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 283rd 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 Office

 Katherine A. Drew State Bar Number: 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

CLERK
ii

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.......................................................................10
iii

INDEX OF AUTHORITIES

Cases

Aranda 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 782 (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)..............................................................................................6
1

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. 24068658

ON APPEAL

Alexis E. Hernandez, State Bar No. 24055658

Assistant District Attorneys 

Dallas County District Attorney’s Office

Frank Crowley Courts 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 Appeals’ 

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 possible 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 

with 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, 2015, in an unpublished 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, 2015 Tex. App. 
3

LEXIS 8156, * 9 (Tex. App.—Dallas August 4, 2015). This Court granted 

an extension of time to file a Petition for Discretionary Review, which is 

timely if filed on or before October 5, 2015.

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 TEX. R. APP. 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; RR6: 71).

GROUND FOR REVIEW

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.

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 “unequivocally admit making the statement.” TEX. R.

EVID. 613(a)(4).

FACTS

The 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, that 
4

Appellant, their 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 that 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 to 

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 appropriate 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 made to 

Mack, the forensic 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, 102-103, 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 Rules 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 witness 
6

unequivocally admits having made such statement, extrinsic 

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 Mack, 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 making 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 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. 
7

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 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, 2015 Tex. App. LEXIS 8156 at *5; (RR5: 89). The Court of Appeals 

appears to confuse being 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 prior 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 consistent 
8

with her prior statements to her aunt or the forensic interviewer, 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 statement or confession is 

inadmissible.” Maya, 2015 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 first 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 evidence 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 specific

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, contrary 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 inconsistent statement is in conflict with this Court’s ruling. 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 Court 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 5th day of October, 2015, a true copy of 

the foregoing petition for discretionary review was served 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 13046, 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 

2,193 words.

/s/ Nanette Hendrickson

Nanette Hendrickson 
User 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:

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Cases Court: Texas

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nanette hendrickson
No 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 > Prior

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 construed

and the trial judge should have discretion to receive any

evidence which gives promise of exposing a falsehood.

Evidence > ... > Credibility of Witnesses > Impeachment > Prior

Inconsistent Statements

HN3 See Tex. R. Evid. 613(a).

Evidence > ... > Credibility of Witnesses > Impeachment > Prior

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 > Prior

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 statement

may not be admitted if the witness unequivocally admits

making the statement. Tex. R. Evid. 613(a). If a witness

nanette hendrickson
unequivocally 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 > Prior

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 > Prior

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 interview

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 hendrickson
grade. 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 TEX. R. EVID. 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 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. 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 established

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 statement

may not be admitted if the witness unequivocally admits

making the statement. See TEX. R. EVID. 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, TEX. R. CRIM. EVID. 103(a)(1)

and TEX. R. APP. PROC. 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.′′).

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nanette hendrickson
discussed 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 TEX. R. EVID. 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

TEX. R. APP. 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 inappropriately

touching her. Finally, Mack, the forensic interviewer, testified

that she did not see any signs of coaching or lying during J’s

interview. Considering the record in its entirety, we conclude

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.

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nanette hendrickson
/s/ David Evans

DAVID EVANS

JUSTICE

Do Not Publish

TEX. R. APP. 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.

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