NO. PD
- 1136

- 15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS AT AUSTIN

_________________________ JOSE MAYA , Appellant

v. THE STATE OF TEXAS, Appellee

_________________________ On appeal in Cause No. F12-34710-T from the 283 rd Judicial District Court Of Dallas County, Texas And on Petition for Discretionary Review from the Fifth District of Texas at Dallas In Cause No. 05- 14 -00486-CR

_________________________ APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

_________________________ Counsel of Record: Lynn Richardson Nanette Hendrickson Chief Public Defender Assistant Public Defender Dallas County Public Defender’s O ffice Katherine A. Drew State Bar Numb er: 24081423 Chief, Appellate Division 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207-399 (214) 653-3550 ( telephone) (214) 653-3539 ( fax)

ATTORNEYS FOR PETITIONER/ APPELLANT PD-1136-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 10/5/2015 2:24:07 PM Accepted 10/7/2015 2:51:52 PM

ABEL ACOSTA CLERKii TABLE OF CONTENTS

INDEX OF AUTHORITIES

................................ ................................ ................... iii STATEMENT REGARDING ORAL ARGUMENT

................................ ............... 2 STATEMENT OF THE CASE

................................ ................................ ................. 2 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

.................... 2 STATEMENT OF FACTS

................................ ................................ ........................ 3 GROUND FOR REVIEW

................................ ................................ ......................... 3 Whether the Court of Appeals misapplied Rule 613(a) (4) of the Texas Rules of Evidence by admitting extrinsic evidence of J’s prior inconsistent statement

................................ ................................ ............. 3 ARGUMENT

................................ ................................ ................................ ............. 3 FACTS

................................ ................................ ................................ ............. 3 APPLICABLE LAW

................................ ................................ ....................... 5 THE COURT OF APPEALS’ HOLDING IS INCORRECT

......................... 6 CONCLUSION

................................ ................................ ............................... 9 PRAYER FOR RELIEF

................................ ................................ ............................ 9 CERTIFICATE OF SERVICE

................................ ................................ ................ 10 CERTIFICATE OF COMPLIANCE

................................ ................................ ....... 10iii INDEX OF AUTHORITIES

Cases A randa v. State , 736 S.W.2d 702 (Tex. Crim. App. 1987)

................................ .......................... 8 Huff v. State , 576 S.W.2d 645 (Tex. Crim. App. 1979)

................................ ...................... 6, 8 Maya v. State , No. 05

- 14

- 00486

- CR, 2015 Tex. App. LEXIS 8156, * 9 (Tex. App.

— Dallas August 4, 2015)

................................ ................................ ........................ 3, 7, 8 McGary v. State , 750 S.W.2d 78 2 (Tex. Crim. App. 1988)

................................ .......................... 6 Ranson v. State , 707 S.W.2d 96 (Tex. Crim. App. 1986)

................................ ........................ 8, 9 Rules Tex. R. Evid. 613(a)

................................ ................................ .............................. 61 LIST OF PARTIES

TRIAL COURT JUDGE Rick Magnis , Judge , Presiding Judge
APPELLANT Jose Maya
APPELLANT’S ATTORNEYS AT TRIAL Sarah Duncan , State Bar No. 24055477
ON APPEAL Nanette Hendrickson , State Bar No. 24081423
Assistant Public Defenders Dallas County Public Defender’s Office 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207

- 4399
STATE’S ATTORNEYS AT TRIAL Jason Fine , State Bar No. 240 68658
ON APPEAL Alexis E. Hernandez , State Bar No. 24055658 Assistant District Attorneys Dallas County District Attorney’s Office Frank Crowley Court s Building 133 N. Riverfront Blvd., LB

- 19 Dallas, Texas 75207

- 4399

TO THE HONORABLE COURT OF CRIMINAL APPEALS:2 Jose Maya , Appellant, respectfully presents to this Honorable Court his Petition for Discretionary Review of the Fifth District Court of Appe als’ Opinion affirming the trial court’s judgment.
STATEMENT REGARDING ORAL ARGUMENT Appellant requests oral argument because this case presents a question of law on issues having statewide impact and p ossible reoccurrence. Oral argument may be helpful to the members of this Court in the resolution of the issues presented.
STATEMENT OF THE CASE Appellant was charged by indictment with the offense of Indecency
wi th a Child by Contact. (CR: 11). Appellant pled not guilty to the primary charge in the indictment. (CR: 66). A jury trial was held, and the jury found Appellant guilty of the offense. (RR6: 71). After a hearing on punishment, the court assessed punishment at fourteen years’ imprisonment. (RR6: 66). Judgment was entered by the trial court on April 16, 2014. (CR: 66). A notice of appeal was timely filed. (CR: 69).
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
On August 4 , 201 5 , in an un published opinion authored by Justice

Evans , the Court of Appeals for the Fifth District of Texas affirmed the trial court’s judgment

. Maya v . State , No. 05

- 14

- 00486

- CR, 201 5 Tex. App.3 LEXIS 8156 , * 9 (Tex. App.

— Dallas August 4 , 201 5 )

. This Court granted
an extension of time to file a Petition for Discret ionary Review, which is timely if filed on or before October 5 , 201 5

. STATEMENT OF FACTS The facts of this case, which are extensive, are adequately recited in the Court of Appeal ’ s opinion, which is attached to this Petition as required by T EX

. R. A PP . P. 68.4 (i). Suffice it to say that Appellant was charged with and convicted of indecency with a child by contact . ( CR: 11, 71 ; RR 6: 71 )

. GROUND FOR REVIEW
Whether the Court of A p peals misapplied Rule 613(a)(4) of the Texas Rules of Evidence by admitting extrinsic evidence of J ’s prior inconsistent statement
. ARGUMENT
The Court of Appeals incorrectly applied Rule 613 which states
extrinsic evidence of a prior inconsistent statement can be admitted when the witness does not “unequ ivocally admit making the statement.” T EX

. R.

E VID . 613(a)(4).
FACTS

T he complaining witness, J, testified as a witness for the State . (RR5:
76

- 134). J testified that her sister told J to tell her aunt, Isabel , that4 Appellant, th eir father, touched J ’s private part. (RR5: 83). J testified that
her sister texted Isabel who then took J and her sister to Braum’s the next day. (RR5: 84

- 85). J stated that she did not tell Isabel anything while at Braum’s, but her sister told Isabel tha t Appellant had been touching J since the seventh grade. (RR5: 85). The prosecutor then asked J if she had previously spoken with Christine Mack (Mack), a forensic interviewer at the Children’s Advocacy Center. (RR5: 89). J responded, “I remember talking t o somebody.” (RR5: 89). J stated she remembered some of the specific statements she made to Mack. (RR5: 89). Defense counsel objected, saying:
MS. DUNCAN: Objection. This is hearsay. He’s trying to back door in her statement and use it as evidence.

MR. FINE: It’s her own words, Your Honor. It’s not hearsay. It’s improper use of impeachment.
MS. DUNCAN: Can I ask at least for a limiting instruction that it be used only for impeachment and not as substantive evidence?
THE COURT: Yes.
MR. FINE: Your Honor, at this point she hasn’t even said it’s inconsistent. I’m asking what she told Christine. She didn’t say she didn’t say. At this point it’s her testimony. I haven’t impeached her.
THE COURT: I understand. At the appropriate time I will give the app ropriate instruction.5 (RR5: 91

- 92). At no time did the trial court give an oral or written instruction to the jury regarding J ’s statement. (RR: passim ; CR: passim ). The State then continually asked J regarding specific statements she ma de to Mack, the fo rensic interviewer . (RR5: 92

- 106). J ’s answers varied depending on the question; however, if she stated she did not remember, the prosecutor would ask if seeing the video of her forensic interview would refresh her memory. (RR5: 95, 96, 97, 98, 100, 102, 1 02

- 103, 104). J answered in the affirmative to that question almost every time. (RR5: 95, 96, 97, 99, 102, 103, 104). On two occasions she answered, “maybe” and “probably.” (RR5: 100, 101). Part way through J ’s testimony, defense counsel objected again to the State testifying in order to get the statements admitted. (RR5: 97

- 98). At no time did J deny speaking with the forensic interviewer or giving her a statement. (RR: passim ).
APPLICABLE LAW Rule 613(a) of the Texas Ru les of Evidence provides the following: 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 the witness6 unequivocally admits having made such statement, extri nsic evidence of same shall not be admitted.

Tex. R. Evid. 613(a) ; McGary v. State , 750 S.W.2d 782, 786 (Tex. Crim. App. 1988) ( quoting Huff v. State , 576 S.W.2d 645, 647 (Tex. Crim. App. 1979)
THE COURT OF APPEALS’ HOLDING IS INCORRECT
The Court of Appeals’ decision is in conflict with the holding of this
Court

. The Court of Appeals held in the case at bar that because J testified in a reluctant manner regarding her statement to Christine M ack, the forensic interviewer, extrinsic evidence of the forensic interview was admissible. However, the rule does not predicate admission of extrinsic evidence on how one testifies to the content of the statement, but whether they “unequivocally
admit ma king the statement .” Tex. R. Evid. 613(a)(4)

. The Court of Appeals cited in its opinion the foundation laid by the
State for admission of extrinsic evidence of J’s interview with Christine
Mack

. Q. Okay. All right. And t his is over two years ago, right? A. Yes. Q. And this has been really difficult on you, right? A. Yes. Q. Are there a lot of things that you don't really want to talk about or want to remember about that? A. Yes.7 Q. So you’re not saying it didn't happ en. You just don’t remember that? A. Yes. Q. Okay. Do you remember a couple weeks after Braum’s that you went down to a place called the Children’s Advocacy Center and talked to a woman named Christine Mack? A. I remember talking to somebody. Q. Do you remember she had dark hair, long dark hair? A. Yes. Q. And do you remember what you told Christine Mack? A. No. Maya , 201 5 Tex. App. LEXIS 8156 at *5; (RR5: 89)

. The Court of Appeals appears to confuse be ing reluctant to testify to the contents of the statement with failing to unequivocally admit making the statement at all . The Court of Appeals relies on J’s reluctance when testifying about the interview. Id . at
*6

. While J might have been hesitant while testifying about the contents of the statement, at no time during her testimony did she deny or fail to “unequivocally admit” making a statement to Christine Mack. Rather, as seen in the exchange cited above , J stated that she remembered talking to someone at the Children’s Advocacy Center. (RR5: 89). That testimony admits making the statement in question. The Court of Appeals also disregarded the fact that not only did J unequivocally admit to making a pr ior statement, but she admitted that the prior statement contradicted her trial testimony. The State acknowledged and

J confirmed during her testimony that she was not going to testify consistent8 with her prior statements to her aunt or the forensic interv iewer, Christine Mack. (RR5: 83, 109). Indeed, the State told J regarding her prior statements “...I understand and I understand that what you are going to say today is that what you said back then wasn’t the truth, right?” (RR5: 83). J then replied, “yes.” (RR5: 83). The Court of Appeals cited Aranda v. State for the proposition that “ if a witness unequivocally admits a prior statement is inconsistent with his trial testimony the process of impeachment is accomplished and other evidence of the prior statem e nt or confession is
in admissible.” Maya , 201 5 Tex. App. LEXIS 8156 at *6 , citing Aranda v.
State , 736 S.W.2d 702, 708 (Tex. Crim. App. 1987) . However, they failed to apply it to J’s testimony that her prior statements were inconsistent with her trial testimony. Since J admitted that her prior statements were inconsistent with her testimony at trial, the extrinsic evidence of her
statements to Mack should have been held inadmissible. The present case is not unlike the situation in Huff v. State where the prosecutor read grand jury testimony to the witness and asked if she remembered making the statement, without fi rst eliciting a denial of the prior statement

. Huff , 576 S.W.2d at 647

- 648 (Tex. Crim. App. 1979). “A negative response to this question is not a denial that she made the
statement.” Ranson v. State , 707 S.W.2d 96, 102 (Tex . Crim. App. 1986)9 ( Miller, J., dissenting). Because the prosecutor “ failed first to elicit a denial of the prior statement, [ he ] likewise interjected into evi dence a large portion of a purported prior statement that was otherwise inadmissible. ” Id

. In the case at bar, the State improperly admitted portions of J’s
forensic interview by continually asking if she remembered speci fic
statements to Christine Mack. However, J never unequivocally admitted making these statements to Mack first. By asking questions in this way, the State admitted portions of the interview which would have been otherwise inadmissible. As such, contrar y to the Court of Appeal’s opinion, this was improper impeachment.
CONCLUSION The Court of Appeals’ decision to affirm the trial court’s ruling admitting

J ’s prior in consistent statement is in conflict with this Court’s rul ing . This Court should grant discretionary review to resolve this discrepancy between the Court of Appeal’s ruling and the ruling of this Court.
PRAYER FOR RELIEF For the reasons herein alleged, Appellant prays this C ourt grant this petition and, upon reviewing the judgment entered below, remand the case
for a new trial.10 Respectfully submitted, Lynn Richardson Chief Public Defender

/s/ Nanette Hendrickson Nanette Hendrickson Assistant Public Defender State Bar No. 24081423
CERTIFICATE OF SERVICE I hereby certify that on the 5 th day of October , 2015 , a true copy of the foregoing petition for discretionary review was s erved on Lori Ordiway , Assistant District Attorney, Dallas County Criminal District Attorney’s Office, 133 N. Riverfront Blvd., LB

- 19, 10th Floor, Dallas, Texas, 75207, by electronic and hand delivery; and was also served on, Lisa C. McMinn, State Prosecuting Attorney, P.O. Box 1 3046 , Austin, Texas, 78711 by electronic delivery and by depositing same in the United States Mail, Postage Prepaid

. /s/ Nanette Hendrickson Nanette Hendrickson
CERTIFICATE OF COMPLIANCE I certify that the foregoing Petition for Discretionary Review contains 2 , 1 9 3 words. /s/ Nanette Hendrickson Nanette HendricksonUser Name: nanette hendrickson

Date and Time: Oct 02, 2015 2:26 p.m. EDT Job Number: 24536766 Document(1)

1. **Maya v. State, 2015 Tex. App. LEXIS 8156** Client/Matter: -NoneNarrowed by: Content Type Narrowed by Cases Court: Texas

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nanette hendricksonNo Shepard’s SignalTM

As of: October 2, 2015 2:26 PM EDT Maya v. State Court of Appeals of Texas, Fifth District, Dallas August 4, 2015, Opinion Filed
No. 05-14-00486-CR
Reporter 2015 Tex. App. LEXIS 8156 JOSE MAYA, Appellant v. THE STATE OF TEXAS, Appellee

Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.
Prior History: [*1] On Appeal from the 283rd Judicial District Court, Dallas County, Texas. Trial Court Cause No. F12-34710-T. Core Terms

interview, impeachment, limiting instruction, trial court, prior inconsistent statement, remember, forensic, admit, witness’s, touching Case Summary

Overview
HOLDINGS: [1]-In a trial for indecency with a child by contact, the prosecutor was properly permitted to question the complainant regarding her prior inconsistent statements to a forensic interviewer because the state provided a proper foundation under Tex. R. Evid. 613 by asking the complainant about the time, place and person to whom she made the statements and providing her an opportunity to explain or deny the statements; [2]-Error in failing to give a limiting instruction on use of the prior inconsistent statements was harmless because defendant confessed in his voluntary interview with a detective and the detective testified that the confession corroborated what the complainant said in her forensic interview.

Outcome
Judgment affirmed. LexisNexis® Headnotes

Criminal Law & Procedure > ... > Standards of Review > Abuse of Discretion > Evidence
HN1 A trial court’s decision to admit or exclude evidence is viewed under an abuse of discretion standard. A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement.
Evidence > ... > Credibility of Witnesses > Impeachment > Pri or Inconsistent Statements
HN2 A witness’s prior inconsistent statements are admissible to impeach a witness. The rule of admissibility of evidence of prior inconsistent statements should be liberally const rued and the trial judge should have discretion to receive any evidence which gives promise of exposing a falsehood.
Evidence > ... > Credibility of Witnesses > Impeachment > Pri or Inconsistent Statements
HN3 See Tex. R. Evid. 613(a)

. Evidence > ... > Credibility of Witnesses > Impeachment > Pri or Inconsistent Statements
HN4 There are three requirements to establish the proper predicate or foundation for impeachment testimony: (1) identification (time and place and person to whom the statement was made); (2) the contents of such statement; and (3) the witness must be afforded an opportunity to explain or deny such statement.
Evidence > ... > Credibility of Witnesses > Impeachment > Pri or Inconsistent Statements
HN5 Tex. R. Evid. 613(a) does not require a witness to deny a prior inconsistent statement. Instead, the rule provides that extrinsic evidence of a witness’s prior inconsistent state ment may not be admitted if the witness unequivocally admits making the statement. Tex. R. Evid. 613(a) . If a witness
nanette hendricksonunequivocally admits a prior statement is inconsistent with

his trial testimony the process of impeachment is accomplished and other evidence of the prior statement or confession is inadmissible.
Criminal Law & Procedure > Trials > Jury Instructions > Limiting Instructions
HN6 A trial court must provide a limiting instruction that restricts the evidence to its proper scope and instruct the jury accordingly. Tex. R. Evid. 105(a)

. Criminal Law & Procedure > Trials > Jury Instructions > Limiting Instructions
HN7 The plain language of Tex. R. Evid. 105(a) seems to place the relevant timing for a limiting instruction request at the moment the evidence is admitted.
Evidence > ... > Credibility of Witnesses > Impeachment > General Overview Evidence > ... > Credibility of Witnesses > Impeachment > Pri or Inconsistent Statements
HN8 Impeachment is aimed at attacking the credibility of a witness. Testimony admitted only for impeachment purposes is without probative value and cannot be considered as substantive evidence. One of the common methods of impeachment is by the use of prior inconsistent statements, oral or written, under oath or not. The jury may consider the inconsistency as damaging to the witness’s credibility, but may not use the evidence substantively.
Evidence > ... > Credibility of Witnesses > Impeachment > Pri or Inconsistent Statements Evidence > ... > Exemptions > Prior Statements > Inconsistent Statements
HN9 Tex. R. Evid. 607 permits the use of prior inconsistent statements that are hearsay for the purposes of impeachment

. Courts, of course, must be careful to give jury instructions limiting the evidence to the issue of impeachment.
Criminal Law & Procedure > Trials > Jury Instructions > Limiting Instructions
Criminal Law & Procedure > ... > Standards of Review > Harmless & Invited Error > Jury Instructions
HN10 When a trial court errs by refusing to give a contemporaneous limiting instruction, that error is non-constitutional and is subject to a harmless error analysis pursuant to Tex. R. App. P. 44.2(b) . Under Tex. R. App. P. 44.2(b) , nonconstitutional error that does not affect appellant’s substantial rights must be disregarded.

Counsel: For Appellants: Nanette Hendrickson, Dallas, TX.
For Appellees: Susan Hawk, Alexis E. Hernandez, Dallas, TX.
Judges: Before Justices Fillmore, Myers, and Evans. Opinion by Justice Evans.
Opinion by: DAVID EVANS Opinion

MEMORANDUM OPINION Opinion by Justice Evans Jose Maya appeals his conviction for the offense of indecency with a child by contact. In two issues, appellant contends that: (1) the trial court abused its discretion in allowing the prosecutor to question a witness regarding her prior inconsistent statement because it was improper impeachment and (2) the trial court erred by not giving a limiting instruction to the jury when requested by appellant. Appellant seeks a reversal and remand for further proceedings. We affirm.

BACKGROUND In July 2012, appellant was indicted for the offense of indecency with a child by contact. Appellant pleaded not guilty and the trial commenced on April 15, 2014. During trial, Detective Kim Vanderveen, the lead detective in this case, testified that she observed the forensic inter view between the victim, J (appellant’s daughter), and an interviewer at the Dallas Children’s Advocacy Center (DCAC). Detective Vanderveen spoke with appellant when he voluntarily visited her and he confessed [*2] to having touched J ′′ once a month ′′ for ′′ more or less a year. ′′
Maria, J’aunt, testified that she received a text message in March 2012 from her niece, G, stating that she and her stepsister, J, needed to speak with her. The next day, Maria picked up G, J, J’s friend, and her sister (G and J’s mother) and took them to Braum’s. Maria testified that she took the girls to the restroom and J told Maria that her father had been touching her. Maria said that J acted nervous and sad and told her that it started when she was in the seventh Page 2 of 6 2015 Tex. App. LEXIS 8156, *1

nanette hendricksongrade. At the time J spoke with Maria, she was in the eighth

grade. Christine Mack, a former forensic interviewer for the DCAC, testified about her interview with J. She testified that a forensic interviewer is a trained professional who interviews children of suspected abuse in a non-leading and non-suggestive manner. She stated that J was very upset and emotional once they started speaking about the abuse. Mack further testified that she did not see any signs of coaching or lying during J’s interview.
J also testified and stated that she did not want to be in court. At trial, J testified that G told her to say that her dad had been touching her. J also testified [*3] that her mom had health problems and had just gotten out of the hospital around March 2012. J said that there were a lot of things that she did not want to talk about or remember. At trial, she testified in answers to appellant’s counsel questions that her stepsister came up with this story about her dad and she went along with it to split up their parents and have more freedom without him around. When the State asked her about her interview at the Dallas Children’s Advocacy Center, the following exchange took place: Q. Do you remember -- do you remember what you told Christine at the Advocacy Center? A. Some of it. Q. Tell the jury some of what you told Christine. Appellant’s counsel: Objection. This is hearsay. He’s trying to back door in her statement and use it as evidence. State’s attorney: It’s her own words, Your Honor. It’s not hearsay. It’s improper use of impeachment. 1
THE COURT: Overruled. Appellant’s counsel: Can I ask at least for a limiting instruction that it be used only for impeachment and not as substantive evidence? THE COURT: Yes. State’s attorney: Your Honor, at this point she hasn’t even said it’s inconsistent. I’m asking what she told Christine. She didn’t say she didn’t [*4] say. At this point it’s her testimony. I haven’t impeached her. THE COURT: I understand. At the appropriate time I will give the appropriate instruction. After J testified, the trial court never gave a limiting instruction. On April 16, 2014, the jury convicted appellant of indecency with a child by contact and the court sentenced him to fourteen years of imprisonment.

ANALYSIS
I. The Trial Court Properly Allowed the State to Question a Witness About Statements Made During Her Forensic Interview
Appellant argues that the trial court abused its discretion when it allowed the prosecutor to question J regarding her prior statement to Mack because it was improper impeachment under Rule 613 of the Texas Rules of Evidence. We disagree.

A. Standard of Review
HN1 A trial court’s decision to admit or exclude evidence is viewed under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) . A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996)

. HN2 A witness’s prior inconsistent statements are admissible to impeach a witness. See Aranda v. State, 736 S.W.2d 702, 707 (Tex. Crim. App. 1987) . The rule of admissibility of evidence of prior inconsistent [*5] statements should be liberally construed and the trial judge should have discretion to receive any evidence which gives promise of exposing a falsehood. Id.

B. Texas Rule of Evidence 613 Rule 613(a) of the Texas Rule of Evidence provides as follows:

HN3 (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.

1 It appears the State was informing the court what the correct objection was rather than commenting on its intent in asking the question. Page 3 of 6 2015 Tex. App. LEXIS 8156, *2

nanette hendrickson(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. (5) Opposing Party’s Statement . This subdivision (a) does not apply to an opposing party’s statement under Rule 801(e)(2).

See T EX . R. E VID . 613(a)

. C. Analysis Appellant argues that the State [*6] did not lay the proper foundation for admitting J’s prior inconsistent statements. The State argues that appellant failed to preserve any alleged error on this issue by failing to make a timely, specific objection. For purposes of our analysis, we have elected to reach the merits of the issue. 2
As stated above, HN4 there are three requirements to establish the proper predicate or foundation for impeachme nt testimony: (1) identification (time and place and person to whom the statement was made); (2) the contents of such statement; and (3) the witness must be afforded an opportunity to explain or deny such statement. See id.; Flowers v. State, 438 S.W.3d 96, 103 (Tex. App.—Texarkana 2014, pet. ref’d) . Here, the State established the foundation for its impeachment testimony in the following exchange: Q. Okay. All right. And this is over two years ago, right? A. Yes. Q. And this has been really difficult on you, right? A. Yes. Q. Are there a lot of things that you don’t really want to talk about or want to remember about that? A. Yes. Q. So you’re not saying it didn’t happen. You just don’t remember that?
A. Yes. Q. Okay. Do you remember a couple weeks after Braum’s that you went down to a place called the Children’s Advocacy Center and talked to a woman named Christine Mack? A. I remember talking [*8] to somebody. Q. Do you remember she had dark hair, long dark hair?
A. Yes. Q. And do you remember what you told Christine Mack?
A. No. In the above exchange, the State identified the time, place and person to whom J made the statements. Following this exchange, the State went through the content of J’s prior interview with Mack. J often testified in a reluctant manner when the State asked about her statements during the forensic interview by stating that she ′′ didn’t remember ′′ or
′′ didn’t know. ′′ Regardless of her reluctance, J was provided an opportunity to explain or deny her prior statements. Accordingly, we conclude that the State properly establish ed the foundation for its use of J’s impeachment testimony. Appellant also asserts that the witness must deny making the statement in order to admit the prior inconsistent statement. HN5 Rule 613(a) , however, does not require the witness to deny the statement. Instead, the rule provides that extrinsic evidence of a witness’s prior inconsistent state ment may not be admitted if the witness unequivocally admits making the statement. See T EX . R. E VID . 613(a) , Aranda, 736 S.W.2d at 708 (if a witness unequivocally admits a prior statement is inconsistent with his trial testimony the process of [*9] impeachment is accomplished and other evidence of the prior statement or confession is inadmissible). As

2 We note, however, that there is a persuasive argument that appellant’s first issue on appeal has been waived. When the hearsay/impeachment objection was raised, the trial court did not make a ruling but noted that an appropriate instruction would be given at the appropriate time. Appellant did not reassert his objection during J’s testimony or obtain a ruling on the objection. As such, the error has not been preserved. See Ethington v. State , 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) ( ′′ In general, T EX . R. C RIM . E VID . 103(a)(1) and T EX . R. A PP

. P ROC . 52 govern preservation of error concerning the admission of evidence in criminal cases. Combined, these rules state that if, on appeal, a defendant claims the trial judge erred in admitting evidence offered by the State, this error must have been preserved by a proper objection and a ruling on that objection. The objection must be timely; that is, the defense must have objected to the evidence, if possible, before it was [*7] actually admitted. If this was not possible, the defense must have objected as soon as the objectionable nature of the evidence became apparent and must have moved to strike the evidence, that is, to have it removed from the body of evidence the jury is allowed to consider. ′′ ). Page 4 of 6 2015 Tex. App. LEXIS 8156, *5

nanette hendricksondiscussed above, J often testified in a reluctant manner when

the State asked her about the forensic interview. J remembered some of her interview statements but not others. After review of J’s direct examination, however, it would be difficult to say that J unequivocally admitted that her prior interview was inconsistent with her trial testimony. As our review of the record supports the trial court’s ruling, we cannot say the trial court clearly abused its discretion. Accordingly, we overrule appellant’s first issue.
II. Failure to Give Limiting Instruction Resulted in Harmless Error In his second point of error, appellant contends that the trial court erred by not giving a limiting instruction at the time it was requested. 3 As stated above, appellant requested a limiting instruction when the State first asked J about the Mack interview:
Appellant’s counsel: Can I ask at least for a limiting instruction that it be used only for impeachment and not as substantive evidence?
THE COURT: Yes. State’s attorney: Your Honor, at this point she hasn’t even said it’s inconsistent. I’m asking what [*10] she told Christine. She didn’t say she didn’t say. At this point it’s her testimony. I haven’t impeached her. THE COURT: I understand. At the appropriate time I will give the appropriate instruction. The State argues that appellant’s counsel did not request any additional instructions after this exchange and that counsel abandoned and waived his original objection. Although we agree that a limiting instruction was appropriate in this situation, we overrule this issue because such error was harmless given the evidence presented.
HN6 A trial court must provide a limiting instruction that restricts the evidence to its proper scope and instruct the jury accordingly. See T EX . R. E VID . 105(a) . At the time that the State began questioning J about her interview with Mack, J had already testified that G told her to say that her [*11] dad had been touching her. Accordingly, it was appropriate for appellant’s attorney to request a limiting instruction when the State asked about the Mack interview because J had already indicated that she had changed her version of the events at issue. See Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001) ( HN7 ′′ [T]he plain language of Rule 105(a) seems to place the relevant timing for a limiting instruction request at the moment the evidence is admitted. ′′ ). Here, appellant was entitled to a limiting instruction once the State began questioning J about her former interview. See Adams v. State, 862 S.W.2d 139, 147-48 (Tex. App.—San Antonio 1993, pet. ref’d) ( HN8

′′ [I]mpeachment is aimed at attacking the credibility of a witness. Testimony admitted only for impeachment purposes is without probative value and cannot be considered as substantive evidence. One of the common methods of impeachment is by the use of prior inconsistent statements, oral or written, under oath or not. The jury may consider the inconsistency as damaging to the witness’s credibility, but may not use the evidence substantively. ′′ ) (internal citations omitted); Miranda v. State, 813 S.W.2d 724, 735 (Tex. App.—San Antonio 1991, pet. ref’d) ( HN9 ′′ Rule 607 permits the use of prior inconsistent statements that are hearsay for the purposes of impeachment. Courts, of course, must be careful to give jury instructions limiting the evidence to the issue of impeachment. ′′ ). Having [*12] found error, we proceed to conduct a harm analysis. See Jones v. State, 119 S.W.3d 412, 423-24 (Tex. App.—Ft. Worth 2003, no pet.) ( HN10 ′′ When a trial court errs by refusing to give a contemporaneous limiting instruction, that error is non-constitutional and is subject to a harmless error analysis pursuant to Texas Rule of Appellate Procedure 44.2(b)

. ′′ ). Here, we have a fair assurance that this error did not affect any substantial right belonging to appellant. See T EX . R. A PP . P. 44.2(b) (nonconstitutional error that does not affect appellant’s substantial rights must be disregarded). The appellant confessed to having touched J ′′ once a month ′′ for ′′ more or less a year ′′ in his voluntary interview with Detective Vanderveen. The exhibit of the interview was admitted into evidence. Further, Detective Vanderveen testified that appellant’s confession corroborated what J said in her forensic interview. In addition, J’s aunt, Maria, testified that J told her that J’s father had been inappropri ately touching her. Finally, Mack, the forensic interviewer, tes tified that she did not see any signs of coaching or lying during J’s interview. Considering the record in its entirety, we concl ude that the trial court’s error was harmless and overrule appellant’s second issue.

CONCLUSION We resolve appellant’s issues against him [*13] and affirm the trial court’s judgment.

3 Appellant makes a passing reference to the fact that the trial court ′′ did not include a written instruction in the jury charge either. ′′ Appellant, however, does not present any argument or analysis regarding this allegation. As appellant has failed to conduct any Almanza analysis, the Court will restrict its analysis to the alleged failure to instruct the jury at the time requested. Page 5 of 6 2015 Tex. App. LEXIS 8156, *9

nanette hendrickson/s/ David Evans

DAVID EVANS JUSTICE Do Not Publish

T EX . R. A PP . P. 47 JUDGMENT
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 4th day of August, 2015. Page 6 of 6 2015 Tex. App. LEXIS 8156, *13

nanette hendrickson