Opinion
NO. 09-10-00513-CR
02-01-2012
LEONARD LEON KELLY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 356th District Court
Hardin County, Texas
Trial Cause No. 19872
MEMORANDUM OPINION
A jury found Leonard Leon Kelly guilty of the offense of sexual assault of a child and assessed his punishment at three years in prison. See Tex. Penal Code Ann. § 22.011 (West 2011). In one issue, Kelly complains the trial court erred by admitting into evidence the written statement of M.C., the complaining witness who testified at the trial. Kelly argues that M.C.'s statement contains inadmissible hearsay and that its admission into evidence before M.C. testified violated his constitutional rights under the Confrontation Clause of the Sixth Amendment. See U.S. Const. amend. VI. We affirm the trial court's judgment.
We cite to the current version of the statute even though the Legislature amended this section in 2005 and in 2009, because the subsequent amendments do not affect the outcome of this appeal.
Background
The record reflects that Kelly used M.C.'s written statement in cross-examining Officer Chad Ainsworth, the investigator who took M.C.'s statement. Officer Ainsworth testified before M.C. testified at the trial. During Officer Ainsworth's testimony, Kelly's counsel asked Officer Ainsworth if he remembered taking M.C.'s statement, and he then used M.C.'s statement to refresh Officer Ainsworth's memory. After refreshing Officer Ainsworth's memory with M.C.'s written statement, Kelly's counsel questioned Officer Ainsworth about what M.C. told him during the investigation. During the examination, Kelly's counsel asked specific questions about the contents of M.C.'s statement. At one point, Kelly's counsel "quoted" what M.C. had stated, and he then explained that he was paraphrasing from what the trial court could reasonably have assumed was M.C.'s written statement.
On the State's redirect examination of Officer Ainsworth, the prosecutor offered M.C.'s complete written statement into evidence. Kelly's counsel objected, stating that [i]t's improper to try to enter into evidence any type of statement, hearsay, especially to a witness that hasn't testified." The prosecutor argued that Kelly's counsel opened the door to the trial court's admitting M.C.'s statement based on the manner Kelly's counsel had used the statement in cross-examining Officer Ainsworth. The prosecutor asked that the trial court allow the jury to see M.C.'s full statement.
The trial judge overruled Kelly's objections and admitted M.C.'s written statement into evidence. The prosecutor then read M.C.'s statement to the jury. M.C. was called as the State's next witness. During M.C.'s cross-examination, Kelly's counsel had the opportunity to ask M.C. questions about the statement she gave to Officer Ainsworth, but he did not.
Analysis
On appeal, Kelly argues that the admission of the written statement violated his rights under the Confrontation Clause. See U.S. Const. amend. VI. The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" Id.
In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that "[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." 541 U.S. at 59. However, Crawford applies only when the declarant does not testify at trial. See id. at 59 & n.9. Therefore, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of [a witness's] prior testimonial statements." Id. at 59 n.9 (citing California v. Green, 399 U.S. 149, 162, 26 L.Ed.2d 489, 90 S.Ct. 1930 (1970) ("For where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem.")). Because M.C. testified at Kelly's trial, and she was subject to being cross-examined, we conclude that Kelly's Confrontation Clause rights were not violated.
Kelly also argues that M.C.'s written statement was not admissible because her written statement contains inadmissible hearsay. Generally, 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). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Id. A trial court's decision regarding the admission of evidence will be sustained if it is correct on any theory of law applicable to the case. McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997).
The record demonstrates that while examining Officer Ainsworth, Kelly's counsel utilized portions of M.C.'s statement in an effort to suggest that Officer Ainsworth, because he stated that he concluded Kelly had not used force, found M.C.'s account untrustworthy. Nevertheless, the record reflects that Kelly admitted during his testimony before the jury that he had sexual relations with M.C., who he knew to be a minor, but he claimed that M.C. had initiated the encounter. Kelly's counsel also used Officer Ainsworth's report, which stated that no force had been used, in pointing out that Ainsworth's conclusion was inconsistent with what he learned during his investigation, thereby implicitly challenging the validity of the portions of M.C.'s statement that he had injected into the trial.
Rule 107 of the Texas Rules of Evidence, the rule of optional completeness, allows the trial court to allow a party to place an entire written statement in evidence when a part is "given in evidence by one party[.]" Tex. R. Evid. 107; Walters, 247 S.W.3d at 217-18. Rule 107 is properly invoked when an opposing party reads part of a statement into evidence. Livingston v. State, 739 S.W.2d 311, 331-32 (Tex. Crim. App. 1987) (ruling that during cross-examination the defense counsel opened the door for introduction of the remainder of the statement by reading only a portion of the statement before the jury). Rule 107 "is one of admissibility and permits the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter 'opened up' by the adverse party." Walters, 247 S.W.3d at 217-18. Rule 107 is "designed to reduce the possibility of the jury receiving a false impression from hearing only part of some act, conversation, or writing. Id. at 218. Because Kelly's counsel questioned Officer Ainsworth in detail to confirm the contents of parts of M.C.'s written statement, even presenting one portion of its supposed content in quotes, we conclude that the question of whether portions of the statement were "given in evidence" was a matter on which reasonable opinions could differ; therefore, we conclude that it is a matter that falls within the zone of reasonable disagreement. See Livingston, 739 S.W.2d at 331-32; Espinoza v. State, 828 S.W.2d 53, 55 (Tex. App.—Houston [14th Dist.] 1991) ("With defense counsel having read a portion of the complainant's statement into the record, the State was entitled to offer the remainder of the statement."), aff'd on other grounds, 853 S.W.2d 36 (Tex. Crim. App. 1993); see also Credille v. State, 925 S.W.2d 112, 116-17 (Tex. App.—Houston [14th Dist.]1996, pet. ref'd) (reasoning that where cross-examination challenged complaining witness's credibility, the admission of the entire videotaped interview was proper in light of the cross-examination of investigator by defense counsel about portions of the interview); but cf. Stewart v. State, 221 S.W.3d 306, 312 (Tex. App.—Fort Worth 2007, no pet.) (reasoning that the language of Rule 107 indicates that when a portion of a document is read into evidence, the other portions may only be read into evidence and not admitted).
In Sauceda v. State, the Court of Criminal Appeals noted that the Credille Court had employed a broad reading of Rule 107. 129 S.W.3d 116, 122-23 (Tex. Crim. App. 2004). The Court of Criminal Appeals did not criticize the Credille's Court's broad interpretation of Rule 107; rather, it distinguished Credille because the "Credille defense pointed to specific statements made by the complainant during the interview which, taken out of context, could indeed have created 'the possibility of the jury receiving a false impression from hearing only a part of some act, conversation, or writing.'" Sauceda, 129 S.W.3d at 123 (citations omitted). Kelly's counsel also pointed to specific statements in M.C.'s written statement that the jury could have taken out of context to suggest that M.C.'s statement was inconsistent about Kelly's use of force, when it was not.
Here, based on defense counsel's choice to give the jury specific information found in M.C.'s written statement, we conclude that the trial court did not abuse its discretion by allowing M.C.'s entire written statement into evidence because admitting it allowed the jury to place the portions injected into the case in context, and to thereby minimize the chance that the jury might believe that M.C. gave Officer Ainsworth an inconsistent account of her encounter with Kelly. We hold that the trial court did not abuse its discretion by admitting M.C.'s written statement. See Tex. R. Evid. 107, see also Walters, 247 S.W.3d at 217. Because the admission of M.C.'s complete written statement was not an abuse of discretion, and because its admission did not violate Kelly's rights under the Confrontation Clause, we overrule Kelly's sole issue and affirm the trial court's judgment.
AFFIRMED.
HOLLIS HORTON
Justice
Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.