Opinion
No. 04-02-00275-CR
Delivered and Filed: December 10, 2003. DO NOT PUBLISH.
Appeal from the 187th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CR-7104, Honorable Raymond Angelini, Judge Presiding. Affirmed.
Sitting: ALMA L. LÓPEZ, Chief Justice CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice.
MEMORANDUM OPINION
William Raymond Kane appeals the judgment convicting him upon a jury's verdict of three counts of sexual assault and one count of aggravated kidnapping and sentencing him to life in prison. Kane argues that the trial court erred in refusing to admit into evidence, for impeachment purposes, the written statement the victim, D.S., gave to police the day after the incident, which Kane claims evinced inconsistencies with her trial testimony. Kane further contends that this violated his federal and state constitutional "right to confront the witness against him, because it stripped [him] of the tools required to effectively cross examine [D.S.]." Because Kane was not harmed by the court's refusal to admit the statement, we affirm the trial court's judgment. A prior inconsistent written statement is admissible under Texas Rule of Evidence 613(a):
In examining a witness concerning a prior inconsistent statement made by the witness, 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 the witness 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 decision whether to admit such a statement implicates the Sixth Amendment to the United States Constitution because the constitutional right of confrontation includes "[t]he right of an accused to cross-examine a testifying State's witness . . . [and] impeach the witness with relevant evidence that might reflect . . . inconsistent statements[.]" Rankin v. State, 41 S.W.3d 335, 344 (Tex. App.-Fort Worth 2001, pet. ref'd). "We review a trial court's [Rule 613(a)] evidentiary ruling for an abuse of discretion." Lopez v. State, 86 S.W.3d 228, 230 (Tex.Crim.App. 2002). Hence, "[a]s long as the judge's ruling is within the zone of reasonable disagreement, we will not intercede." Id. Moreover, the trial court's discretion is not limited because the right of confrontation is implicated. See, e.g., Lagrone v. State, 942 S.W.2d 602, 613 (Tex.Crim. App.) ("[T]he trial court . . . maintains broad discretion to impose reasonable limits on cross-examination[.]"), cert. denied, 522 U.S. 917 (1997); Cantu v. State, 994 S.W.2d 721, 730 (Tex. App.-Austin 1999) ("The Confrontation Clause affords criminal defendants the right to confront witnesses against them through cross-examination[;] . . . [h]owever, the trial court maintains a broad discretion to impose reasonable limits on cross-examination."), pet. dism'd, improvidently granted, 19 S.W.3d 436 (Tex.Crim.App. 2000). On appeal, Kane complains of three instances in which he claims D.S. made statements at trial inconsistent with the prior written statement she gave to Detective Guy Durden, a detective with the San Antonio Police Department, the day after the incident. 1. Kane argues that the prior written statement should have been admitted because D.S testified at trial "that she had tried to get away from [him] immediately upon her first encountering him in his truck" in contrast to the prior written statement which contained no such assertion. To show an inconsistency because something material was omitted from the statement, Kane would have had to offer the prior written statement in its entirety. However, Kane offered only a redacted version of the statement, insufficient to show the alleged inconsistency. Therefore, Kane has waived any error on appeal. See Tex.R.App.P. 33.1. 2. Kane next argues that D.S. testified at trial that Kane was "adamant" she get into the back of the truck, but that she did not use the word "adamant" in her prior written statement. Kane fails to demonstrate any inconsistency between the prior written statement and D.S.'s testimony either during direct or cross-examination because it was Kane's defense counsel, not D.S., who used the word "adamant." See Tex. R. Evid. 613(a); Lopez, 86 S.W.3d at 230 ("In order to qualify for admission under Rule 613(a), the court must be persuaded that the statements are indeed inconsistent."). 3. Kane argues that D.S. "testified during direct examination that [he] had not taped her wrists behind her back, but that she was on her back with her hands tied to part of the cab of the truck[,]" in contrast to her prior written statement that "[h]e then got some electrical tape and he taped my wrists behind my back[.]" We agree that this represents an inconsistency between D.S.'s trial testimony and her prior written statement. On direct examination, D.S. testified:
State's Attorney: Okay. So what happened after he had you on your stomach with your arm behind your back?
D.S.: At one point or the other, I got turned around and like he sat on my chest or whatever, tied me down.
State's Attorney: What did he tie you with?
D.S.: Duct tape and electric tape.
State's Attorney: Okay. What were your hands tied with?
D.S.: Electric tape.
State's Attorney: And what did he have — did he have them tied together or did he have them tied separate?
D.S.: No, he had them separate.
State's Attorney: What did he tie them to?
D.S.: I think that it's like a — like on a seat belt there's the bucket, you know, where you connect the seat belt to. And on the beds they have that also just in case, like, when you have a co-driver and he's sleeping, he don't roll off the bed or whatever.On cross-examination, Kane confronted D.S. with the inconsistency:
Defense Counsel: Now, you indicated in your testimony that after he got you under control, he had you on your stomach, had your arm up behind your back. Remember that?
D.S.: Yes.
Defense Counsel: And that at that point he taped your wrists behind your back?
D.S.: No. After he flipped me over to my back.
Defense Counsel: After he flipped you over to your back what?
D.S.: Then he tied me up.
Defense Counsel: But didn't you state that he had taped your wrists behind your back?
D.S.: No, I didn't.
Defense Counsel: Didn't you tell that to Detective Durden in the statement you gave on the next day, which was April 11th of 2000?
D.S.: No. I was tied. I was on my back tied down.
Defense Counsel: May I approach again, Your Honor?
The Court: Sure.
Defense Counsel: Let me ask you to review this statement of yours, this first sentence here as a refresher to your memory.
. . . .
Defense Counsel: Does that refresh your memory of what you told Detective Durden that night?
D.S.: About the tape and about how he twisted my arm, yes.
Defense Counsel: Did you or did you not tell Detective Durden that he taped your wrists behind your back?
D.S.: No.Kane then offered the relevant part of the prior written statement into evidence for impeachment purposes:
Defense Counsel: Your Honor, I've written on this copy and I've kind of torn it up. Is there any way that I can get a clean copy? I'd like to introduce —
The Court: Why?
Defense Counsel: I'd like to be able to introduce it as impeachment evidence.
The Court: You can't.
Defense Counsel: I'd like to be able to at least make an offer of it.
The Court: Well, offer that one.
. . . .
Defense Counsel: Can I have this marked as Exhibit No. 1.
(Defendant's Exhibit No. 1 was marked.)
Defense Counsel: [D.S.], I'm handing you what's been marked as Defense Exhibit No. 1. Is this a copy of the statement you gave to Detective Durden with your signature at the bottom of page 1 and page number 2?
D.S.: Like I said, I don't recall. It's been so long ago, I don't recall those papers and I didn't keep any of them for my own records of those.
Defense Counsel: You indicated that this signature on page 1 at the bottom was yours.
D.S.: Yes.
Defense Counsel: Is this signature at the bottom of page 2 yours as well?
D.S. Yes.
Defense Counsel: Are you telling this jury that you don't remember ever giving a statement to Detective Durden?
D.S. No.
Defense Counsel: Okay. Is this a true and correct copy of the statement that you had sworn to and signed before a notary public in Bexar County?
D.S.: Yes.
Defense Counsel: Your Honor, I would offer for purposes of impeachment Defense Exhibit No. 1, specifically the language dealing with the incident we have just now spoken about. The rest of it we can redact or black out if the court would like.The trial court sustained the State's objection to Kane's request and informed the jury: "Ladies and gentlemen, written statements are not evidence in the case. The evidence is the oral statements that the people make. Written statements were made so people can remember what they said, if it helps them or helps the other side cross-examine the people." To demonstrate that the court abused its discretion in failing to allow D.S.'s prior inconsistent written statement as evidence, Kane must establish (1) "identification of the statement (by time, place, and person)," (2) "a summary of the contents," and (3) "a denial by the witness as to what the statement contains." See Ferguson v. State, 97 S.W.3d 293, 296 (Tex. App.-Houston [14th Dist.] 2003, pet ref'd). Based on the foregoing quoted material, we conclude that Kane met each of Rule 613(a)'s prerequisites for admission. First, Kane laid an adequate foundation that included when, where, and to whom D.S. gave the prior written statement and the statement's relevant contents. See id.; accord Joseph v. State, 960 S.W.2d 363, 366 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd) (holding that the trial court erred in refusing to allow the defendant to impeach a witness with a prior inconsistent statement because an "adequate foundation" had been laid). Second, Kane established that D.S.'s trial testimony was indeed inconsistent with her prior written statement. See Lopez, 86 S.W.3d at 230-31 (indicating that if the statements are "indeed inconsistent" admission of a prior inconsistent statement is justified and establishes that the trial court abused its discretion in refusing to admit the statement). Therefore, we hold that the trial court abused its discretion in denying Kane's request to admit D.S.'s prior written statement as extrinsic evidence of her inconsistent trial testimony. See id.; Ferguson, 97 S.W.3d at 296. Nevertheless, we conclude that the error was harmless because "the contents of the statement were before the jury, [so] exclusion of the actual writing" could not have harmed Kane. See Johnson v. State, 583 S.W.2d 399, 404 (Tex.Crim.App. [Panel Op.] 1979). First, Kane conducted a lengthy cross-examination of D.S. regarding the inconsistency between the statements at which time both her previous testimony and the contents of her prior written statement were recounted. Also, Kane questioned Detective Durden, without objection, as to whether D.S. "in her statement to you which she signed and you notarized, indicate to you that he, being the defendant, and I'll read this, `he taped my wrists behind my back'?" Detective Durden answered "Yes." Therefore, the court's failure to admit the inconsistent part of the prior written statement did not contribute beyond a reasonable doubt to Kane's conviction or punishment. See Johnson, 583 S.W.3d at 404; Carrasquillo v. State, 742 S.W.2d 104, 111 (Tex. App.-Fort Worth 1987, no pet.) (the failure to admit into evidence records of the victim's prior convictions was harmless because the fact of the convictions was before the jury through the testimony of another witness). The trial court's judgment is affirmed.