Opinion
No. 08-15-00370-CR
03-16-2018
KEENAN NOVON ANDERSON, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the 252nd District Court of Jefferson County, Texas (TC# 13-17039) OPINION
Appellant was convicted by a jury of one count of murder with a firearm, and was sentenced to twenty years in prison. On appeal, Appellant contends (1) that the prosecutor made an improper comment during his opening statement that violated his Fifth Amendment right to remain silent, and (2) that the trial court erred by admitting a videotaped interview that a witness had with police, which Appellant contends contained inadmissible hearsay and violated his Sixth Amendment right to confront witnesses. For the reasons that follow, we affirm.
This appeal was transferred from the Beaumont Court of Appeals, and we apply the precedent of that court to the extent required by TEX. R. APP. P. 41.3.
FACTUAL SUMMARY
Appellant, also known as "Cheese," was indicted for murder in the gang-related shooting death of Marcus Senegal, also known as "Big Country." At trial, several witnesses testified about the existence of a long-standing rivalry between members of a gang affiliated with the west side of Port Arthur and those affiliated with the east side of the city, which sometimes resulted in physical violence between the two groups. Senegal was affiliated with the east side of Port Arthur, while Appellant was affiliated with the west side.
The two-paragraph indictment alleged alternative manners for commission of the offense. The first alleged that Appellant "did then and there with intent to cause serious bodily injury, commit an act clearly dangerous to human life, namely: shoot a deadly weapon, namely: a firearm, at individuals, to wit: ANTHONY RAY BENJAMIN AND/OR TODD SMALL, thereby causing the death of an individual, namely MARCUS SENEGAL[.]" The second paragraph alleged that Appellant "did then and there intentionally and knowingly commit and attempt to commit a felony, namely Deadly Conduct, and in the course of and in furtherance of the commission of the felony, the Defendant did commit an act clearly dangerous to human life, namely: shoot at and in the direction of individuals, to wit: ANTHONY RAY BENJAMIN and/or TODD SMALL, with a deadly weapon, namely: a firearm, thereby causing the death of an individual, to wit: MARCUS SENEGAL[.]"
The shooting occurred in what was considered a neutral area of the city, at the dividing line between the east and west side, where two night clubs, the Old School Shack and Tiffany's nightclub, were located in close proximity to each other. Those present at the time of the shooting recalled that it occurred in the early morning hours when the clubs were closing, and that a large crowd was milling about in the street outside the clubs.
At least three witnesses recalled that shortly before the shooting occurred, they observed an altercation taking place in the crowd. Quincy Alpough, who was affiliated with the west side of Port Arthur, testified that both Appellant and Senegal were involved in the confrontation. Alpough initially attempted to get between the two individuals to prevent any violence from breaking out. However, he then observed Appellant draw a gun from his front waistband, point it at Senegal's stomach and pull the trigger. Senegal fell to the ground, bleeding and holding his stomach. Alpough did not recall seeing anyone other than Appellant with a gun. Alpough left the scene of the shooting, and found out later through social media that Senegal had died. A subsequent autopsy revealed that Senegal died from a gunshot wound to his abdomen.
Shortly after the shooting, Alpough voluntarily provided police with a statement confirming that Appellant was the shooter.
Anthony Benjamin, also known as "Murdoch," and Todd Small, also known as "Lil Todd," or "T-Hall," both of whom were affiliated with the east side of town, expressed reluctance to testify at the trial. Although both Benjamin and Small admitted to being at the scene of the shooting, Small refused to testify about what occurred and Benjamin testified that although he witnessed a shooting in which Senegal was killed, he did not see who did the shooting.
Without objection from defense counsel, the State presented evidence that both witnesses had given written statements to the police after the shooting. The prosecutor questioned Small about what he told police: (1) that he saw Appellant and another west side gang member, Telly Joyce, also known as "Tello" or "Little Tello," approach a group of east side members, including Small, and start "talking sh*t" to them; (2) that Joyce was the first person to draw a gun; (3) that he saw Alpough intervene in the situation, causing Joyce to fire his gun toward the ground; (4) that he saw Appellant take out a gun, aim it at Senegal and "us," and start shooting the gun "over and over again"; and (5) that he realized Senegal had been hit.
At trial, Small claimed that the statement he gave to police was inaccurate, and that although he did hear gunshots ring out, he did not know the shooter. According to Small, he did not read his written statement before he signed it, and only signed it because the officer told him he needed to do so. The detective who conducted the interview testified that Small voluntarily came to the station the day after the shooting to give a statement and was not coerced in any way to give or sign the statement.
The prosecutor also asked Benjamin a series of questions about his statement to police, asking him if he told police that he observed an altercation on the night in question involving Joyce and other individuals, and whether he saw both Joyce and Appellant pull out a gun. In addition, he asked Benjamin if he told police that he saw Alpough and another individual grab Joyce's arm in an attempt to intervene in the situation, causing Joyce to fire shots into the ground. Benjamin claimed that although he admittedly signed the written statement, it was not accurate and that his words had been "twisted." The detective testified that Benjamin came to the police station and voluntarily gave his statement, and that his written statement contained an accurate description of the story that he gave to him that day.
The State called one final witness to the shooting, John Savoy, who had been friends with Senegal prior to his death, and who had given a videotaped interview a few days after the shooting with Detective Herbert Otis. As explained in more detail below, Savoy refused to answer any of the prosecutor's questions and the trial court allowed the State to treat Savoy as a hostile witness, without objection from defense counsel. At the start of his testimony, Savoy admitted that he had submitted to the police interview, but claimed he did not know the interview had been videotaped. The prosecutor then asked Savoy a series of questions regarding the statements he had made during the interview. In particular, he asked Savoy whether he told Detective Otis that he had been present at the time of the shooting, that he had seen Appellant holding a gun, and that he had seen sparks flying from the gun. Savoy responded each time by saying that he did not want to answer any questions. At the State's request, the trial court ruled, without objection from defense counsel, that Savoy's responses could be considered as "denials."
The State then requested permission to play the video recording for the jury, but Appellant objected on hearsay grounds. The trial court reviewed the videotape, and concluded that Savoy had denied every statement he had made on the video, and that it should therefore be admitted into evidence as a prior inconsistent statement. After the detective authenticated the tape, it was played for the jury over Appellant's continuing objection. In the interview, Savoy is heard admitting that he saw Appellant with a gun in his hand, that he saw Appellant shooting at someone, and that he saw sparks or fire coming from the barrel of the gun.
Detective Otis testified that after receiving Savoy's statement, as well as statements from other witnesses who observed both Appellant and Joyce firing weapons, he prepared a probable cause affidavit for the arrest of both Appellant and Joyce. The detective recalled that both individuals were then charged with Senegal's murder. The detective further testified, without objection, that at some point in time, Joyce informed him that Appellant had started the shooting, that Appellant was the only one with a gun, and that Appellant was the only shooter.
Appellant presented two witnesses who testified that they were present at the scene but claimed that they never saw Appellant with a gun. The first witness, Appellant's cousin Daseqdrick Brooks testified that he observed an altercation as he was walking toward the Old School Shack shortly before Senegal was shot. He saw both Small and Benjamin pull out guns and start shooting, after which he ducked for cover. Brooks claimed that he never saw Appellant or Joyce with a gun. But he acknowledged that although Appellant was his cousin, this was the first time he had come forward to try to absolve him.
A second defense witness, Brittney Jefferson, recalled that she was present at the Old School Shack when she saw an individual shooting a gun into the crowd. Jefferson described the shooter, but did not identify him by name. She did not believe that Appellant was the shooter.
Jefferson recalled that she spoke with a detective to advise she had witnessed the shooting, but she denied giving a written statement. According to Jefferson, a detective subsequently called her, but she advised him she was on her way to work and did not discuss the matter with him. She claimed that neither he nor any other law enforcement officer called her back. The detective countered that after speaking with Jefferson at the crime scene, he attempted to contact her. Since she had given him the wrong phone number and address, he was never able to speak with Jefferson thereafter.
The jury entered a finding of not guilty on the first count but convicted Appellant of the second count. The jury sentenced him to twenty years in prison.
THE PROSECUTOR'S OPENING STATEMENT
In his first issue, Appellant contends that the prosecutor made a comment during his opening statement that violated his Fifth Amendment right to remain silent. We disagree.
Standard of Review
A comment on a defendant's failure to testify violates both the state and federal constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex.Crim.App. 2011) (citing U.S. Const. amend. V; Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Tex. Const. art. I, § 10; TEX.CODE CRIM. PROC. ANN. art. 38.08). In assessing whether a defendant's Fifth Amendment right has been violated by a prosecutor's comment, courts must view the comment from the jury's standpoint and resolve any ambiguities in the language in favor of it being a permissible argument. Id. The implication that the prosecutor referred to the defendant's failure to testify must be a clear and necessary one, and if the comment "might reasonably be construed as merely an implied or indirect allusion, there is no violation." Id. (citing Busby v. State, 253 S.W.3d 661, 666 (Tex.Crim.App. 2008)). The test for determining whether the prosecutor's comment violated the defendant's Fifth Amendment right is "whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify." Id. (citing Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001)). In applying this standard, we must analyze the context in which the comment was made to determine whether the language was of such character. Id. (citing Bustamante, 48 S.W.3d at 765).
Analysis
The following comment was made by the prosecutor during his opening statement:
Quincy Alpough grew up on the west side; okay? He's older than the defendant, Keenan Anderson, and his friends; okay? However, he knows them. He knows all the parties; okay? He's also friends with all the parties. What you're gonna hear from Mr. Anderson - - we believe - - the State believes the evidence is gonna show Mr. Alpough was there at the Old School Shack on Houston in Port Arthur, Jefferson County, Texas, at about three o'clock that night.Appellant contends that this constituted a "direct reference in violation of [his] right to remain silent." He notes that the only "Mr. Anderson" involved was Appellant himself, and that the prosecutor therefore indicated that Appellant would be providing the information when in fact Appellant had elected not to testify. Appellant acknowledges that no objection was lodged, but contends that the comment constituted egregious error and resulted in a manifest injustice, such that reversal is required.
When viewed as a whole, the prosecutor's comments clearly indicated that the prosecutor did not intend to refer to Appellant when he was describing the testimony he anticipated would place Appellant at the location of the shooting, and was instead referring to the anticipated testimony of Quincy Alpough. The State points out the prosecutor began by explaining that he intended to summarize the evidence that would prove the State's case. He then discussed his first witness, identifying him as Quincy Alpough, and after inadvertently stating that the jury would hear from "Mr. Anderson," the prosecutor went on to describe Alpough's anticipated testimony in great detail. He told the jury that Alpough would testify that he observed an altercation between Appellant and a friend in his group, and that although he tried to calm the situation down, things became heated and shots were fired. Thereafter, the prosecutor summarized the anticipated testimony of the State's other witnesses, as well as the law enforcement officers who responded to the shooting. The State argues that when viewed in this context, it is clear that the prosecutor's "inadvertent mention" of Appellant's name when describing Alpough's anticipated testimony was "nothing more than a slip of the tongue," and that it was not of such a character that the jury would have taken it as a comment on Appellant's failure to testify.
In a similar situation, a prosecutor mistakenly advised the court, in the presence of the jury, that he would be calling the defendant to the stand, but then quickly corrected his statement to name the witness who he actually intended to call. Weyandt v. State, 35 S.W.3d 144, 156 (Tex.App.—Houston [14th Dist.] 2000, no pet.). The defendant objected that this violated his client's right to be silent, as it "placed it in the minds of the jury that she should have testified." Id. The trial court overruled the objection, and on appeal, our sister court agreed that the prosecutor's misstatement was "merely a slip of his tongue," and did not serve as a comment on the defendant's failure to testify. Id. at 157. The "prosecutor's small mistake was not such that the jury would naturally and necessarily take it to be a comment upon appellant's failure to testify." Id. Similarly, we have no concern here that the inadvertent use of Appellant's name would have naturally or necessarily caused the jury to construe the prosecutor's comments as referring to Appellant's failure to testify at trial.
The two cases upon which Appellant primarily relies do not persuade us otherwise. In the first, the defendant was accused of sexually assaulting a nine-year-old girl. The prosecutor pointed to the defendant during closing arguments, and made comments to the effect that jurors had not seen any "remorse" or "shame" and that they had not seen "any pity" for the victim "from that man over there." Dickinson v. State, 685 S.W.2d 320, 321-22 (Tex.Crim.App. 1984). The Court of Criminal Appeals determined that the prosecutor's comments, which were made while pointing at the defendant, were clearly referring to the defendant's failure to testify at trial. Id. at 324-25. In reaching this conclusion, the court held that the necessary and natural effects of those comments was to direct the jury's attention to the "failure of the appellant to testify to these various mental states," and "amounted to a transparent attempt to call the jury's attention to the appellant's invocation of his right to remain silent." Id at 324-25.
In the second case, the prosecutor argued during the punishment phase that the jury should not grant the defendant's request to be placed on probation because he had not expressed any "mercy" for the victim, had never said he was sorry, and had never admitted he was wrong, thereby making him a poor candidate for probation. Koller v. State, 518 S.W.2d 373, 375 (Tex.Crim.App. 1975). The prosecutor also argued that the defense counsel had failed to explain the motive for the killing, and that it was "locked up and being kept secret[.]" Koller, 518 S.W.2d 375-76. The court found that the prosecutor was repeatedly attempting to remind the jury of the defendant's failure to testify, and that his argument was "manifestly intended to be, and was, of such a character that the jury would naturally or necessarily take it as a comment on the failure of the appellant to testify." Id. at 376-77.
Appellant also relies generally on Sanchez v. State, 707 S.W.2d 575 (Tex.Crim.App. 1986) for the proposition that "informing the jury about the damaging evidence that the State expects the jury to hear from the defendant himself violates [the defendant's] most fundamental right against self-incrimination." This, however, was not the holding in Sanchez. The court held that the prosecutor was not permitted to question a defendant about his silence while in custody, as a defendant may not be "impeached through the use of post-arrest, pre-Miranda silence since such impeachment violates the defendant's right to be free from compelled self-incrimination[.]" Sanchez, 707 S.W.2d at 582. The prosecutor's comment here was not intended to be a description of what the State expected to hear from Appellant, and was instead a description of what the State expected to hear from Alpough.
Unlike the prosecutors in those cases, the prosecutor here did not argue that Appellant had failed to demonstrate any remorse or mercy for his victim during the trial, nor did he make any comments suggesting that defense counsel was hiding any facts about the crime and/or the motive for the crime. We find nothing in the record that would lead us to believe that the prosecutor was attempting to bring Appellant's failure to testify to the jury's attention. Instead we conclude that the prosecutor's reference to Appellant in his opening statement was nothing more than an inadvertent slip of the tongue. We overrule Issue One.
SAVOY'S VIDEOTAPED INTERVIEW
In his second issue, Appellant contends that the trial court erred by admitting the videotaped interview of John Savoy because it constituted inadmissible hearsay and violated his Sixth Amendment right to confront witnesses. He further claims that admission of the videotape affected a substantial right, thereby warranting reversal of his conviction.
Applicable Law and Standard of Review
Rule 801 of the Texas Rules of Evidence provides that "hearsay" is a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. TEX.R.EVID. 801(d); see also Lopez v. State, 343 S.W.3d 137, 140 n.4 (Tex.Crim.App. 2011); Stafford v. State, 248 S.W.3d 400, 407 (Tex.App.—Beaumont 2008, pet. ref'd). Hearsay is not admissible unless expressly made permissible by statute, the Rules of Evidence, or other rules prescribed under statutory authority. TEX.R.EVID. 802; see also Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003) (for hearsay to be admissible, it must fit into an exception provided by a statute or the Rules of Evidence). A videotaped statement is hearsay which is inadmissible unless it fits within one of the established exceptions to the hearsay rule. See Valle v. State, 109 S.W.3d 500, 505 (Tex.Crim.App. 2003).
The admissibility of an out-of-court statement under an exception to the general hearsay rule is within the trial court's discretion. Zuliani, 97 S.W.3d at 595 (citing Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App. 1995)). A trial court abuses its discretion in admitting evidence "only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Id. (citing Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992)); see also Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App. 2008) (same); accord Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010). We uphold a trial court's evidentiary ruling if it was correct on any theory of law applicable to the case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex.Crim.App. 2009).
Analysis
Appellant argues that Savoy's videotaped interview was an out-of-court statement made by a declarant, which was admitted to prove the truth of the matter asserted. He contends that the video did not fit within an exception to the hearsay rule, and that the trial court therefore abused its discretion by admitting it into evidence. The State counters that the video was admissible for impeachment purposes as a prior inconsistent statement under either Rule 801(e) or Rule 613(a) of the Texas Rules of Evidence. Alternatively, the State suggests that the video was admissible to expose a "bias or prejudice against the prosecution," under Rule 613(b) of the Texas Rules of Evidence. And finally, the State argues that even if the trial court erred in admitting the recording, it was harmless in light of the overwhelming evidence of Appellant's guilt.
As a preliminary matter, we acknowledge that the State may not call a witness known to be hostile as a subterfuge solely for the purpose of admitting inadmissible evidence through impeachment, as a means of avoiding the hearsay rule. See, e.g., Hughes v. State, 4 S.W.3d 1, 5 (Tex.Crim.App. 1999); Arrick v. State, 107 S.W.3d 710, 722 (Tex.App.—Austin 2003, pet. ref'd); Ramirez v. State, 987 S.W.2d 938, 944 (Tex.App.—Austin 1999, no pet.); Pruitt v. State, 770 S.W.2d 909, 911 (Tex.App.—Fort Worth 1989, pet. ref'd); see also Sills v. State, 846 S.W.2d 392, 395-96 (Tex.App.—Houston [14th Dist.] 1992, pet. ref'd) (party may not call a witness on direct examination in order to admit the witness's prior written statement for purposes of impeachment as an impermissible "back-door" effort to introduce facts the witness repeatedly had refused to testify about at trial). Here, however, Appellant did not object when the trial court granted the State's request to treat Savoy as a hostile witness, nor when the prosecutor asked Savoy a series of questions about the statements contained in his interview. Instead, Appellant's only objection came later in the proceedings when the State sought to admit the videotape of the interview itself, and that objection was based solely on the contention that the recording constituted inadmissible hearsay.
A party's request to treat a witness as hostile may arise from the realization that the witness would no longer be cooperative as expected. If the trial court faces a situation in which (1) a party has called a witness to testify, (2) that witness's testimony has surprised the sponsoring party, and (3) that testimony is otherwise injurious to the sponsoring party's cause, then the trial court has the discretion to permit the sponsoring party to treat the witness as hostile, and to ask that witness leading questions. See Bryant v. State, 282 S.W.3d 156, 169 (Tex.App.—Texarkana 2009, pet. ref'd); see also TEX.R.EVID. 611 (giving the trial court discretion to control the mode of examining witnesses, allowing a party to ask leading questions of a hostile witness); Wyatt v. State, 23 S.W.3d 18, 28-29 (Tex.Crim.App. 2000) ("permitting leading questions on direct examination is a matter within the sound discretion of the trial court"). Rule 607 allows either party, including the party that called the witness, to attack the witness's credibility. TEX.R.EVID. 607.
To the extent Appellant argues that the trial court erred by permitting the State to call Savoy as a hostile witness for the sole purpose of impeaching his testimony, he has waived error. See, e.g., Trevizo v. State, No. 08-12-00063-CR, 2014 WL 260591, at *12 (Tex.App.—El Paso Jan. 22, 2014, no pet.) (not designated for publication) (appellant failed to preserve error for court's review, where defense counsel failed to object to State calling a witness for the sole purpose of subverting the Rules of Evidence to admit improper evidence). The only questions for our consideration are whether the trial court erred by admitting the video itself, and if so, whether the admission was harmful.
Admission as a Prior Inconsistent Statement
The State relies on two grounds for admitting the recording as an exclusion or exception to the hearsay rule. First, it cites Rule 801(a), which provides that a prior statement is not considered hearsay if the declarant testifies and is subject to cross-examination about a prior inconsistent statement. However, in a criminal case, this rule requires that the prior statement must have been given "under penalty of perjury at a trial, hearing, or other proceeding—except a grand jury proceeding—or in a deposition[.]" TEX.R.EVID. 801(e)(1)(A)(ii). Savoy's statements were not given under penalty of perjury and do not fit within any of the scenarios listed in Rule 801. They were thus not admissible under this excception to the hearsay rule. See Straker v. State, No. 08-14-00112-CR, 2016 WL 5845825, at *20 (Tex.App.—El Paso Sept. 30, 2016, no pet.) (not designated for publication) (witness's prior statements made to a friend, which were not made under penalty of perjury, did not come within any of the scenarios set forth in Rule 801) (citing Martinez-Salinas v. State, No. 04-14-00565-CR, 2015 WL 6736795, at *4 (Tex.App.—San Antonio Nov. 4, 2015, pet. ref'd) (mem. op., not designated for publication) (concluding that Rule 801(e)(1)(A)(ii) was inapplicable to statements made by a witness during an interview with the witness's employer and attorney, where those statements were not made under oath in any of the proceedings enumerated in the Rule).
Rule 801 provides that: "A statement that meets the following conditions is not hearsay: (1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (A) is inconsistent with the declarant's testimony and: (i) when offered in a civil case, was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; or (ii) when offered in a criminal case, was given under penalty of perjury at a trial, hearing, or other proceeding--except a grand jury proceeding--or in a deposition; (B) is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (C) identifies a person as someone the declarant perceived earlier." TEX.R.EVID. 801(e).
Admission of the Videotape as a Prior Inconsistent Statement under Rule 613
The State also cites Rule 613, which provides a separate exception, allowing the admission of extrinsic evidence of a witness's prior inconsistent statement to be admitted for impeachment purposes, when the witness has been asked about the time, place, and circumstances of the statement and "given the opportunity to explain or deny" such statement. TEX.R.EVID. 613(a); see also Jernigan v. State, 589 S.W.2d 681, 692 (Tex.Crim.App. 1979) (noting that a prior inconsistent statement admitted under this exception may only be considered by the jury for impeachment purposes only and not as evidence of a defendant's guilt). If the witness unequivocally admits making the statement, the extrinsic evidence of the statement is not admissible. See TEX.R.EVID. 613(a)(4) ("Extrinsic evidence of a witness's prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement."); see also Prince v. State, 677 S.W.2d 181, 186 (Tex.App.—San Antonio 1984, no pet.) (citing Huff v. State, 576 S.W.2d 645, 647 (Tex.Crim.App. 1979) (recognizing that if a witness unequivocally acknowledges that he made the prior statement, it is rendered inadmissible under Rule 613)).
Rule 613 provides the foundational requirements for providing evidence of a witness's prior statement as follows: "(1) Foundation Requirement. When examining a witness about the witness's prior inconsistent statement--whether oral or written--a party must first tell the witness: (A) the contents of the statement; (B) the time and place of the statement; and (C) the person to whom the witness made the statement. (2) Need Not Show Written Statement. If the witness's prior inconsistent statement is written, a party need not show it to the witness before inquiring about it, but must, upon request, show it to opposing counsel. (3) Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the prior inconsistent statement. (4) Extrinsic Evidence. Extrinsic evidence of a witness's prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement."
Testimony admitted only for impeachment purposes is otherwise without probative value and cannot be considered as substantive evidence. Key v. State, 492 S.W.2d 514, 516 (Tex.Crim.App. 1973); Adams v. State, 862 S.W.2d 139, 147 (Tex.App.—San Antonio 1993, pet. ref'd).
On the other hand, if the witness denies or equivocates about whether he made the statement, or does not recall making the statement, extrinsic evidence may be admitted pursuant to Rule 613. See McGary v. State, 750 S.W.2d 782, 787 (Tex.Crim.App. 1988) (if a witness denies making the statement or equivocates on whether he made the statement, the trial court may properly admit the prior inconsistent statement into evidence); Prince v. State, 677 S.W.2d at 186 (if a witness either denies or is unable to recall making a prior statement, the foundation for admission of a prior inconsistent statement is established); Johns v. State, 626 S.W.2d 920, 922 (Tex.App.—Fort Worth 1982, pet. ref'd)(where the State's witness did not remember what she said in an allegedly inconsistent prior statement, the defendant was entitled to use the statement to impeach the witness); Ruth v. State, 167 S.W.3d 560, 566 (Tex.App.—Houston [14th Dist.] 2005, pet. ref'd) (if the admission is partial, qualified, or otherwise equivocal, or if the witness claims to not remember making the prior statement, the prior statement is admissible for impeachment purposes); Gannaway v. State, 823 S.W.2d 675, 678 (Tex.App.—Dallas 1991, pet. ref'd) (the trial court erred in allowing the State to introduce a witness's statement implicating appellant in the murder where the witness did not say the statement was wholly true, did not fully testify, and was not fully cross-examined about the statement).
The parties' primary point of contention centers on whether Savoy provided any testimony that could be considered "denials" of his prior statements. Appellant contends that Savoy simply expressed his refusal to answer the prosecutor's questions and never expressly denied making any of the statements in the videotape, such that the interview could not be considered admissible under Rule 613. The State acknowledges that several of our sister courts have held that a witness's refusal to testify does not constitute a denial that he made the prior statements. See, e.g., Sills, 846 S.W.2d at 394-95 (trial court erred by permitting the prosecutor to use a witness's written statement given to the police to impeach that witness, where the witness repeatedly refused to give any testimony concerning the events surrounding the crime for which the defendant was being tried); Davis v. State, 773 S.W.2d 592, 593 (Tex.App.—Eastland 1989, pet. ref'd) (recognizing that a "refusal to testify is not an inconsistent statement"); see also In Matter of M.G., No. 04-95-00752-CV, 1996 WL 721951, at *3 (Tex.App.—San Antonio Dec. 11, 1996, no writ) (not designated for publication) (witness's affidavit could not be admitted as a prior inconsistent statement under Rule 801(e) where the witness refused to testify at trial).
The State argues that we should analogize this situation to one in which the witness cannot recall making a prior statement and/or cannot remember the contents of any such statement. Alternatively, it argues that the above-described cases are distinguishable, as the trial court expressly determined that the prosecutor could deem Savoy's refusal to answer questions about his recorded interview as "denials" of his prior statements.
We find the latter argument to be more dispositive. Although we need not decide whether the trial court properly characterized Savoy's answers as being "denials," we do find that by failing to object, Appellant has waived error. See generally State v. Ordonez, 156 S.W.3d 850, 851 (Tex.App.—El Paso 2005, no pet.) (to preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion, and must have secured a ruling on the objection (citing TEX.R.APP. P. 33.1(a)(1)(2); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App. 1998) (op. on reh'g)). We overrule Issue Two and affirm the judgment of the trial court.
YVONNE T. RODRIGUEZ, Justice March 16, 2018 Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., not participating (Do Not Publish)