                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00265-CR


CARLOS CARROLL                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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      FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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                                  Introduction

      Appellant Carlos Carroll appeals his conviction for assault bodily injury.

See Tex. Penal Code Ann. § 22.01(a)(1) (West 2011). In a single issue, he

contends that the trial court erred by admitting an audio recording of oral

statements he made to a detective during a jailhouse interview because the State



      1
      See Tex. R. App. P. 47.4.
did not give him adequate notice of its intent to offer the recording during guilt-

innocence at trial. We affirm.

                   Background Facts and Procedural History

      Grand Prairie Police Officer Edward Bylotas met Tamikko Fields during a

family-violence call on July 7, 2010. Fields “had definitely been battered”––she

had cuts, scratches, swollen eyes, a busted lip, and abraded knees. She said

that Appellant had caused her injuries.

      On July 12, Fields hand-wrote a sworn account of the assault and gave it

to Detective Heath Wester. She also completed a hand-written, family-violence-

victim statement, identifying Appellant as her sole attacker. Detective Wester

obtained a warrant for Appellant’s arrest on July 14.

      On November 22, Appellant ran a stop sign and was arrested on the

warrant.   Detective Wester interviewed him while he was in custody.           The

interview was electronically recorded, but the recording was not forwarded to

Appellant’s lawyer until the Friday before trial, having been turned over to the

district attorney’s office less than two weeks earlier.

      During his opening remarks at trial, Appellant’s lawyer told the jury:

            The evidence will show and the State will not be able to
      produce any evidence that the police ever talked to Carlos
      [Appellant]. They knew where he was; Tamikko knew where he
      was; but no one ever talked to him.

            That’s a failure of investigation. There was never an effort to
      go find these other two gentlemen [who Appellant claimed
      committed the assault], even after the State knew about it. It’s their
      burden.


                                          2
              ....

            But the police officers, the State, and all the other people that
      are involved in the process of investigating this did not do their job.
      The person who’s actually guilty of assault that they are talking
      about is not in this courtroom today, and we don’t even know where
      they are.

      Officer Bylotas testified that on July 7, Fields told him that Appellant had

become angry when she picked him up late from work and had started hitting her

as she drove him home. She also told Officer Bylotas that when she stopped the

car to fight back, Appellant got out, ran around to the driver’s side, pushed her

over into the passenger side, and drove to his apartment complex. There, he

dragged her from the car, threw her to the ground, punched her in the face, and

kicked her.

      The State subpoenaed Fields and she testified––reluctantly––confessing

that she did not want to be there. She testified that she had been drinking on the

day that she arrived late to pick up Appellant from work, that he climbed into the

back seat behind her, and that she started an argument with him and tried to

punch him in the leg. Then he hit or pushed her in the back of the head, which

did not hurt her but “ticked [her] off” and caused her to swerve and step on the

brake. She did not remember him hitting her again in or out of the car. She also

testified that after she dropped Appellant off at his apartment, she “got into it”

with one of “two black dudes” in the parking lot, that one of them may have

beaten her, but that she experiences “blackouts” when she drinks and she was

too drunk at the time to remember.


                                        3
      This testimony differed from what she told Officer Bylotas at the scene,

and Fields acknowledged that it also differed from the sworn, hand-written

statement she gave to Detective Wester within a week of the incident. In that

report, she stated that Appellant “struck” her on the right side of her face “with his

fist” four or five times, “punched” her on the left side of her head, “snatched” her

from her car, “bashed” her head on the car several times, “dragged” her on the

ground while “punching” her in the face and head, “kicked [and] stomped” her on

the left side of her body numerous times, called her names “as he kept stomping

[and] punching [and] dragging” her, and finally left her “lying on the ground in a[n]

ant bed.” Although at trial Fields persistently denied remembering who caused

the multiple injuries that she described in her written statement and that were

depicted in numerous photographs admitted at trial, she conceded that those

injuries caused her considerable pain.

      On the next day of trial, the State offered State’s Exhibit 15, a compact-

disc recording of Appellant’s jailhouse interview with Detective Wester. Outside

the presence of the jury, the prosecutor explained to the trial court that originally

he had not planned to offer the exhibit, but had changed his mind after

Appellant’s opening statement and had decided that he needed it to counter

Appellant’s remark that the police never talked to him.         After reviewing the

reporter’s notes, the trial court concluded that Appellant had opened the door,

and it overruled the objection but granted a running objection.




                                          4
       Detective Wester testified that he met Fields at the police station on July

12, five or six days after the offense. He was aware that she had gone to the

hospital for her injuries the night of July 7th and noted that when he saw her on

July 12th, she was still “very sore, bruised up, still complaining of pain.” He saw

no signs that she had been drinking, though, and aside from her numerous

injuries, she “looked perfectly normal.” He testified that after he compared her

written statements with those recorded in Officer Bylota’s offense report, he

obtained a warrant for Appellant’s arrest.

       The detective also testified that Appellant was arrested and interviewed in

November. State’s Exhibit 15 was admitted and published to the jury. On it,

Appellant explained to Detective Wester that he and Fields had a physical

altercation, in which he shoved the back of her head after she attacked him, but

that he did not cause any of the injuries she sustained that night. Appellant

explained that she engaged two other men after dropping him off at his

apartment, and he opined that they must have beaten her. Detective Wester

telephoned Fields to confirm Appellant’s account about the two other men; she

said “it was all a lie.”

       Appellant testified in his own defense “to clear [his] name.” He admitted

that he shoved Fields in the back of the head with an open hand but only to stop

her from wildly swinging her fist at his face and legs while she was driving. He

denied causing her any injury.




                                         5
       The jury found Appellant guilty of assault, and the trial court sentenced him

to 140 days in the county jail.

                                    Discussion

       Article 38.22, section 3(a) of the code of criminal procedure provides, in

pertinent part, that no electronic recording of an oral “statement of an accused

made as a result of custodial interrogation shall be admissible against the

accused in a criminal proceeding unless . . . not later than the 20th day before

the date of the proceeding, the attorney representing the defendant is provided

with a . . . copy [of the recording].” Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)

(West 2005). Subsection (e) directs that “[t]he courts of this state shall strictly

construe Subsection (a) . . . and may not interpret [it] as making admissible a

statement unless all requirements of the subsection have been satisfied by the

state.” 2 Id. § 3(e).

       Appellant contends that the trial court erred by admitting State’s Exhibit 15

because the State gave him inadequate notice that it intended to offer it. The

State agrees that Appellant did not have twenty days’ notice as required by the

statute, but argues that Appellant opened the door to the exhibit when his lawyer

asserted that the police never talked to him.

       2
       There are two listed exceptions to Subsection (e) that do not apply in this
case. See id. § 3(e)(1),(2); see also Thai Ngoc Nguyen v. State, 292 S.W.3d
671, 681 (Tex. Crim. App. 2009) (“[W]e hold that the express language of Article
38.22 does not include an exception for statements that are not confessional in
nature, do not implicate the accused for the offense prosecuted, or constitute an
offense.”).


                                         6
      This case reveals some tension between the long-standing doctrine known

as “opening the door” and a statutory exclusionary rule.         The former allows

admission of otherwise inadmissible evidence when a party “opens the door” to

it. See, e.g., Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009). The

latter, by express directive, must be strictly construed. Tex. Code Crim. Proc.

Ann. art. 38.22, § 3(e).

      Typically, a trial court’s decision admitting evidence is reviewed for an

abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.

2011); Montgomery v. State, 810 S.W.2d 372, 379–80 (Tex. Crim. App. 1990).

That standard requires affirming the trial court’s ruling so long as it is within the

zone of reasonable disagreement. Tillman, 354 S.W.3d at 435; Montgomery,

810 S.W.2d at 391.

      We hesitate to apply an abuse of discretion standard in this case. First,

neither party suggests that is the standard of review, although both agree that

State’s Exhibit 15 came in against the plain language of article 38.22. 3 Second,

although abuse of discretion is regularly applied in cases holding that the open-

door doctrine trumps evidentiary rules, 4 the State has not directed us to, nor have


      3
        Appellant argues that the standard of review is the harm analysis set out
in rule of appellate procedure 44.2(b). The State agrees that 44.2(b) controls the
harm analysis but asserts that we do not reach harm because even though the
evidence came in contrary to plain language of the statute, the open-door
doctrine essentially trumps the statute.
      4
      See, e.g., Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009)
(assuming evidence inadmissible under rule 404(b), and holding no abuse of

                                         7
we found, any case on all fours with this one––that is, an on-point instance of a

reviewing court applying abuse of discretion to a trial court’s admission of

evidence that both sides agree came in despite the plain language of a statute,

specifically, article 38.22 of the code of criminal procedure. And regarding the

subject of plain language, third, the statute expressly directs that we “shall strictly

construe” its exclusionary rule and “may not interpret” it to make a statement

admissible “unless all requirements of the subsection have been satisfied by the

state” (with two exceptions that do not apply in this case). See Tex. Code Crim.

Proc. Ann. art. 38.22, § 3(e). Finally, the court of criminal appeals has plainly

stated: “Essentially, the defendant has the right to prevent the trial court from

considering the admissibility of the oral confession until twenty days after a copy

of the recording is provided.” Sells v. State, 121 S.W.3d 748, 764 (Tex. Crim.

App.) (emphasis added), cert. denied, 540 U.S. 986 (2003). Although this is




discretion because appellant opened the door), cert. denied, 130 S. Ct. 3411
(2010); Hayden, 296 S.W.3d at 554 (holding that even though State opened the
door, trial court acted within its discretion to exclude rebuttal evidence under rule
403); Powell v. State, 63 S.W.3d 435, 439–40 (Tex. Crim. App. 2001) (reversing
court of appeals for erroneously holding trial court abused discretion to admit rule
404(b) evidence when appellant opened the door); Green v. State, 934 S.W.2d
92, 101 (Tex. Crim. App. 1996) (applying abuse of discretion standard to decide
whether appellant opened the door to 404(b) extraneous offense evidence), cert.
denied, 520 U.S. 1200 (1997). But see Bowley v. State, 310 S.W.3d 431, 437
(Tex. Crim. App. 2010) (Price, J., dissenting) (“assuming the rule [Texas Rule of
Evidence 410(4)] applies here, the prosecutor’s question was objectionable even
if the appellant’s line of questioning otherwise ‘opened the door’ to admission of
any other relevant impeachment evidence.”).


                                          8
probably dicta in Sells, it strongly suggests that “shall strictly construe” means

“shall strictly construe.”

       If that suggestion is true, then the standard of review is not abuse of

discretion, but something else––presumably de novo––because if a trial court

cannot consider whether evidence is admissible, then logically it has no

discretion to admit it. It therefore follows that cases in which appellate courts

have permitted trial courts in their discretion to admit otherwise inadmissible

evidence through opened doors would not govern in a case such as this one

where the legislature has withheld a trial court’s discretion to admit evidence

unless certain statutory requirements are met.

       On the other hand, if the standard of review is abuse of discretion, and the

trial court could, within its discretion, admit the entire exhibit because Appellant’s

lawyer told the jury that the police never talked to his client, we are not convinced

that the ruling would fall within the zone of reasonable disagreement. First, we

question the prosecutor’s assertion to the trial court that he needed the audio

recording to “combat” Appellant’s claim that the police never talked to him. The

State argues in its brief that defense counsel’s blanket assertion that there was

no evidence that the police ever talked to Appellant “called out for correction” by

admitting the contents of the exhibit, that is, all of Appellant’s statements

recorded therein. We disagree. Certainly, the detective could have testified to

the contrary without disclosing the content of Appellant’s statements.




                                          9
      Second, even if the State needed a portion of the statements recorded on

the exhibit, we question whether it needed the whole thing. Surely, a small slice

of the recording––enough to identify the detective and Appellant as the ones

talking to one another––would have sufficiently rebutted Appellant’s assertion

that he and the police never talked. “[O]therwise inadmissible evidence may be

admitted if the party against whom the evidence is offered ‘opens the door.’ But,

the party offering the evidence may not ‘stray beyond the scope of the invitation.’”

Schutz v. State, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997) (quoting Bush v.

State, 773 S.W.2d 297, 301 (Tex. Crim. App. 1989)).

      Third, an apparent inconsistency in the record between the explanation the

prosecutor gave to the trial court and the one he later gave to the jury during

closing argument undermines the State’s claim that before Appellant’s opening

statement the State “had no intention to offer” the exhibit.           Early on, the

prosecutor told the judge that he had not intended to offer the exhibit until he

heard Appellant’s opening statement and that his “purpose in offering it” was “to

combat the opening statements of the Defense counsel in saying that [the State]

made no attempt to speak with the defendant when [it] did.”           During closing

argument, though, the prosecutor told the jury,

      The reason -- one of the main reasons, the defendant’s statement.
      We want you to see it. We want you to hear it. Not only does he
      admit to hitting her . . . . But it puts him at the scene, no doubt. . . .
      All the elements he admits to, other than the fact he says either I hit
      her back, and it was justified, because it’s self-defense, or it didn’t
      hurt her . . . .



                                         10
The earlier explanation given to the trial court aligns with the State’s claim that it

originally never intended to offer the exhibit, but the explanation to the jury does

not. To the contrary, it suggests intent to offer the exhibit all along.

      But even assuming without deciding that the trial court erred by admitting

the exhibit, after examining the record as a whole, we have fair assurance that

the ruling did not have a substantial and injurious effect or influence in

determining the jury’s verdict; in other words, it did not affect Appellant’s

substantial rights, so we must disregard it. See Tex. R. App. P. 44.2(b); Coble v.

State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 3030

(2011); Woods v. State, 152 S.W.3d 105, 118 (Tex. Crim. App. 2004), cert.

denied, 544 U.S. 1050 (2005); Sells, 121 S.W.3d at 764 (“Because a violation of

§ 3(a)(5) is statutory, the appropriate harm analysis is the standard found in Rule

44.2(b).”).

      It is undisputed that Fields was severely beaten by someone and that

someone caused her considerable injuries. Appellant’s counsel pointed out that

“somebody beat her up pretty bad,” describing her injuries as “incredible” and

noting that they included fractured ribs and caused her “a lot of pain.” Fields

originally told the police that Appellant caused the multiple obvious injuries that

Officer Bylota observed when he responded to the 911 call. Yet she testified at

trial that she had been so drunk that day that someone else might have

assaulted her. Her testimony largely followed the version that Appellant gave




                                          11
Detective Wester and that was recorded on the exhibit Appellant claims the trial

court reversibly erred by admitting.

      The improper admission of evidence is harmless if the same or similar

evidence is admitted without objection at another point in the trial. Estrada v.

State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct.

905 (2011); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“An

error [if any] in the admission of evidence is cured where the same evidence

comes in elsewhere without objection.”); Stewart v. State, 221 S.W.3d 306, 312–

13 (Tex. App.––Fort Worth 2007, no pet.) (holding harmless trial court’s error in

admitting document because evidence had already been admitted without

objection). The most damning of Appellant’s admissions in State’s Exhibit 15

was, as the prosecutor argued during closing argument, that he hit Fields in the

back of the head.     But this evidence had already come in without objection

through Officer Bylotas, Detective Wester, and Fields.

      Appellant argues that the exhibit harmed him because its admission

“forced” him to modify his defense strategy and testify and because the jury did

not believe him.    We reject the notion that the trial court somehow “forced”

Appellant to testify or otherwise caused him harm. To the contrary, Appellant

explained to the jury that he wanted to “testify as an opportunity to clear [his]

name.”

      We also reject the notion that Appellant was harmed because the jury did

not believe him when he did testify after the trial court admitted his earlier


                                       12
statement to police.     One of his defensive theories was that he was not

responsible for the serious injuries depicted in the photographs admitted at trial.

If he was guilty at all, he argued, it was of only Class C misdemeanor simple

assault without bodily injury. The record shows that he and Fields were the only

sources from which Appellant might develop this theory. And the record shows

that Fields did not produce much to develop it. That left it up to Appellant. What

he said in the interview to Detective Wester was actually rather consistent with

this theory and with the testimony he gave at trial. We decline the invitation to

hold that Appellant suffered harm from the admission of an exhibit that arguably

promoted one of his defensive theories.

      Moreover, the record shows that Appellant’s primary defensive theory was

that Fields was the first aggressor and he responded only in self-defense.

According to Appellant, although he hit, pushed, or shoved her in the back of the

head, he did so only once to stop her flailing her fists back into his face and legs.

Self-defense usually accompanies a defendant admitting the elements of the

offense while presenting evidence that they were justified. See Juarez v. State,

308 S.W.3d 398, 401–02 (Tex. Crim. App. 2010) (“[A] defendant must admit to all

elements of a charged offense before the defendant will be entitled to a

defensive instruction. . . . [on] self-defense.”). So, given his primary defensive

theory, Appellant could not have been harmed by his admission that he hit Fields

in the back of the head because it was an essential element of self-defense.




                                         13
                                     Conclusion

      After reviewing the entire record, we conclude that any error in admitting

the audio-taped interview was harmless. See Sells, 121 S.W.3d at 765; Hailey v.

State, No. 02-10-00247-CR, 2012 WL 4936655, at *8 (Tex. App.––Fort Worth

Oct. 18, 2012, pet. ref’d). Accordingly, we overrule Appellant’s sole issue and

affirm the trial court’s judgment.



                                                  ANNE GARDNER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

LIVINGSTON, C.J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 6, 2013




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