is no suggestion, in the record or by Caldwell, of any bad faith on the part of the State.
16
  It would have been impermissible for Caldwell to attempt to maneuver Bolton into ―opening the door‖ or making a
false representation of his arrest history on cross-examination. See Lopez v. State, 928 S.W.2d 528, 531–32 (Tex.

                                                              17
        There was no error in the trial court‘s failure to hold a hearing, or rule on, Caldwell‘s

motion for new trial. We overrule Caldwell‘s second point of error and affirm the trial court‘s

judgment and sentence.




                                                     Bailey C. Moseley
                                                     Justice




Crim. App. 1996) (State could not create a false impression on cross-examination in order to open door to extraneous
act evidence).

                                                        18
                                    DISSENTING OPINION

       The jury was not allowed to hear that Johnny Ward shot at a group including Greg Thomas,

a few days before this incident. Thomas had identified Ward as the shooter and had given such a

statement to the police. Both the original aggravated assault and the murder occurred a few days

apart near the same place. So at the time Thomas was killed, he was the eyewitness for an

aggravated assault for which Ward was arrested. If Thomas were not available, Ward would be

the beneficiary. According to Taylor, within ten minutes Ward was seen a few blocks from the

scene of the murder. The jury heard none of this, but only heard that Ward was brought in and

questioned for this murder, but was released.

       It is unclear when the ―Able Term‖ entry was made (which inaccurately stated that Ward

was charged with this murder). But, if this evidence had been admitted, a strong argument could

have been presented that at the time the notation was entered, a representative of the District

Attorney‘s Office (the admitted source of the entry) believed that Ward was not prosecuted for the

aggravated assault because he had been charged with the murder of ―the only witness in this case‖

(Thomas).

       Caldwell should have been allowed to present this evidence showing the connection of

Ward to Thomas and the fact that a representative of the District Attorney‘s Office had at one time

believed that the only reason Ward was not charged for the first assault was that he had been

charged with the murder of Thomas.


                                                19
       These facts are completely different from cases such as Dickson, where the excluded

evidence was a comparison of photographs and judgments of prior offenses. In Wiley, the

defense admitted the person proposed as the alternate perpetrator was too simple to plan and

execute an elaborate arson even though he had recently been in and around the property.

       The Texas Court of Criminal Appeals has determined that alternative perpetrator evidence

is inadmissible unless a nexus is shown between the crime charged and the alleged alternative

perpetrator. A nexus is a connection. The evidence here reveals a sufficient nexus to allow this

evidence to be presented.

        Since the evidence was relevant, it should be admitted unless the prejudicial effect

substantially outweighs its probative value. TEX. R. APP. P. 403. The trial court found that to

allow this evidence would require a mini-trial of the aggravated assault charge and cause

confusion. I see no reason for a mini-trial on the assault charge; the identifying witness was dead.

The pertinent issue is not whether Ward was in fact guilty of the previous assault charge, but that

Thomas had identified him as the assailant, that Ward was in the area where it occurred, and at one

time, a representative of the District Attorney‘s Office thought the charge for assault had not been

pursued against Ward because he (Ward) murdered the eyewitness (Thomas). I do not find this

evidence to be unfairly prejudicial. The majority opinion supports its conclusion by observing

that the trial court cited Taylor‘s contrary testimony that Ward was not the murderer for its

decision to exclude Caldwell‘s proffer. The fact that contrary evidence is presented cannot be a



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determining factor in the decision to exclude evidence; it was the function of the jury to consider

this evidence together with the State‘s evidence of guilt, resolve any conflicts, and then make its

determination.

       Finally, the court should examine if the error was harmful. First, it must be determined if

this error was one of a constitutional violation. Exclusion of evidence may be a constitutional

violation if (1) a state evidentiary rule categorically and arbitrarily prohibits the defendant from

offering relevant evidence that is vital to the defense; or (2) when a trial court erroneously excludes

relevant evidence that is a vital portion of the case and the exclusion effectively precludes the

defendant from presenting a defense. Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005)

(citing Potier v. State, 68 S.W.3d 657, 659–62 (Tex. Crim. App. 2002); Wiley v. State, 74 S.W.3d

399, 405 (Tex. Crim. App. 2002)). Here, only the second category is involved.

       Was Caldwell precluded from presenting a defense on a vital portion of the case?

Evidence was introduced by the State that Ward, along with another, was brought in after the

murder for questioning. This was portrayed as being ―common‖ to bring in ―everybody they

can.‖ Gunshot residue was taken from Ward, at which time Ward inquired as to how long residue

would remain on the hands. Ward was ―fully cooperative.‖ On cross-examination, it was

established that Ward was found at a convenience store somewhere close to the scene of the

murder. Caldwell testified, but had no evidence concerning Ward‘s possible involvement in the

murder.



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       This evidence does not present Caldwell‘s evidence of Ward‘s possible involvement in the

murder. It was portrayed as routine police investigation that in effect cleared any consideration of

Ward as the perpetrator. The evidence that would have been vital to this defense was the fact that

Thomas had identified Ward as the assailant in the previous aggravated assault and that at one

time, a representative from the District Attorney‘s Office thought Ward had been charged with the

murder of Thomas. The erroneous exclusion of evidence prevented Caldwell from presenting his

only real defense––that Ward, who was near the scene of the murder, had a strong motive in the

demise of Thomas. Consequently, this is error of a constitutional nature, and we must reverse

unless it is determined beyond a reasonable doubt that the error did not contribute to the conviction

or punishment. TEX. R. APP. P. 44.2(a).

       Without the jury hearing any inculpatory evidence concerning Ward, it was permitted to

hear that the investigating officers had cleared him of any wrongdoing. To determine, beyond a

reasonable doubt, that the exclusion of this evidence would not contribute to the conviction, we

must be assured the jury would not believe this proffered evidence linked Ward to the murder.

While no one can ever know what a jury would have done if provided with other evidence, the trial

court‘s ruling prevented the jury from even considering this relevant evidence. I do not think it is

reasonable to conclude, beyond a reasonable doubt, the error did not contribute to the conviction.

The judgment should be reversed for a new trial.




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      I respectfully dissent.




                                           Jack Carter
                                           Justice


Date Submitted:       September 28, 2011
Date Decided:         October 21, 2011

Publish




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