
                                          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
child[1] and was sentenced to two consecutive eighteen year  sentences.[2]   In  a  single  point  of
error, Appellant asserts the trial court  violated  his  right  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?

      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 "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.

                                          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, 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 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  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.
-----------------------
[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.

[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.

[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.

[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).



