Collins v. State

Full title: AMBER RENEE COLLINS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Mar 13, 2003

No. 14-02-00523-CR (Tex. App. Mar. 13, 2003)

Opinion

No. 14-02-00523-CR.

Opinion Filed March 13, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).

Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 881,465. Affirmed.

Before Chief Justice BRISTER and Justices FOWLER and EDELMAN.

MEMORANDUM OPINION

SCOTT BRISTER, Chief Justice.

A jury found appellant guilty of indecency with a child and, after assessing punishment at nine years' confinement, recommended a suspended sentence and community supervision. The facts of this appeal are known to the parties, so we do not recite them here. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See TEX R. APP. P. 47.1. We affirm.

Impeachment

Appellant's first two points of error concern her counsel's attempt to impeach the complainant with a prior statement made during the trial of Robert Phillips, her husband.¹ Rule 613 of the Texas Rules of Evidence prohibits extrinsic evidence of an inconsistent statement unless the witness denies it:

In examining a witness concerning a prior inconsistent statement made by him, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to him at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. . . .

TEX. R. EVID. 613(a). The rule requires three elements as a predicate for admission: identification of the statement (by time, place, and person), a summary of the contents, and a denial by the witness as to what the statement contains. Here, counsel identified the statement, and then proceeded to try to read it to the witness and the jury, with no summary or opportunity (until after it was read) for her to admit or deny it. Thus, the trial court correctly sustained the prosecutor's objection. Moreover, appellant has made no showing of harm. After the objection was sustained, a transcript containing the testimony was admitted when the prosecutor waived any objection.² Appellant has not shown what questions or testimony have been excluded. See TEX. R. EVID. 103; TEX. R. APP. P. 33.2. We thus overrule appellant's first two points of error. See TEX. R. APP. P. 44.2(a).

Prosecutorial Misconduct

In her final point of error, appellant contends the prosecutor engaged in prosecutorial misconduct be suggesting to the complainant that her testimony about appellant's innocence in the prior trial related to an entirely separate matter. As it is difficult to parse all of the complainant's testimony, it is not entirely clear that the two are inconsistent. But assuming they are, appellant has not proven the prior statement was true and the second was not, or that the prosecutor knew that to be the case. Further, no objection was made at the time. Thus, we overrule this point. The judgment is affirmed.