Michael Chase Jordan v. State ( 2018 )

07-17-00324-CR ACCEPTED
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
5/30/2018 3:55 PM
Vivian Long, Clerk
№ 07-17-00324-CR
IN THE COURT OF APPEALS FILED IN
7th COURT OF APPEALS
AMARILLO, TEXAS
FOR THE 5/30/2018 3:55:50 PM
VIVIAN LONG
SEVENTH JUDICIAL DISTRICT CLERK
AMARILLO, TEXAS
__________________________________________________________________
MICHAEL CHASE JORDAN
Appellant
VS.
STATE OF TEXAS
Appellee
__________________________________________________________________
APPEAL FROM THE 121ST DISTRICT COURT
OF TERRY COUNTY, TEXAS
CAUSE NO. 7152
HONORABLE JOHN A. DIDWAY, JUDGE PRESIDING
__________________________________________________________________
STATE’S BRIEF
__________________________________________________________________
LAURIE L. KEY
Terry County Attorney Pro Tem
1213 Ave. K
Lubbock, Texas 79401
ORAL ARGUMENT NOT REQUESTED (806) 771-3933 – Phone
(806) 771-3935 – Facsimile
lauriekeylaw@gmail.com
State Bar № 24032624
Attorney for the State (Appellee)
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.1(a)(1)(A), a complete list of the names and
addresses of all parties to the trial court’s judgment, and trial and appellate counsel,
is provided so members of this Honorable Court may determine whether grounds for
disqualification or recusal exist:
APPELLANT: MICHAEL CHASE JORDAN
TDC# 02141166
J Middleton Unit
13055 FM 3522
Abilene, Texas 79601
COUNSEL FOR APPELLANT AT TRIAL AND ON APPEAL:
PAUL E. MANSUR
P.O. Box 1300
Denver City, Texas 79323
Email: paul@paulmansurlaw.com
APPELLEE: THE STATE OF TEXAS
COUNSEL FOR APPELLEE AT TRIAL AND ON APPEAL:
LAURIE L. KEY
Terry County Attorney Pro Tem
E-mail: lauriekeylaw@gmail.com
1213 Ave. K
Lubbock, Texas 79401
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ......................................................... i
TABLE OF CONTENTS ....................................................................................... ii
INDEX OF AUTHORITIES ................................................................................. iii
ISSUES PRESENTED .............................................................................................1
STATEMENT OF FACTS ......................................................................................2
SUMMARY OF THE ARGUMENT .....................................................................7
ARGUMENT ............................................................................................................8
I. Exclusion of Appellant’s attempts to impeach Sergeant Valdonado was
not an abuse of discretion...................................................................................10
a. Testimony presented by the State left no false impression before the jury,
and Appellant’s Due Process rights were not violated. ....................................10
b. Appellant did not properly impeach Sergeant Valdonado under Texas Rule
of Evidence 613(a). ............................................................................................17
c. Appellant was properly barred from impeaching Sergeant Valdonado with
Valdonado’s prior bad acts. ..............................................................................21
II. Ruling that admission of Appellant’s police interview video would
open the door and allow the State to impeach Appellant’s credibility was not
an abuse of discretion. ........................................................................................25
PRAYER .................................................................................................................28
CERTIFICATE OF SERVICE ............................................................................29
CERTIFICATE OF COMPLIANCE ..................................................................29
ii
INDEX OF AUTHORITIES
Cases
Alcorta v. Texas, 355 U.S. 28, 78 S. Ct. 103 (1957) ......................................... 15,16
Appling v. State, 904 S.W.2d 912 (Tex. App.—Corpus Christi 1995, pet. ref’d) ...27
Aranda v. State, 736 S.W.2d 702 (Tex. Crim. App. 1987)......................................17
Bates v. State, 587 S.W.2d 121 (Tex. Crim. App. 1979).........................................11
Bee v. State, 974 S.W.2d 184 (Tex. App.—San Antonio 1998, no pet)..................27
Cameron v. State, 241 S.W.3d 15 (Tex. Crim. App. 2007).......................................8
De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009)...................................9
Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011) ...........................11
Ex parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011)............................. 10,11
Flowers v. State, 438 S.W.3d 96 (Tex. App.—Texarkana 2014, pet. ref’d) ...........17
Gerron v. State, 524 S.W.3d 308 (Tex. App.—Waco 2016, pet ref’d) ...................19
Keller v. State, 662 S.W.2d 362 (Tex. Crim. App. 1984)........................................11
King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) ............................................9
Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239 (1946) .............................9
Lomas v. State, No. 13-10-00242-CR, 2013 Tex. App. LEXIS 6866 (Tex. App.—
Corpus Christi June 6, 2013) ................................................................................24
Lund v. State, 366 S.W.3d 848 (Tex. App.—Texarkana 2012, no pet)...................17
iii
Macias v. State, 136 S.W.3d 702 (Tex. App.—Texarkana 2004, no pet) ....... passim
McGary v. State, 750 S.W.2d 782 (Tex. Crim. App. 1988) ....................................17
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) ..........................8,22
Morales v. State, 32 S.W.3d 862 (Tex. Crim. App. 2000) ........................................9
Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002)........................................8
Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002)..........................................25
Prescott v. State, 744 S.W.2d 128 (Tex. Crim. App. 1988) .............................. 21,22
Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999)..........................................8
Ramirez v. State, 802 S.W.2d 674 (Tex. Crim. App. 2002) ....................................11
Ramirez v. State, No. 05-13-00608-CR, 2014 Tex. App. LEXIS 8144 (Tex. App.—
Dallas July 28, 2014) ............................................................................................12
Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997) ..................................22
Singletary v. State, 509 S.W.2d 572 (Tex. Crim. App. 1974) .................................25
Solomon v. State, 49 S.W.3d 356 (Tex. Crim. App. 2001)........................................9
Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008) .........................................8
United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392 (1976) ....................................11
Vasquez v. State, 67 S.W.3d 229 (Tex. Crim. App. 2002) ......................................12
White v. State, No. 05-14-01359-CR, 2016 Tex. App. LEXIS 5555 (Tex. App.—
Dallas May 25, 2016)............................................................................................12
Winegarner v. State, 235 S.W.3d 787 (Tex. Crim. App. 2007) ..............................22
iv
Statutes
Tex. Code Crim. P. art. 38.22 ..................................................................................13
Tex. R. App. P. 39.1...................................................................................................1
Tex. R. App. P. 44.2...................................................................................................9
Tex. R. Evid. 401 .....................................................................................................11
Tex. R. Evid. 402 .....................................................................................................11
Tex. R. Evid. 403 .....................................................................................................18
Tex. R. Evid. 404(b).................................................................................................22
Tex. R. Evid. 607 .....................................................................................................10
Tex. R. Evid. 608(b).................................................................................................21
Tex. R. Evid. 609 ............................................................................................... 10,21
Tex. R. Evid. 613 .......................................................................................... 10,17,18
Tex. R. Evid. 801(e)(2) ............................................................................................26
Tex. R. Evid. 806 .............................................................................................. 26, 27
v
Statement on Oral Argument
Oral argument is not requested by Appellee, because the dispositive issues in
this case have been authoritatively decided, the facts and legal arguments are
adequately presented in the briefs and record, and the Court’s decisional process
would not be significantly aided by oral argument.1
References to Reporter’s and Clerk’s Records
For the convenience of the Court, references to the Reporter’s Record will be
identified by Volume, Page, and Line in the following format: (RR 3:25;4).
References to the Clerk’s Record will be by Volume and Page in the following
format: (CR 1;4).
ISSUES PRESENTED
Whether the trial court abused its discretion by barring Appellant’s attempts
to introduce impeachment evidence against Sergeant Matthew Valdonado?
Whether the trial court abused its discretion by ruling admission of the
Appellant’s recorded police interview could open the door to impeachment of
Appellant’s credibility?
1
See Tex. R. App. P. 39.1(b), (c), (d).
1
STATEMENT OF FACTS
On June 23, 2016, Katie Carr and her sister, Jessica Avey, were outside in
their parents’ back yard, in Brownfield, Texas, when they saw Appellant ride by on
a girl’s bicycle.2 That night, when Carr was at Avey’s home, they noticed the girl’s
bicycle they had previously seen Appellant riding, on the ground outside Avey’s
residence. 3 They noted the presence of the girl’s bicycle that did not belong to their
family, and then noticed the absence of Avey’s son’s bicycle. 4 The next day, Carr
observed Appellant in possession of her nephew’s bicycle, so she notified Avey and
their father, and the three went to confront Appellant. 5 The family were unsuccessful
in convincing Appellant to return the boy’s bike to them, so Avey called the
Brownfield Police Department for help.6
Officers responded and located Appellant in the area described by Avey and
Carr, in possession of the boy’s bicycle that had been taken from Avey’s yard. 7
Appellant lied to the officers regarding his identity. 8 After explaining the situation
to Appellant, Officer Charles Forbes returned the bicycle to Avey and Carr. 9
Carr and Avey began to recount the suspicious events surrounding the
2
(RR 2:180;22-25); (RR 2:181;10); (RR 2:181;22-25); (RR 2:182;4-21); (RR 2:185;4-6).
3
(RR 2:182;24-25); (RR 2:183;1-15); (RR 2:191;8-12,19-25); (RR 2:207;23-24).
4
(RR 2:183;21-25); (RR 2:184;1-2); (RR 2:207;23-24).
5
(RR 2:184;3-25); (RR 2:192;4-16); (RR 2:210;5-25).
6
(RR 2:185;12-23); (RR 2:194;19-24); (RR 2:211;11-21).
7
(RR 2:239;2-5,13-25); (RR 2:240;6-9); (RR 2:247;15-21); (RR 2:257;17-21); (RR 3:21;12-25).
8
(RR 2:244;6-25); (RR 2:245;4-25); (RR 2:246;1-25); (RR 3:26;1-24).
9
(RR 2:185;20-23); (RR 2:211;23-25), (RR 2:212;1); (RR 3:29;1-7).
2
children’s bicycles to Officer Forbes.10 Suddenly, Appellant appeared not far from
their location 11 and both Avey and Carr identified him for the officer as being the
man they’d seen that day and the day before with the stolen bicycle.12 Officer Forbes
detained Appellant at that time, and removed a “small, gray, blue, and black” camera
bag from his person 13 before placing him in the back of the patrol car. 14 After Officer
Forbes confirmed the bicycle Appellant had just been discovered riding did not
belong to anyone at his address (1414 Cardwell), he transported Appellant to the
police department to try to identify him and further investigation of the situation.15
After placing Appellant in one of the police department interrogation rooms,16
Officer Forbes sought assistance from his patrol sergeant, Matthew Valdonado.17
Sgt. Valdonado and Officer Forbes worked to try to establish Appellant’s true
identity, 18 amidst him giving two false social security numbers 19 and his persistence
in providing the false identifying information he had previously supplied. 20
Sgt. Valdonado testified that the area of the police department where
10
(RR 3:30;22-25); (RR 3:31;1-24).
11
(RR 3:108;1-5).
12
(RR 2:186;1-5); (RR 2:196;20-25); (RR 2:197;1-3); (RR 2:212;1-8); (RR 2:214;6-25); (RR
2:215;1-8); (RR 3:32;3-19).
13
(RR 2:199;2-3); (RR 2:201;1-5); (RR 2:215;18-23); (RR 2:216;1-6); (RR 3:33;10-14); (RR
3:34;1-9); (RR 3:111;16-23).
14
(RR 3:36;4-10).
15
(RR 3:38;16-25); (RR 3:39;1-15).
16
(RR 3:39;16-19).
17
(RR 3:39;19-21); (RR 3:161;1-4).
18
(RR 3:41;1-4); (RR 3:161;5-13); (RR 3:164;1-17).
19
(RR 3:41;14-17); (RR 3:165;5-25); (RR 3:166;1-6).
20
(RR 3:164;18-25).
3
Appellant was that afternoon is limited in access—he even noted that “some of [the]
dispatchers don’t have that key to the back door.”21 Officer Forbes agreed that
anyone in that area of the building “is wearing a badge or employed by the
Brownfield Police Department,” which does not make habit of “plant[ing] dope on
suspects and/or their property.” 22
Sgt. Valdonado later testified on direct examination that he was aware of the
camera bag Appellant possessed that day, but he did not look inside it.23 He stated
that Appellant’s repeated lies about his identity and the source of the stolen bicycles
heightened his suspicion about what was contained in the camera bag. 24 At some
point, Officer Forbes asked Appellant if he would consent to the officer looking
inside the camera bag he had in his possession; Appellant declined the request.25
This heightened officers’ suspicions even more. 26
During his time with Appellant, Officer Forbes testified Appellant never
denied ownership of the camera bag.27 Sgt. Valdonado also pointed out that in his
experience, it was not uncommon for people to deny consent to search property on
the basis that “it’s not mine, so I can’t give you consent.”28 He noted that Appellant
21
(RR 3:161;25); (RR 3:162;1-6).
22
(RR 3:142;17-22).
23
(RR 3:167;14-17).
24
(RR 3:167;24-25); (RR 3:168;1-4); (RR 3:171;20-25); (RR 3:172;1-3).
25
(RR 3:41;24-25); (RR 3:42;1-4); (RR 3:127;1-4).
26
(RR 3:168;5-19).
27
(RR 3:81;6-10); (RR 3:132;12-19).
28
(RR 3:169;2-8).
4
never made those types of statements on June 24, 2016. 29 Ultimately, Officer Forbes
placed Appellant under arrest for theft of the bicycle and failure to identify. 30 When
Appellant was being booked into the Terry County Detention Center, an inventory
was done of all his property, pursuant to jail policies.31 As jailer Onesimo Garza
began to inventory Appellant’s property, the camera bag was accessed and
individual items were removed from it. 32 Officer Forbes witnessed Deputy Garza
remove suspected methamphetamine, a digital scale, and drug paraphernalia from
the camera bag.33 According to Deputy Garza, after he located the suspected
methamphetamine, Appellant said “that case wasn’t his,” and “that’s not mine.” 34
Officer Forbes then added the additional charge to Appellant’s booking, for
Possession of a Controlled Substance in Penalty Group 1, between one and four
grams, namely, methamphetamine.35 The suspected methamphetamine was
transported to the Lubbock DPS Crime Laboratory, 36 where it was tested and
confirmed to be methamphetamine, 37 with a weight of 2.77 grams. 38 When
29
(RR 3:169;9-11).
30
(RR 3:43;15-21).
31
(RR 3:44;13-25); (RR 3:45;1-12); (RR 3:147;1-7); (RR 3:152;8-11).
32
(RR 3:46;14-17); (RR 3:47;1-3); (RR 3:148;17-24).
33
(RR 3:49;20-25); (RR 3:49;4-6,8-25); (RR 3:50;1-18); (RR 3:147;12-25); (RR 3:149;15-16);
(RR 3:150;6-23).
34
(RR 3:154;1-8).
35
(RR 3:51;2-18); (RR 3:136;5-8).
36
(RR 3:189;19-23).
37
(RR 3:215;18-21).
38
(RR 3:216;2-9).
5
Appellant was released from the Terry County Detention Center, he collected the
camera bag from his property and took it with him when he left the facility, after
having singled out a different item as not belonging to him. 39 Appellant was indicted
on September 28, 2016 for Possession of a Controlled Substance, Penalty Group 1,
between one and four grams. 40
Prior to testifying, neither Officer Forbes nor Sgt. Valdonado viewed the
recorded video interview they conducted with Appellant.41 Both officers denied
tampering with the camera bag in any way, and absolutely rejected the inference that
either of them had “planted” the methamphetamine in Appellant’s bag. 42 After being
given the opportunity to refresh their recollections, 43 both officers testified again.
Officer Forbes clarified his testimony regarding the interview of Appellant:
he agreed that in fact, Appellant had undergone some questioning before Miranda
was issued; 44 and the camera bag was not placed in the briefing room upon his arrival
at the police department—rather, it was with him for a longer time than he initially
recalled. 45 Sgt. Valdonado also clarified his testimony regarding Appellant’s
interview: he acknowledged speaking with Officer Forbes prior to speaking with
39
(RR 3:196;8-23); (RR 3:197;5-16).
40
(CR 1;6).
41
(RR 3:84;19-20,24-25); (RR 3:85;11-13); (RR 3:124;20-24).
42
(RR 3:142;7-16,23-25); (RR 3:143;1-4); (RR 3:162;13-23).
43
(RR 4:30;2-11); (RR 4:44;10-23).
44
(RR 4:31;13-21).
45
(RR 4:33;4-25); (RR 4:34;1-10).
6
Appellant; 46 he corrected the previous day’s testimony by acknowledging Officer
Forbes had mentioned something to him about the camera bag before the interview
of Appellant began; 47 and he recalled conversing with Appellant regarding his
identity and the bag prior to Appellant being Mirandized. 48
SUMMARY OF THE ARGUMENT
The trial court’s rulings on evidentiary matters are given a significant amount
of deference, because it is in the best position to decide questions of admissibility.
Only when the trial court’s rulings fall outside the zone of reasonable disagreement
may they potentially be disturbed. Reversal is only warranted when Appellant’s
substantial rights are affected.
Appellant attempted to improperly impeach Sergeant Valdonado, but the trial
court did not abuse its discretion in disallowing it. Sgt. Valdonado did not testify
falsely or create a false impression for the jury. Appellant was not entitled to play
the entirety of his video interview, and his right to due process was not violated.
Appellant also failed to conduct a proper impeachment of Sgt. Valdonado’s alleged
prior inconsistent statements. Evidence of Sgt. Valdonado’s prior bad acts was not
admissible to impeach him because they were not being used for proper purposes
under the Rules of Evidence, and he did not create a false impression before the jury
46
(RR 4:46;1-12).
47
(RR 4:46;13-19).
48
(RR 4:47;1-15).
7
that would have warranted their admission to impeach him.
The trial court also correctly ruled that if Appellant admitted the video
interview, which contained his self-serving statements regarding where he obtained
the camera bag (and general denial of the bag being “his”), he would open the door
to his credibility being impeached.
Because this Court is to uphold the trial court’s rulings if they were correct
under any theory of law applicable to the case, and because there are multiple
theories of law which support the trial court’s rulings in this case, this Court should
deny all relief sought by Appellant and affirm his conviction.
ARGUMENT
Standard of Review
The review of a trial court’s ruling on admission or exclusion of evidence is
made for an abuse of discretion.49 Because it is in the best position to decide
questions of admissibility, the trial court’s decisions are disturbed only when they
are so clearly wrong as to fall outside the “zone of reasonable disagreement,” or zone
within which reasonable minds may differ. 50 A trial court does not abuse its
discretion if any evidence supports its decision. 51 On appeal, the trial court’s
49
Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999); Montgomery v. State, 810 S.W.2d
372, 391 (Tex. Crim. App. 1991) (op. on reh’g).
50
Montgomery, 810 S.W.2d at 391; Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007);
Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).
51
Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).
8
evidentiary ruling should be upheld if it was correct on any theory of law applicable
to the case. 52
If the Court finds error, it must then conduct a harm analysis to determine
whether the error calls for reversal of the judgment.53 Generally, so long as only the
rules of evidence are offended, erroneous exclusion of evidence is a non-
constitutional error governed by Texas Rule of Appellate Procedure 44.2(b). 54 Non-
constitutional errors are to be disregarded, so long as they do not affect the
substantial rights of the Appellant.55 Substantial rights are affected when the error
had a substantial and injurious effect or influence in determining the jury’s verdict.56
This analysis should include review of the record as a whole, 57 involving “any
testimony or physical evidence admitted for the jury’s consideration, the nature of
the evidence supporting the verdict, [and] the character of the alleged error and how
it might be considered in connection with other evidence in the case.” 58
52
De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009).
53
Tex. R. App. P. 44.2.
54
See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).
55
Tex. R. App. P. 44.2(b).
56
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997), citing Kotteakos v. United States,
328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946).
57
Kotteakos, 328 U.S. at 764-65, 66 S. Ct. at 1248.
58
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
9
I. Exclusion of Appellant’s attempts to impeach Sergeant Valdonado was
not an abuse of discretion.
Certainly, the credibility of any witness may be attacked by either party—but
the attack must be made within the Rules of Evidence.59 Impeachment of witness
testimony commonly involves prior statements inconsistent with the current
testimony, circumstances revealing bias, or that the witness has previously been
convicted of a felony or crime of moral turpitude. 60 Appellant complains he suffered
harm by the trial court’s prohibition of his attempts to impeach Sgt. Valdonado in
three areas: to correct his “false or materially misleading testimony,” 61 to confront
him with prior inconsistent statements, and to impugn his credibility by eliciting
facts regarding prior, unrelated bad acts.
a. Testimony presented by the State left no false impression before the jury,
and Appellant’s Due Process rights were not violated.
Testimony provided by a witness may be deemed “false” when a false
impression of the facts is communicated. 62 Generally, this situation arises when “the
witness omitted or glossed over pertinent facts.”63 The Due Process Clause of the
Fourteenth Amendment can be implicated when false testimony is used by the State,
59
See Tex. R. Evid. 607; Macias v. State, 136 S.W.3d 702, 704 (Tex. App.—Texarkana 2004, no
pet).
60
Macias at 704; citing Tex. R. Evid. 609(a), 613(a)-(b).
61
Brief of Appellant at 3.
62
Ex parte Robbins, 360 S.W.3d 446, 462 (Tex. Crim. App. 2011) (reh’g denied).
63
Id. (emphasis added)
10
either knowingly or unknowingly, to obtain a conviction.64 A false evidence claim
is predicated in fundamental due process guarantees that the trial as a whole should
be fair.65 But “to constitute a due process violation, testimony used by the State
must have been false, and it must have been material to the [Appellant’s] conviction,
meaning ‘there is a reasonable likelihood that the false testimony could have affected
the judgment of the jury.’” 66 Testimony which included improper suggestion,
insinuation, and especially assertions of personal knowledge have been held to
constitute “false testimony.” 67
Impeachment must be relevant, having some tendency to make the existence
of any fact of consequence to the determination of Appellant’s guilt more or less
probable. 68 Generally, a witness may not be impeached regarding collateral
matters. 69 A collateral matter is one which seeks only to test a witness’s general
credibility, or relates to facts which are irrelevant to the trial.70 The test as to whether
a particular matter is collateral is whether the cross-examining party would be
entitled to prove it or rely on it as a part of his case, tending to establish his plea.71
64
Ex parte Robbins at 459.
65
Id. at 464.
66
Id. at 459-60, quoting United States v. Agurs, 427 U.S. 97, 103-04, 96 S. Ct. 2392, 2397-98
(1976); and Ex parte Ghahremani, 332 S.W.3d 470, 478 (Tex. Crim. App. 2011).
67
Ex parte Robbins, 360 S.W.3d at 460.
68
See Macias v. State, 136 S.W.3d at 704, and see Tex. R. Evid. 401, 402.
69
Ramirez v. State, 802 S.W.2d 674, 675 (Tex. Crim. App. 2002).
70
Keller v. State, 662 S.W.2d 362, 365 (Tex. Crim. App. 1984).
71
Bates v. State, 587 S.W.2d 121, 133 (Tex. Crim. App. 1979).
11
Simply because the State inquires on direct examination of a police officer about an
interview conducted with the accused does not then make the video of the interview
admissible.72 The whole recording would be admissible only if necessary to prevent
a false impression or to explain or make testimony understood.73
Here, Appellant claims Sgt. Valdonado’s “false” testimony centers around
three topics: the timing of the Miranda warning, questions asked of Appellant before
Miranda, and the location of the camera bag during various phases of the
interrogation. The matters raised by Appellant are collateral at best, and at worst are
completely immaterial to Appellant’s guilt of the offense for which he was
convicted. Nothing in the record suggests that anything Valdonado testified to
which might be arguably “false” was the result of anything other than a mistake or
oversight. 74 Counsel for Appellant had the video before trial, fully cross examined
Sgt. Valdonado using information he obtained from it, and chose not to impeach him
with particular statements Sgt. Valdonado made on the video. 75 Additionally,
though Appellant argues Valdonado provided grave mischaracterizations of what
was contained on the video, he conveniently overlooks key corrections and
72
See White v. State, No. 05-14-01359-CR, 2016 Tex. App. LEXIS 5555, at *4-5 (Tex. App.—
Dallas May 25, 2016).
73
Id. at *8.
74
See Ramirez v. State, No. 05-13-00608-CR, 2014 Tex. App. LEXIS 8144, at *15 (Tex. App.—
Dallas July 28, 2014); and see (RR 4:44;10-23) (Valdonado had not had access to view the video
before providing his direct testimony).
75
See id., and see Vasquez v. State, 37 S.W.3d 229, 239 (Tex. Crim. App. 2002).
12
acknowledgments made by the witness after he had finally had a chance to review
the video itself:
• That he had in fact asked Appellant questions
prior to Miranda. 76
• That he was aware of the bag before he began
speaking with Appellant.77
• That he did recall having a conversation with
Appellant regarding the camera bag, prior to
Miranda. 78
Whether Appellant was Mirandized, when that occurred, and which questions
he was asked prior to Miranda being given are not material facts with any relevance
to whether Appellant did in fact possess a controlled substance on June 24, 2016. It
should be noted that the Appellant did not claim at trial that any portion of his
interview or statements to the police should be suppressed. 79 No instruction was
given to the jury regarding the Code of Criminal Procedure’s prohibition against use
of an involuntary statement against Appellant in its deliberations. 80 He now makes
the bold accusation that “Valdonado in fact violated [Appellant’s] constitutional
76
Compare (RR 4:46;24-25); (RR 4:47;1-10) with Brief for Appellant at 28 (“[Appellant] wanted
the jury to see that Valdonado asked him questions about the bag and his reaction to [Appellant’s]
answers, all prior to giving the Miranda warning”), and at 31 (“The jury was deprived of learning
that Valdonado in fact violated [Appellant’s] constitutional rights by questioning him prior to
administering the Miranda warning.”).
77
Compare (RR 4:46;13-19) with Brief for Appellant at 18-19 (“Valdonado insisted that he did
not interrogate [Appellant] on any matter, other than his identity, prior to the Miranda warning.”).
78
Compare (RR 4:47;11-14) with Brief for Appellant at 18-19, 24 (“When Valdonado was asked
whether he interrogated [Appellant] about the camera bag prior to the Miranda warning, he
persisted in his assertions that he only asked questions about [Appellant’s] identity.”).
79
See (CR 14;25-39).
80
(CR 33;91-94); and see Tex. Code Crim. P. art. 38.22 §6.
13
rights by questioning him prior to administering the Miranda warning,” but he fails
to make a cognizable claim on appeal.81
Neither did Appellant argue to the jury that anything gleaned from the police
interview with Appellant was improper – he focused in his argument on the fact that
Appellant repeatedly denied the camera bag was his.82 Appellant gives no
explanation as to, and fails to expound on, how his being barred from bearing out of
any of these facts substantially harmed him, or if it affected the jury’s verdict at all.
Even if Sgt. Valdonado’s testimony is deemed to have created a false impression
with the jury, and even if Appellant had been allowed to clear up the alleged false
impression created by Valdonado regarding the timing of the Miranda warning, and
what was asked of Appellant before it was issued, those matters being proved do not
change the facts the jury relied on in convicting him.
Here, Appellant was charged and convicted of possessing between one and
four grams of methamphetamine. 83 Uncontroverted evidence proved that when
Appellant was detained by Officer Forbes outside of the house on Buckley, he was
in possession of the camera bag. 84 At trial, Appellant tried to insinuate misconduct
on the part of either or both Officer Forbes and Sgt. Valdonado, but never produced
81
Brief of Appellant at 30.
82
(RR 4:77;23-25); (RR 4:78;2-6).
83
(CR 1;6); (CR 36;97-99).
84
(RR 2:198;23-25); (RR 2:199;1-3); (RR 2:201;1-7); (RR 2:215;18-22); (RR 2:216;1-6); (RR
3:34;6-9); (RR 3:75;1-11).
14
any proof aside from accusations.85 Even if Appellant had been able to correct the
alleged false impression left by Sgt. Valdonado’s testimony regarding the location
of the camera bag after Appellant was brought back to the police department, nothing
changes the facts the jury relied on in reaching their verdict. Appellant alone
possessed the camera bag when he was detained on Buckley. 86 Appellant alone
worked to prevent officers from identifying who he was 87 and what was contained
in the bag. 88 And Appellant alone possessed methamphetamine that day. He offers
no explanation on appeal to articulate how clarification of where the bag was exactly
at various points of his interview with officers mattered at all to the jury’s verdict.
To compare, in Alcorta v. Texas, a murder case, the defendant claimed he
murdered his wife when he came home to find her being intimate with another
man. 89 The man, who was the only eye-witness to the murder, testified that he
merely had a casual friendship with the wife—and nothing past that.90 The Supreme
Court held that the man’s testimony was false and created a false impression of the
facts, because after Alcorta’s conviction, the man filed a sworn statement admitting
he was the wife’s “lover and paramour,” who shared an intimate physical
85
See (RR 4:74;13-23); (RR 4:76;1-19); (RR 4:77;10-25).
86
(RR 2:198;23-25); (RR 2:199;1-3); (RR 2:201;1-7); (RR 2:215;18-22); (RR 2:216;1-6); (RR
3:34;6-9); (RR 3:75;1-11).
87
(RR 3:163;22) to (RR 3:166;17).
88
(RR 3:127;1-4).
89
Alcorta v. Texas, 355 U.S. 28, 78 S. Ct. 103 (1957).
90
Id. at 29.
15
relationship with the wife on many occasions. 91 A material fact in Alcorta’s trial,
and in the defensive theory of the case, was his motive in committing the murder.92
Because the jury in his case had been left with the false impression created by the
witness, there had been a substantial effect on the jury’s verdict that affected
Alcorta’s access to due process of law. 93 Without correction of the false impression,
the jury had been left without a reason for him to have committed the act. 94
When we examine the record and bear out whether Appellant suffered harm
by not being allowed to correct what he maintains were false impressions left by Sgt.
Valdonado,95 it becomes apparent that the facts he claims were material had no
substantial effect on the jury’s verdict. Unlike in Alcorta, where the false testimony
had a direct and substantial impact on the crime for which Alcorta was convicted, as
well as the punishment assessed against him, nothing about when Miranda was
issued, what was asked before that occurred, or where the camera bag was inside the
police department during his interview have any bearing on the jury finding
Appellant guilty of possessing the methamphetamines later found inside the bag.
91
Alcorta at 30-32.
92
Id. at 28-29 (explaining that at the time, in Texas, Alcorta would have been eligible for a
maximum sentence of five years’ incarceration, had the jury found he committed the murder under
influence of sudden passion arising from adequate cause—his jury had found him guilty of
committing the murder with malice and sentenced him to death).
93
Id. at 31-32.
94
See id.
95
But see (RR 4:20;13-17) (“I mean, the way that these officers have testified previously, it’s not
false, but it leaves the jury with a false impression about where this camera case is going, when
the Miranda warnings are given, and those sorts of things.”).
16
The trial court did not abuse its discretion in disallowing admission of the entire
video for purposes of correcting the “false impression,” which was not even material
to the case, and it certainly did not harm Appellant by affecting the jury’s verdict.
The trial court’s ruling should be sustained.
b. Appellant did not properly impeach Sergeant Valdonado under Texas
Rule of Evidence 613(a).
To properly impeach a witness under Rule 613(a), a party must (1) establish
the identity of the statement (by time, place, and person), (2) provide a summary of
the statement’s contents, and (3) the witness must not unequivocally admit what the
statement contains.96 The witness is not absolutely required to deny the statement,
but extraneous evidence may not be admitted if the witness unequivocally admits
having made it. 97 Where an admission is only qualified or partial, and not
unequivocal, the prior statement may be used to impeach.98 “The rule of
admissibility of evidence of prior inconsistent statements should be liberally
construed and the trial judge should have discretion to receive any evidence which
gives promise of exposing falsehood.”99
Here, these foundational requirements were not met by Appellant sufficient
to accomplish his goal of admitting the entirety of the video interview. Before the
96
Lund v. State, 366 S.W.3d 848, 854 (Tex. App.—Texarkana 2012, no pet); Tex. R. Evid. 613(a).
97
Flowers v. State, 438 S.W.3d 96, 103 (Tex. App.—Texarkana 2014, pet. ref’d).
98
Id., citing McGary v. State, 750 S.W.2d 782, 786 n.3 (Tex. Crim. App. 1988).
99
Lund v. State, 366 S.W.3d at 854, citing Aranda v. State, 736 S.W.2d 702, 707 (Tex. Crim. App.
1987).
17
entire content of Sgt. Valdonado’s statements contained on the video would be
admissible under 613(a), Sgt. Valdonado would have had to unequivocally or
partially deny each one of the statements he made on the recording. Even still, that
would only make his statements (Sgt. Valdonado’s) admissible as extrinsic evidence
to impeach him. 100
While counsel did identify the statement,101 and Sgt. Valdonado was
permitted to view it one time (after he had been subject to direct examination),102 the
record shows counsel for Appellant never fully pursued impeachment under 613(a).
He never actually attempted to introduce extrinsic proof of the statements he claimed
were inconsistent with Valdonado’s in-court testimony.
On direct, the State did not inquire as to the nature of pre-Miranda
conversation with Appellant, when Sgt. Valdonado referenced the camera bag, or
whether Appellant told Sgt. Valdonado why he was in possession of the bag, but
counsel for Appellant asked about these subjects and more during his reserved cross
examination of the witness.103 Contrary to what Appellant claims in his brief, Sgt.
Valdonado did not deny all of counsel for Appellant’s claims about what was
contained in the “horrible,”104 at times “virtually inaudible”105 quality recording he
100
See Tex. R. Evid. 613(a)(4).
101
(RR 4:44;17-23).
102
(RR 4:44;19).
103
(RR 4:47;2-7); (RR 4:47;11-17); (RR 4:47;20-22).
104
(RR 4:16;5-6).
105
(RR 4;16;8-9).
18
sought to admit. 106 Instead, he primarily made unequivocal admissions,107 along
with several partial or qualified admissions, 108 and at least one unequivocal denial.109
Here, Appellant attempts to persuade the Court that the trial court arbitrarily,
and without reason prevented him from admitting and playing the contents of his
video interview with Brownfield police. He glosses over the comments made by the
trial court regarding potential proper use of the video:
• “You can obviously use it to refresh his memory at any
time, whether it’s in evidence or not.” 110
• “You can impeach the officers with the video [ . . . ], if
you wish to do so.”111
• “I think you’re entitled to impeach any witness with a
video if they made misstatements, did not state
something correctly with the time frame. I believe you
can impeach them with the portions of the video that
show that.” 112
106
See also Tex. R. Evid. 403, and Gerron v. State, 524 S.W.3d 308, 321 (Tex. App.—Waco 2016,
pet ref’d) (“[P]robative value refers to the inherent probative force of an item of evidence – that
is, how strongly it serves to make more or less probable the existence of a fact of consequence to
the litigation – coupled with the proponent’s need for that item of evidence.”).
107
See (RR 4:46;24-25); (RR 4:47;1-5) (admitted he asked Appellant questions prior to Miranda);
(RR 4:46;24-25); (RR 4:47;1) (recalled conversation with Appellant about the camera bag); (RR
4:47;2-5) (did discuss the camera bag with Appellant prior to Miranda); (RR 4:47;23-25); (RR
4:48;1) (left the room after initial discussion with Appellant, to discuss case further with Forbes).
108
See (RR 4:46;16-19) (believed there was mention of the camera bag before entering the
interview room the first time); (RR 4;47;11-14) (believed he mentioned the camera bag in initial
conversation with Appellant); (RR 4:47;15-17) (did not recall when he asked Appellant where the
bag came from); (RR 4:47;20-22) (did not believe Appellant gave explanation of where the bag
came from).
109
See (RR 4:49;14-18) (disagreeing with the characterization that he sought the same type of
information from Appellant before and after Miranda).
110
(RR 3:176;12-14).
111
(RR 4:20;18-20).
112
(RR 4:28;11-15).
19
Instead of properly impeaching Officer Forbes or Sgt. Valdonado under Rule
613(a) during examination, counsel for Appellant said, “I’ll tell you what. Since the
audio is so horrible, I’ll just withdraw the exhibit and ask my questions of this
witness.”113 Counsel proceeded to fully cross examine Officer Forbes, who
apparently sufficiently corrected his recollections/testimony for Appellant’s liking,
after being allowed to view the video. But since Sgt. Valdonado did not agree with
all of counsel’s characterizations of the interview of Appellant, Appellant made a
bill of review and now argues he should have an opportunity to try again.
Throughout his brief, Appellant makes conclusory statements that he was
harmed by not being allowed to impeach Sgt. Valdonado with his prior inconsistent
statements. The basis for his argument appears to be that (1) he dislikes the inference
Valdonado made, between Appellant telling police they needed a search warrant
before they could search the camera bag, and that being indicative of Appellant’s
ownership of the bag; 114 and (2) he wanted to show the jurors that the pre-Miranda
interview of Appellant was much more adversarial than Valdonado would admit. 115
Appellant should not now reap the benefit of having a second chance at the
expense of blaming the trial court. He could have properly impeached Sgt.
Valdonado under Rule 613(a), had he asked to do what the judge suggested: impeach
113
(RR 4:28;16-25).
114
Brief of Appellant at 27-28.
115
Id. at 28.
20
with the portions of the video that showed the witness’s testimony misstated or made
inconsistent statements compared to what was contained on the video. He made no
attempts to do anything besides offer the entirety of the video interview, which is
not permitted under 613(a).
Because the trial court did not act outside the zone of reasonable
disagreement, and because counsel for Appellant has failed to show that he was
harmed by not being allowed to impeach Sgt. Valdonado’s alleged prior inconsistent
statements, the trial court’s ruling should be sustained.
c. Appellant was properly barred from impeaching Sergeant Valdonado
with Valdonado’s prior bad acts.
Except for criminal convictions which may be used to impeach a witness
(pursuant to Rule 609), no party may inquire into or offer extrinsic evidence to prove
specific instances of a witness’s conduct in order to attack the witness’s character
for truthfulness.116 The Rules of Evidence serve as a strict gatekeeper, limiting use
of prior criminal convictions against a testifying witness.117 But if the witness’s
testimony has created a false impression as to his prior arrests, convictions, charges,
or trouble with the police, an exception exists which makes those otherwise
inadmissible facts fodder for proper impeachment of the witness. 118
116
Tex. R. Evid. 608(b).
117
See Tex. R. Evid. 609.
118
Macias v. State, 136 S.W.3d at 705, citing Prescott v. State, 744 S.W.2d 128, 130-31 (Tex.
Crim. App. 1988).
21
When a witness makes a blanket assertion of fact that leaves a false impression
with respect to his prior behavior, he opens the door on his otherwise irrelevant past
criminal history, and he may be impeached by opposing counsel exposing the
falsehood.119 The exception does not extend to any and all false impressions that
might be left by a witness, and considered “false” by the party allegedly adversely
affected.120 Rather, the witness must have specifically left a false impression
regarding his prior arrests, convictions, charges, or trouble with the police in order
to warrant impeachment by admission of those facts. 121
Evidence of other crimes, wrongs, or acts is admissible if it has relevance apart
from its tendency to prove the character of a person, in order to show he acted in
conformity therewith on a particular occasion. 122 If the opponent of the evidence
objects, the proponent must satisfy the trial court that the extraneous offense
evidence has relevance apart from its character conformity value. 123 Under Rule
404(b), there is no permissible purpose for offering the evidence of Sgt. Valdonado’s
prior criminal activity against him. 124 Appellant cannot show that anything related
to the admission Sgt. Valdonado made in a previous court proceeding, nearly seven
119
Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).
120
Macias at 705.
121
Id., citing Prescott at 131.
122
Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990); and see Tex. R. Evid.
404(b).
123
Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997)
124
See Tex. R. Evid. 404(b)(2).
22
years prior to his testimony against Appellant,125 regarding his prior bad acts, has
anything to do with any permissible purposes for this evidence being admitted under
404(b)(2). Appellant has to try to convince the Court the false impression exception
applies to Sgt. Valdonado’s testimony—otherwise, the Rules prohibit any use of the
witness’s prior bad acts against him.
Under Rule 608(b), Appellant was barred from using any specific instances
of Sgt. Valdonado’s conduct to impeach him, unless it was done to correct a false
impression Valdonado left before the jury. 126 So, he argues that Sgt. Valdonado’s
testimony on direct examination left a false impression before the jury regarding his
“integrity and credibility.” 127 Sgt. Valdonado testified on direct that he did not plant
drugs in Appellant’s bag; 128 that if he had, he would risk losing his job, his career,
and his credibility; 129 and that in his opinion, any police officer who tampered with
evidence in the manner Appellant had suggested would risk jail time and a loss of
his peace officer’s certification.130
Appellant claims that Sgt. Valdonado’s testimony created a false impression
that he would lose his job and his credibility if he engaged in police misconduct, and
therefore, Appellant should have been able to correct the “false impression” by
125
(RR 3:173;12-25).
126
See Macias v. State at 705.
127
Brief of Appellant at 33; (RR 3:172;18-20).
128
(RR 3:162;17-18).
129
(RR 3:162;19-21).
130
(RR 3:162;24-25); (RR 3:163;1-3).
23
introducing evidence of Valdonado’s admission of previously selling and using
marijuana. But as the trial court pointed out, Appellant did not even know when or
on how many occasions these prior bad acts of Sgt. Valdonado had taken place.131
The record is silent as to whether these prior bad acts even occurred while Sgt.
Valdonado was a police officer. Neither the State nor the witness ever said Sgt.
Valdonado had “never engaged in criminal acts in his past”; no one insinuated or
stated that he had a “spotless” record, either.132 Therefore, the door to any prior
misconduct on his part was not opened.
Appellant articulates no harm he allegedly suffered by exclusion of this
evidence.133 It can hardly be said the trial judge’s decision regarding Sgt.
Valdonado’s prior bad acts falls outside the zone of reasonable disagreement. The
trial court did not summarily deny Appellant’s request to go into the matter in
impeaching Sgt. Valdonado. 134 Instead, the court dismissed the jury, as counsel for
Appellant requested, and allowed counsel to explain and inquire about what he
thought to be a viable avenue for impeachment of Sgt. Valdonado. 135 The court even
questioned whether the proposed impeachment testimony might fall under Rule 609,
131
(RR 3:173;22-25); (RR 3:174;1).
132
See Lomas v. State, No. 13-10-00242-CR, 2013 Tex. App. LEXIS 6866, at *40 (Tex. App.—
Corpus Christi June 6, 2013).
133
See Brief of Appellant at 33-34.
134
See (RR 3:172;5-25).
135
(RR 3:172;18-25); (RR 3:173;1-6).
24
by its further questioning of counsel for Appellant.136 After exploring all possibly
permissible uses for the impeachment evidence, the court decided it was not
admissible. This Court must sustain that decision.
II. Ruling that admission of Appellant’s police interview video would open
the door and allow the State to impeach Appellant’s credibility was not
an abuse of discretion.
Generally, a defendant’s self-serving statements made out of court are
inadmissible unless they meet limited exceptions.137 Unless part of the statement
has previously been offered by the State, the statement is necessary to explain or
contradict acts or declarations first offered by the State, or when the accused’s self-
serving declaration was res gestae of the offense or arrest, it is not admissible.138
The Appellant maintains no general right to present favorable evidence.139
Constitutional error does not automatically exist simply because Appellant was
unable to present his case to the extent and in the form desired, so long as he was
not prevented from presenting the substance of his defense to the jury. 140
In any case, when a hearsay statement is admitted in evidence, the declarant’s
credibility may be attacked by “any evidence that would be admissible for those
136
(RR 3:173;12-25); (RR (3:174;1).
137
Singletary v. State, 509 S.W.2d 572, 576 (Tex. Crim. App. 1974).
138
Id.
139
See Potier v. State, 68 S.W.3d 657, 659 (Tex. Crim. App. 2002).
140
Id. at at 666.
25
purposes if the declarant had testified as a witness.” 141 The court may admit
evidence of the declarant’s conduct, offered to impeach him, regardless of when it
occurred or whether he has had an opportunity to explain or deny it. 142
The State did not offer the video in presentation of its case in chief, for various
reasons.143 Had the State offered the video, it would have been admissible under the
Rules of Evidence, at least as to Appellant’s statements. 144 But since Appellant was
the proponent of the video, which did contain self-serving statements of
Appellant, 145 the trial court appropriately assessed that Rule 806 would (or could)
apply, had the video been offered and admitted.
Here, the trial court made the following comments on the record, regarding its
ruling that if Appellant sought admission of the video interview the State could
potentially then impeach Appellant’s credibility:
• “Is there any statements on the video where he
denies possession or denies that it was his?”146
(sic)
• “Okay, here’s the way I see it. If there’s
statements on the audio that you’re introducing
or your client’s giving statements from where he
obtained it from or denying possession of it, then
I’m going to allow the State to introduce items
that would be relevant to credibility. That
doesn’t necessarily mean every conviction or
141
Tex. R. Evid. 806.
142
Id.
143
(RR 3:84;12-25); (RR 4:24;8-23).
144
See Tex. R. Evid. 801(e)(2).
145
(RR 4:25;3-18); (RR 4:36;2-20).
146
(RR 4:24;24-25); (RR 4:25;1)
26
every offense. It’s those that go towards
credibility.” 147
• “The difference is you’re putting your client on
through a video of statements made to the police.
Therefore I think it does open up his credibility
at that point in time. You’re proffering the
evidence, not the State. If it’s just the fact that
he’s been to the pen or been arrested, I’m not
going to allow the State to introduce anything
that’s basically not testimony. It’s just the
testimony that denied [possession of the camera
bag].” 148
As the State argued, were the Appellant’s hearsay statements admitted, they
could act as the equivalent of a statement made on the stand; therefore, his statements
would be subject to impeachment and rehabilitation just as his testimony would.149
When the accused opens the door regarding his own credibility, the State may then
impeach it just as if he had testified. 150
Even though the court never specifically cited to Rule 806, clearly, the court’s
ruling is well-founded in it. And despite the fact that the rule actually provides more
latitude in terms of what is admissible to attack a declarant’s credibility, 151 the trial
court in this case indicated its intent to limit the State’s planned impeachment of the
147
(RR 4:26;21-25); (RR 4:27,1-7).
148
Compare (RR 4:27;15-25) with Brief of Appellant at 24 (“[T]he trial court abused its discretion
when it ruled that [Appellant] would open up his entire criminal background if he impeached
Valdonado with the portions of the video that demonstrated that Valdonado was testifying
falsely.”).
149
See Bee v. State, 974 S.W.2d 184, 190 (Tex. App.—San Antonio 1998, no pet).
150
See Appling v. State, 904 S.W.2d 912, 916-17 (Tex. App.—Corpus Christi 1995, pet. ref’d).
151
Tex. R. Evid. 806 (“any evidence” is admissible to attack a declarant’s credibility, “regardless
of when it occurred or whether declarant had an opportunity to explain or deny it”).
27
Appellant to that which would be admissible under Rule 609.152 Given the existence
of Rule 806, and the fact that the trial judge here correctly noted it would apply if
counsel for Appellant sought admission of the entirety of the video interview (which
included Appellant’s statements), the trial court did not abuse its discretion, and
Appellant has failed to meet his burden on this point. The Court should sustain the
trial court’s ruling.
PRAYER
For the foregoing reasons, the State prays the Court of Appeals affirm the
decisions to exclude evidence made by the trial court, and sustain the judgment of
conviction in this case.
152
(RR 4:26;21-25); (RR4:27;1-4,22-25).
28
Respectfully submitted:
______________________________
LAURIE L. KEY
TERRY COUNTY ATTORNEY
PRO TEM
1213 Ave. K
Lubbock, Texas 79401
(806) 771-3933 – Phone
(806) 771-3935 – Facsimile
lauriekeylaw@gmail.com
State Bar № 24032624
Attorney for the State
CERTIFICATE OF SERVICE
By my signature above, I certify that, pursuant to Tex. R. App. P. 9.5, a true
and correct copy of Appellee’s Brief has been served upon Appellant by and through
his attorney of record on appeal, Paul E. Mansur, Attorney at Law, by e-mail and
inclusion via electronic filing on this, the 30th day of May, 2018.
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4(i)(3), I certify that this document was
produced on a computer using Microsoft Word 2013 and contains 8,182 words, as
determined by the computer software’s word-count function, excluding the sections
of the document specified in Tex. R. App. P. 9.4(i)(1).
___________________________
Laurie L. Key
Counsel for the State
29