Appeal Affirmed and     Opinion   Filed November 28, 2012.




                                               In The
                                      (ourt of ppat
                           jfittfj ttrict of txa at atta
                                       No. 05-i 1-01088-CR

                          COREY DEWAYNE GLADNY, Appellant

                                                 V.

                               THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 3
                                   Dallas County, Texas
                            Trial Court Cause No. F10-59543-J


                              MEMORANDUM OPINION

                          [3elhre Justices Moseley. Fillmore, and Myers
                                   Opinion By Justice Moseley

          A jury found appellant Corey Dewayne Gladney guilty of murdering Aaron Alexander

and assessed punishment at forty-five years’ imprisonment. Gladney appeals. In his first issue,

he argues the trial court erred by allowing a witness to testify about an anonymous phone tip she

received. In his second and third issues he argues the trial court erred by refusing to allow him to

cross-examine the mother of the victim regarding the victim’s criminal history at the

guilt/innocence phase and at the punishment phase of the trial. The background of the case and

the evidence adduced at trial are well known to the parties; thus, we do not recite them here in

detail.   Because all dispositive issues are clearly settled in law, we issue this memorandum
opinion pursuant to Texas Rule of Appellate Procedure 47.1.          We aflinn the trial court’s
judgment.

                                          Background
       There is evidence in the record that Alexander was sitting in his vehicle in the crowded

parking lot of a shopping center when Gladney approached his vehicle and fired a handgun into

it. Alexander attempted to drive his vehicle to safety but crashed into another car in the parking

lot Alexander then attempted to escape on foot but was shot several more times by Gladney in

front of many witnesses.

       Gladney fled the scene in the vehicle of Sylvester Spicer. The State presented evidence

from Detective Mary Brady who, over Gladney’s objection, testified that she had received an

anonymous phone call claiming that Spicer had disposed of the handgun used in the murder

while he was selling his vehicle in Houston.

                                               Hearsay
       In his first issue, Gladney argues that the trial court erred by admitting Brady’s hearsay

testimony concerning the contents of the anonymous phone call.

       Assuming without deciding that the trial court erred by admitting Brady’s testimony

about the anonymous caller’s statements, such an error would be non-constitutional error; thus,

we must disregard it unless it affected an appellant’s “substantial rights.” flx. R. An. P.

44.2(b); see, ag., Dorado v. State, 843 S.W.2d 37,38 (Tex. Crim. App. 1992) (requiring a non-

constitutional harm analysis for hearsay statements incorrectly admitted as exceptions under

article 38.072). An error affects a substantial right “when the error had a substantial and

injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266,

271 (Ta. Crim. App. 1997). Thus, we affirm a criminal conviction despite non-constitutional

erroriiafterexaminingtherecordasawhole,weareleftwiththefairassurancethattheerror


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did not influence the jury or influenced the Jury only slightly. Schulz v. Stare. 63 S.W.3d 442,

444 (Thx, Crim. App. 200!) (citing Morales       i.   State, 32 S.W.3d 862, 867 (Tex. Crim. App.

2000) and   .fohnson 5’tit’   967 S.W.2d 410, 417 (Tex. Crim. App. 1998)); see also 0 ‘iVeal v.

McAninch, 513 U.S. 432, 438 (1995) (error must be treated as harmful if “grave doubt” exists as

to whether it had a “substantial and injurious effect or intluence” upon the jury). We analyze the

whole record to determine if the trial court’s error had no effect or oniy a slight effect on the

jury’s decision. Schutz, 63 S.W.3d at 444. Our analysis goes beyond the fact that the jury’s

credibility determinations had an impact on its verdict, Id. at 445. We consider all the evidence,

the nature of the evidence supporting the verdict, and the character of the error and its

relationship to other evidence to determine if the error substantially affected an appellant’s

rights. Morales, 32 S.W.3d at 867.

       In the present case, the evidence at issue concerned the location and possible means of

disposal of the handgun allegedly used to kill Alexander. Certainly, being unable to produce the

alleged murder weapon may create some doubt in the mind of the jury, and offering an

explanation for its inability to present the weapon at trial may have helped the State assuage that

doubt. Here, however, the other evidence showing (iladney’s guilt is overwhelming and renders

the State’s inability to produce the murder weapon trivial. Three separate witnesses identified

Gladney as the shooter. The testimony of one of these eye-witnesses was corroborated by a

video he was recording prior to and during the shooting.        That same witness also identified

Gladney as the shooter from a surveillance tape recorded by a business located adjacent to the

crime scene.

       Given the relative insignificance of the evidence about the anonymous phone call in

comparison to the weight of the properly admitted evidence that Gladney was the shooter, we

conclude that the complained-of hearsay evidence had no effect or only a slight effect on the
jury’s decision. Because appellant’s substantial rights were not affected by any error the trial

court may have made by admitting Brady’s testimony about the anonymous phone call, we

overrule appellant’s first issue. See TEx. R. APP. P. 44.2.

                                       Cross-Examination

        In his second and third points of error, Gladney argues the trial court erred by not

allowing him to cross-examine Alexander’s mother, Antwonette Alexander Charles, regarding

Alexander’s criminal history during the guilt/innocence and punishment phases of the trial.

         The State called Charles at the guilt/innocence phase of the trial.        During cross
examination, Gladney’s counsel asked three questions regarding Charles’s knowledge of the

shopping center where the shooting occurred and then asked to approach the bench, After an

off-the-record discussion, Gladney’s counsel passed the witness.

        Following a finding of guilt, Charles was again called during the punishment phase of the

trial. After the State passed the witness, Gladney’s counsel again approached the bench for an

off-the-record conversation. Following this conversation he passed the witness.

       At the end of the punishment phase of the trial, Gladney made an otTer of proof out of the

jury’s presence. Flis counsel put on the record that he had approached the bench and requested

that he he allowed to cross-examine the victim’s mother regarding a number of issues, including:

whether or not Alexander had drug money in his pockets at the time of the shooting, whether

Alexander was associating with other people who were drug dealers and might potentially have

been suspects, whether Alexander was a “convicted felon that was a drug dealer,” and whether or

not Alexander was dealing drugs at the time of the murder. The stated purpose of this offer was

to preserve a Sixth Amendment claim at the guilt/innocence phase of the trial and to prevent the

State from presenting a false impression of the victim’s character at the punishment phase.
         Regarding his second issue—his complaint about limited cross-examination during

guilt/innocence—Giadney has preserved nothing for our review. The Texas Rules of Appellate

Procedure require that in order to preserve error, an offer of proof must be made before the

reading of the jury charge. TEx. R. App. p. 33.1(a). Gladney did not make the otThr of proof

until the end of the punishment phase of the trial, well after the jury charge was read for the

guilt/innocence phase. Because Gladney’s offer of proof was not made in a timely fashion, he

has preserved nothing for our review. See it As such, we overrule Gladney’s second issue.

         In his third issue, Gladney argues the trial court erred by refusing to allow him to cross-

examine Charles regarding Alexander’s criminal history during the punishment phase of the trial.

He argues that when Alexander’s mother testified that he had a      — heart and was beloved by
his family she “opened the door” for Gladney to present evidence that he was not law abiding.

         The trial court has great latitude “to impose reasonable limits on cross-examination based

upon concerns about, among other things, harassment, prejudice, confusion of issues, and the

witness’s safety.” Virts v. State, 739 S.W.2d 25. 28 (Tex. Crim. App. 1987). We review a trial

court’s ruling on the admissibility of evidence under an abuse of discretion standard.

Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991)
                                                                (op. on reh’g). As long as
the thai court’s ruling was at least within the zone of reasonable disagreement, the appellate

court will not intercede. It at 391; see Mitchell v. State, 931 S.W.2d 950,953 (Tex. Crim. App.

1996) (noting standard of review on admissibility of evidence at punishment phase is abuse of

discretion).

         In a non-capital felony trial, evidence is admissible during the punishment phase if the

court deems it relevant to sentencing. Hayden v. State, 2% S.W.3d 549, 552 (Tex. Crim. App.

2009).    Evidence is relevant during the punishment phase if it will help the factfinder decide the

appropriate sentence for a particular defendant given the facts of the case. See id.; Rogers v.


                                                —5-
State, 991 S.W.2d 263. 265 (Tex. Crim. App. 1999). Victim character evidence is admissible

during the punishment phase if the fhctfinder “may rationally attribute the evidence to the

accused’s personal responsibility and moral culpability.” Hayden. 296 S.W.3d at 552 (internal

quotation marks omitted). However, evidence that is useful only to draw a comparison between

the victim and other members of society based on the victim’s worth “should usually be

cxcluded under rule 403.” Id.; Macley v. State, 983 S.W.2d 249, 262 (Ta. Crim. App. 1998).

Evidence that Alexander was a drug dealer would therefore be irrelevant and inadmissible if

offered to show that his lifb was less valuable than other members of society.

         However, evidence that is otherwise inadmissible may become admissible when a party

opens the door to such evidence. See Renteria      i’.   State, 206 S.W.3d 689, 697—98 (Tex. Crim.

App. 2006); Griffin v. State. 787 S.W.2d 63.67 (Tex. Crim. App. 1990). A party opens the door

by leaving a false impression with the jury that invites the other side to respond. Daggett v.

State. 187 S.W.3d 444, 452 (Ta. Crim. App. 2005). But even if a party opens the door to

rebuttal evidence, the trial judge still has the discretion to exclude the evidence under Rule 403.

See Wheeler v. State. 67 S.W.3d 879, 886 (Ta. Crim. App.: 2002); Martinez v. State, 17 S.W.3d

677, 687 (Ta. Crim. App. 2000).         Courts generally prohibit a party from using extrinsic

evidence to impeach a witness on a collateral issue. Daggett, 187 S.W.3d at 454 n.24. An issue

is collateral if, beyond its impeachment value, a party would not “be entitled to prove it as a part

of his case tending to establish his plea.” Bates v. State, 587 S.W.2d 121, 141—42 (Ta. Crim.

App. 1979) (opinion on reh’g) (internal quotations omitted). Unless the witness’s testimony

created a false impression that is “directly relevant to the offense charged,” allowing a party to

delve into the issue beyond the limits of cross-examination wastes time and confuses the issues.

Hayden, 2% S.W.3d at SM; Daggett, 187 S.W.3d at 454 n.24; Bates, 587 S.W.2d at 142.




                                               -6-
         1-lere. the trial court was well within its discretion to limit cross-examin
                                                                                      ation of Charles.
 Alexander’s status as a drug dealer was a collateral issue it was not relevan
                                                                               t to the jury’s
assessment of the appropriate sentence to impose on Gladney. Likewise. Alexan
                                                                              der’s status was
not directly relevant to the charged crime, murder. Inasmuch as it was relevan
                                                                               t, it would only be
relevant for the impermissible purpose of comparing the victim’s worth to that
                                                                               of other members
of society. Allowing Gladney to impeach the victim’s character with extrins
                                                                            ic evidence would
waste time and confuse the issue by focusing the jury’s attention on the victim
                                                                                ’s character rather
than the defendant’s personal responsibility and moral culpability. Thus, it
                                                                             was within the trial
judge’s discretion to exclude the evidence under Rule 403. See hayden
                                                                      , 296 S.W.3d at 554—55.
Therefore, we overrule Gladney’s third issue.

         Based on our disposition of Gladney’s three issues, we affirm the judgm
                                                                                 ent of the trial
court.




Do Not Publish
TEX. R. App. P. 47
11 l088F.U05




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                              øitrt nf Apprata
                      .fiftI Jitrict iif t!cxw at a1Ia
                      1

                                     JUDGMENT

No. 05-11-01088-CR                              Appeal from the Criminal District Court
                                                No. 3 of Dallas County, Texas (Trial Court
GLA1)NEY, COREY DEWAYNE,                        No. F 10-59543-i).
Appellant                                       Opinion delivered by Justices Moseley.
     V.                                         Fillmore, and Myers.
THE STATE OF TEXAS, Appellee

      B’ised on the Couit’s opinion of this datc the judgment octhe trial couris AFFiRMED

Judgrncnt entercd Novembci 28 2012
                                                                /                7



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