Appellant maintains that the State's right to impeach its own witness under Rule 607 "does not extend to employment of such impeachment as a mere subterfuge to get otherwise inadmissible hearsay evidence before the jury." Pruitt v. State, 770 S.W.2d 909, 911 (Tex.App.-Fort Worth 1989, pet. ref'd); United States v. Johnson, 805 F.2d 1459, 1466 (D.C. Cir. 1986). Appellant contends the State's sole purpose in calling K.P. was to impeach her and, thus, get before the jury appellant's alleged admissions of guilt which were otherwise inadmissible.
t claim that the State failed to satisfy one of the requisites of Rule 613(a). Instead, she contends that the State improperly called Melanie for the primary purpose of eliciting otherwise inadmissible evidence. Her argument implicates Rule 607 and the State's ability to impeach its own witness. Rule 607 expressly allows for the credibility of a witness to be attacked by any party, including the party who called the witness. Tex.R.Evid. 607. Prior to the promulgation of Rule 607, the law required a party calling a witness to establish "surprise" or "injury" before the party could impeach its own witness. Barley v. State, 906 S.W.2d 27, 37 n. 11 (Tex.Crim.App. 1995). Rule 607 abandoned the traditional "voucher" rule which prohibited a party from impeaching its own witness and it dispensed with the surprise and injury exception to the voucher rule which served as a prerequisite to impeaching one's own witness. Hughes v. State, 4 S.W.3d 1, 5 (Tex.Crim.App. 1999). Citing Pruitt v. State, 770 S.W.2d 909 (Tex.App.-Fort Worth 1989, pet. ref'd), Appellant argues that it is "improper to call a witness solely for the purpose of entering improper hearsay in rebuttal." In Pruitt, an aggravated robbery case, the defendant's stepfather initially told police that he drove the defendant to the scene of the robbery. Prior to trial, the stepfather recanted his statement. At trial, the stepfather testified that he drove unknown men to the scene of the robbery. The State impeached the stepfather with his prior inconsistent statement. The Fort Worth Court of Appeals reversed, holding that the State's right to impeach its own witness with a prior inconsistent statement did not extend to impeachment as a subterfuge to get inadmissible hearsay before jury and did not permit admission of the stepfather's prior inconsistent statement. Pruitt, 770 S.W.2d at 911. The Court of Criminal Appeals considered the issue in Barley v. State, 906 S.W.2d 27, 37 (Tex.Crim.App. 1995), but held that the defendant did not preserve the complaint. Nevertheless,
A prior inconsistent statement which was not given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding except a grand jury proceeding, is hearsay, TEX. R. CRIM. EVID. 801, and not admissible except as provided by statute or by the rules of evidence. TEX. R. CRIM. EVID. 802; Pruitt v. State, 770 S.W.2d 909, 911 (Tex.App.-Fort Worth 1989, pet. ref'd). TEX. R. CRIM. EVID. 612(a) allows impeachment of a witness by use of a prior inconsistent statement, without the requirement of Rule 801 that the prior statement be made under oath.
While this showing is no longer required, the majority of jurisdictions still do not allow prior inconsistent statements to be used under the guise of impeachment for the primary purpose of placing substantive evidence before the jury which is not otherwise admissible, the complaint which is advanced here. See United States v. Hogan, 763 F.2d 697, 702 (5th Cir. 1985); Pruitt v. State, 770 S.W.2d 909, 911 (Tex.App. — Fort Worth 1989, pet. ref'd). However, the distinction between those cases and the case at bar is this: in each of those cases, the witness had already recanted his or her statement in prior sworn testimony at a previous trial or hearing. Therefore the State could be charged with "knowing" that the witness would do the same in their case and thus having the subjective primary intent of placing otherwise inadmissible substantive evidence before the jury.
In his brief, appellant cites a string of cases for the proposition that the questioning was "an improper ploy by the State—to use the right to impeach its own witness 'as a subterfuge for offering inadmissible hearsay.'" See Hughes v. State, 4 S.W.3d 1, 5 (Tex. Crim. App. 1999); Ramirez v. State, 987 S.W.2d 938, 944 (Tex. App.—Austin 1999, pet. ref'd); Miranda v. State, 813 S.W.2d 724, 735 (Tex. App.—San Antonio 1991, pet. ref'd); Pruitt v. State, 770 S.W.2d 909, 909 (Tex. App.—Fort Worth 1989, pet. ref'd).
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.
Generally, the State may not impeach its own witness as subterfuge for offering inadmissible hearsay. SeeRamirez v. State , 987 S.W.2d 938, 944 (Tex. App.–Austin 1999, pet. ref'd) ; Pruitt v. State , 770 S.W.2d 909, 909 (Tex. App.–Fort Worth 1989, pet. ref'd) ; see alsoMiranda v. State , 813 S.W.2d 724, 735 (Tex. App.–San Antonio 1991, pet. ref'd) ("There has always been a danger that a party may attempt to use a prior inconsistent statement under the guise of impeachment for the primary purpose of placing before the jury evidence which is not otherwise admissible and which may be treated as substantial evidence.... A party should not, however, be permitted to use a straw-man ploy to get impeachment evidence before the jury as substantive evidence.").
In other words, the party's knowledge should be considered when determining if the impeachment evidence should be excluded because its probative value is substantially outweighed by its prejudicial effect.Hughes, 4 S.W.3d at 4 (quoting Pruitt v. State, 770 S.W.2d 909, 911 (Tex. App.—Fort Worth 1989, pet. ref'd) ).
The prosecution may not call a witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment testimony as a means to circumvent the hearsay rule. Hughes v. State, 4 S.W.3d 1, 4-5 (Tex. Crim. App. 1999); Pruitt v. State, 770 S.W.2d 909, 911 (Tex. App.-Fort Worth 1989, pet ref'd). A party calling a witness for the sole purpose of adducing a prior inconsistent statement can only profit if the jury misuses the evidence by considering it for the truth of the matter asserted.
However, impeachment by prior inconsistent statements may not be permitted when employed as a mere subterfuge to place before the jury evidence that is otherwise inadmissible. See Hughes, 4 S.W.3d at 5; Arrick v. State, 107 S.W.3d 710, 722 (Tex. App.—Austin 2003, pet. ref'd); Miranda v. State, 813 S.W.2d 724, 734-35 (Tex. App.—San Antonio 1991, pet. ref'd); Pruitt v. State, 770 S.W.2d 909, 911 (Tex. App.—Fort Worth 1989, pet. ref'd). In order to determine whether the impeachment was for an improper purpose, courts should engage in a Rule 403 balancing analysis.