### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00583
- CR

Derrick Jamal McKenzie, Appellant

v. The State of Texas, Appellee

FROM THE 155TH DISTRICT COURT OF FAYETTE COUNTY NO. 2018R
- 117, THE HONORABLE JEFF R. STEINHAUSER, JUDGE PRESIDIN G

M E M O R A N D U M O P I N I O N

Der rick Jamal McKenzie was charged with capital murder for allegedly killing
Sand ra P feiffer while committing or attempting to comm it robbery. See Tex. Penal Code § 19 .03

. At the time of the off

ense, McKen zi e wa s sixteen years old , and the case was tran sferred from a juvenile court to a criminal trial court. See Tex. Fam. Code §§ 53.04

- .07 , 54.02

. At the end
of the gu ilt

- innocen ce phase, the jury found McKenzie guilt y of capital murder . The tr ial court

automat ically assessed McKenzie ’ s punishment at life imprisonment with the possibility of parole. See Tex. Penal Code § 12.31(a) ( 1) . In on e issue on appeal, McKenzie argues that the
trial court erred by sustaini ng th e S t ate ’ s objection to the a dmission of a rec ord ed int erview of
one of the testifying witnesses . We will affirm the trial court ’ s judgment of conviction.2 BACKGROUND
Before the m urder , McKenzie was arrested for another offense , placed in
handcuffs b ehind his back, and t hen taken to a juvenile p rocessing office

. McKenzie es caped
from the facility but was unable to remove his handcuffs ; however, he was able to move his
handcuff ed hands to the front of his body . After escaping, McKenzie travelled to his family ’ s
p roperty where several family mem b ers we re living in separate homes . One of the relatives who lived on the prop erty was McKenzie ’ s u ncle Ra ymond McKenzie. 1 At the time relevant to this
offense , Raymond w a s dating Pfei ffer . On the night in question, Pf eiffer drove to Raymond ’ s home in h e r Jeep and spent the nig ht. In addition, another one of Raym ond ’ s nephe ws, Oct avian McKenzie, also spent t he night

. That night, McKenzie made it to Raymond ’ s house , went inside
the home, and interacted with Octavian.

After McKenzie arrived at the home , Raymond woke up early in the morning to driv e to work. Severa l hours later, Raymond called P feiff er t o wake her u p for work. When he
could not reach her after calling her multiple times, Raymond called his sister to check on
Pfeiffer

. Raymond ’ s sist er walk ed to Raymo n d ’ s house, en te red the home, saw Octavian on the living room co uch, assumed he was asleep, and walke d to Raymond ’ s bedroom whe re she discovered Pfeiffer ’ s dead body . After seeing Pfeif fer ’ s body, Raymond ’ s s ister went to a nearby relative ’ s home , and the relative called t he police

. S everal law

- enforceme nt of ficers responded to th e 911 call , including R a nger B rent Barina.

A f ter leaving Raymond ’ s property, McKenzie drove to the home of a friend of
one of his relatives , where the police l a ter discovered Pfeiffer ’ s Jeep . While McKenzie was a t

1 Be cause McKenzie and several of the witness es at trial sh are the sa me surna me, we will refer to McK enzie ’ s relatives by their first names for ease of reading.3

the friend ’ s house, his fa mily members dr ove to the house to pick him up , and one of his
relatives cal led the police to report that McKenzie had been found

. When McKenzie was arrested, he was still i n the h andcuffs that he had on when he escaped , and those handcuffs were collected for evidence. McKenzie was transp orted to the police station for questioning. During

a re corded interview, McKe n zie made the following statement s:

• He went to Raymond ’s h om e and hung out with Octavian until Raymond left for work ;

• He went i nto Raymond ’s bedroom a fter Raymond left and a fter Oc tavian went to sleep and took Pf eiffer ’s keys to he r Jeep , took Pfeiffer ’s ce llphone , and used the phone to check his Facebook page ;

• Pf e i ffer heard him enter the bedroom and tried to stab him with a knif e ;

• He grabbed the knife from Pf eif f er , and sh e ran at him and fell on the k nife ;

• Pfeiffer started screaming ;

• He went to make sure that Octavian was stil l asleep and that no o ne else heard t he screa ming ;

• H e did not know what to do after Pfeiffer started scr eaming and d id not want her to wake up Octav ian so he continued stabbing her “ so she would be quiet ” ;

• Pfeiffer ’s breathing became shallower , and he hid th e knife under Raymond ’s bed ;

• T he k n ife was “ a big bu tcher knife ” with a “ b lack ” handle ;

• He chang ed out of his shorts, placed the shorts under a be d in o ne of the guestrooms, took a shower , and changed into different clothes ; and

• He l eft Pfeiffer ’s phone at Raymon d ’s home be cause he was in a hurry and drove away in her Jeep

.4

At the con clusion of the intervi ew, Ranger Barina took swabs of McKen zie ’ s fingers for
DNA testing. Following the interview, Ranger Barina went to Raymond ’ s house and found a knif e with a black handle with blood on it u nd er Raymond ’ s bed , a pair of shorts with blood
stains under a bed in one of the guestrooms , and another knife i n the guestroom

. In addition, Ranger Barina collected Pfeiffer ’ s p hone, and he di scovered during t he investigation that the phone “ was logged i nto . . . McKenzie ’ s F a cebook page and it appe ared that [McKenzie] had been reading some mes sages his father had sent him through Facebook. ”

During the investigation, t esting performed on the handcuffs that McKenzie was wearing before his appreh ension fo r this offense , on the knife recovered from Raymond ’ s bedroom, and on the knife and shorts discovered in the guestroom all had a positive presumptive
result for th e presence of blood

. DNA testing perform ed on those items showed that the
contributor to the DNA profile obtained from all the items was Pfeiffer “ to a reas onable degree of scientific certainty. ” In addition, a fingerprint obtain ed from the drive r ’ s side door of Pfeiffer ’ s Jeep matched McKenzie ’ s known fing erprints. The auto psy performed on Pf e iffer ’ s body
revealed that she had sustained 35 shar p - f or ce injuries, including stab s and inci sion injuries, and
th at she sustained four potentia lly life

- thre ateni ng injuries to her n eck, chest, back, and abdomen.

After considerin g the evidence pres ent ed at trial, the jury found McKenzie guilty
of capital murder.

DISCUSSION

On appeal, McKen zie contend s that the trial court abused its discretion when it
d etermined tha t a recording of a n interview of Octavian by the inves tigating police officers5

sh ould n ot be admitted under the rule of optional completeness found in Rule 107 of the Rul es of
Evidence. See Tex. R. Evid. 107

.

Duri ng his direct testimony, Oct avian referenced the different ti mes tha t he

s poke with the police. Octavian testified tha t he spo ke with the police officers when the y f irst

ar riv ed at the home and told them that he was asleep and did not see or hear anything r e lated

to the off ense. This inter action was not recorded. Oc tavian then testified that he spo ke with the

o fficers l ater tha t same day an d told them that he saw McKenzie walking back and forth with a backpack and heard “ so mething ” ; however, Octavian also s aid that he did not actu ally hear anything and ch anged his story because the polic e were treat ing him like a suspect and bec ause he was trying to tell them what he thought th ey wanted to hear

. This interaction was also not

recor ded. Next , Octavian testified that he went to the p olice station to provi de a formal

statement and tol d the officers th at he le t McKenzie in to the hom e on the night in question and fell asleep before the offense occurred

. In addition, Oc tavian testif ied th at what he “ told them
that third time w as the whole truth. ” This formal inter view was recorded. The State neither asked any specific questions abou t the interview nor attempt ed to offer any portions of the

recor ded intervie w into the record either by reading them or offering clips of the intervi ew during its examination

. Further, Octavi an e xplaine d that he was ar rested for giving a fal se
statement t o the police and that when the officers later approached him about giving a fourth statement, he told the off

icers that he did not have anything else to say on the matter. Wh ile cross - examin ing Octav ian , McKenzie asked Octavian if he r emembere d hi s third statement to the police and then sought to admit a recording of the statement under the rule
of optional completeness bec ause, according to McKenzie, Octavian ’ s testimon y ga ve the false impre ssi on to the jury that the only thing h e m entioned du ring the th ird statement was that he6

was asleep during the offense even though Octavian made several other statements, including a
statement regarding a knif e . At that point , the trial court did not rule on the admissibility of the recording but explained that it wo uld keep the request under advisement

.

During further cross

- exami nation by McKenzie, Octavian admitted th at he tol d the police dur ing his s econd statement that he woke up on the night in question after h earing screaming and tha t he saw McKenzi e walking t hrough the house. Further, Octavian testi fied that
in the recorded interview he told the police that he w as a sleep at the ti me of the offense but also
told them that he wo ke up at so me point. Additionally, Oc tavian admitt ed tha t his statement to the poli ce in which he said that he woke up and saw McKenzie with a knife was in consistent
with his trial testimo ny, t hat there were other inco nsiste ncies between his testimony and the third

sta teme nt that he gave to the p olice, that he g ave “ [a] lot ” o f different statements about the events in question, and that he made some of his stateme nts during the recorded interview beca use the police were threa tening to arrest him . McKenzie again moved to admit the recording of the third
interview unde r the rule of option a l complete ness and argued that Octavian ’ s earlier testimony
left a false impression in the minds of the jurors that he was asleep during the of fense. T he S t ate objected and argu ed that the rule of optional completeness does not a pply simply bec ause a witn ess refers to a prior statement and highli gh ted that Octavian admitted that there were
inconsistencies in his statements . After a hearing outside the presence of the jury , the trial court

susta ined the S t ate ’ s object ion.

On appeal, McKenzie a rgu es that the trial court erred b ecause the recording was admissible under the rule of optional completeness to co u nter the false impression presente d to the jury through Octav ian ’ s testimony. McKenzie highlights t hat Octavian admitted that he had

a mot i ve to li e t o the police b ecause t he police thought that he was a s uspect and ther efore urges7

that Octavian “ was quite capable of lying and creating a false impression t o the jury ” and that

“ [t] here can be no great er false impression given to a jury tha [n] a witness w ho testi fies t hat he
tol d the ‘ whole truth ’ . . . can be proven to have lied. ” Moreover, McKenzie argue s that the rule
of optional complet eness was designed t o prevent this type of false impr ession and that the
trial court ’ s r uling allowed Octa vian to “ co ntinue his fal sehoo ds ” and removed from the defense

“ the weapon he had to counter the false impression left by [Octavian] ’ s self serving sta tement. ” 2

Appellate courts review a trial court ’ s ruling on the a dmission or exclusio n of
evidence for an abuse of d iscretion. See Tillman v. State , 354 S.W.3d 425, 435 (Tex. Crim. App. 2011)

. Under that standard, a trial court ’ s ruling will only be deemed an abuse of discretion if
it is so clearly w rong as to lie out si de “the zone of re asonable disagreemen t,” see Lop ez v. State , 86 S.W.3d 228, 230 (Tex. Crim. App. 2002) , or is “arbitrary or unreasonable,” State v. Mechler , 153 S.W.3d 435, 439 (Tex. Crim. App. 2005)

. Moreover, the ruling will be uphe ld provided that

t he trial court ’ s dec ision “is reasonably supported by the recor d and is correct under any theory of law applicable to the case.” Carrasco v. State , 154 S.W.3d 127, 129 (Tex. Crim. App. 2005)

.

2 O n appe a l , the S t ate contends that McKenzie failed to preserve this i ssue f or app ellate conside ration

. When McKenzie sought to admit the recording of Octavian ’s interview, the trial court quest i oned McKenzie about why the e ntire recording should be admitted as opposed to specific statements from the recording, and McKenzie rep eatedly argued that th e entire recording was necessary to allow t he jury to understand Octavian ’s testimony regarding his third int erview and offered a copy of the recording . On appeal , the State argues that Mc Kenzie wa s required to provide an offer of proof regarding the cont en ts of the reco rding but failed to preserv e this is sue for appellate consideration by seeking to have the entire recording admitted without identifying the specific portions t hat should be admitted. See Tex. R. Evid. 103 ; Mays v. State , 2 85 S.W.3d 884, 8 89 (Tex. Crim. App. 2009)

. G ive n our ultim ate disposition , we will assume for the purpose of resolving this issue that McKenzie prese rved this complaint for appellate consideration. Cf. Castillo v. State , 573 S.W.3d 869, 87 8 (Tex. App.

— Ho uston [1st Dist. ] 2019, pet. ref’d ) (explaining that object ion to admission of entire recordi ng was sufficient to preserve issue for appel late consideration even thou gh defendant did not “ identi fy specific statements within the interview that were hearsay ” where defe ndant “ objected to the entirety of th e interview as hearsay and mai ntain[ed] th is pos itio n on appeal ” )

.8

In addition, an appellate court reviews the trial court ’ s ruli ng in light of the r ecord before
the cour t “at the t ime the rul ing was made.” Khoshayand v. State , 179 S.W.3d 779, 784 (Tex. App.

— Dallas 2005, no pet.)

.

The rule of option al completeness is found in Rule 107 of the Rules of Evidence ,

w hich reads , in rel ev ant part, as follo ws:
If a party introd uces part o f an act, d eclaration, conversation, writing, or recorded statement, an adverse party may inquire into any other part on the same subj ect. An adverse party may also introduce any other act, declaration, c o nversation, writing , or recorded stateme nt that is necessary t o explain or allow the trier of fact to fully understand the part offered by the opponent.

Tex. R. Evid. 107

.

The rule is an exception t o the Rules of Evidence prohibiting the admission of hearsay , Castillo v. State , 573 S.W.3d 869, 8 77 (Tex. Ap p.

— Hous ton [1st D ist. ] 2019 , pet. re f ’ d) ;

see T ex. R. Evid. 801

- 02 , “ and permits the introduction of otherwise inadmissible evidence when
that evid ence is necessary to fully and fairly explain a matte r ‘ opened up ’ by the adverse party , ” Whipple v. State , 2 81 S.W. 3d 482, 500 (T ex . App.

— El Paso 2008, pet. ref ’ d)

. However, the rul e only allows for the introduction of “ those parts of a recorded statement necessary to make the previ ously admitted evidence f ul ly and fai rly unde rstood. ” Castillo , 573 S.W.3d at 8 79

. “ [ T ]he
rule i s not invoked by the mere reference to a document, statement, or act. ” Walters v. State , 247 S.W.3d 204, 218 (Tex. Crim. App. 20 07 ) ; see Mick v. State , 256 S.W.3d 828 , 831 (Tex. App.

— T exarkana 2008, no pet.) ; see also Goldberg v. State , 95 S.W.3d 345, 387 (Tex. App.

— Houston [1st Dist.] 2002, p et. ref ’ d ) (observing that reference to quotation in statement i nsufficient

to invoke rule)

. “ Some portion of the matter sought to be ‘ completed ’ must have actuall y been
int roduced into e vidence. ” Rios v. State , 230 S.W.3d 252 , 257 (T ex. A pp.

— Waco 2007, pet.9

ref ’ d) ; see also Washing ton v. State , 856 S.W.2d 184, 186 ( Tex. Crim. App. 1993) ( explaining
that “ the rule is not implicated until such time as a party attemp ts to have a portion of it ‘ given i n evi dence ’ ” ). Ju st as how a party “ cannot rely on its own questioning as a n inv i tation to rebuttal, ” Hatley v. State , 533 S.W.2d 27, 29 (Tex. Crim. App. 1976) , a “ party who opens the ” evidenti ary door “ may not then invo ke the rule of optional completenes s to further expl oit an improper line of questioning , ” West v. State , 121 S.W.3d 95, 103 (Tex. App.

— Fort Worth 2003, pet. ref ’ d)

.

When the State questione d Octavian at trial, Octavian mentioned that he gave
more than on e statement to th e police, that he to ld the police that he was asleep and did not

see or hear anything, that he c hange d his s tory and later told the police that he saw McKenzie walking around , that he told the poli ce during the record ed interview that he w as asleep, and th at what h e said duri ng the recorded inter view w as the truth; however , the State did not of fer into
evidence any portion of the recorded interview and di d not specifically reference any portion of
h is interview in its questions

. See Tex. R . Evid. 107 ; Whipple , 281 S.W.3d at 5 0 0

. The defense is the only party that sought specific information about th a t interview

. In light of this , th e t rial court could have reasonably concluded that his references to his out

- of

- cou rt statement s on direct

w ere insufficient to warran t the appli cation of the rule of optio nal completeness. See Araiza v.
State , 929 S.W .2d 552, 555

- 56 (Tex . App.

— San Antoni o 1996, pet. ref ’ d) ( noting that witnes s was asked about “ particular statements ” given in his prior confe ssi on but concluding that “ th e trial cou rt did not err in excluding the statement ” because at no point was “ any portion o f [th e witnes s] ’ s statement . . . read to the jury ” ). Further, while Octavian provided more specific details about his prior stateme n t s d uri ng his cross

- examina tio n, that tes timony was elicited by the
defense

. McKenzie may not “ open the door ” by introducing some part of Octavian ’ s out

- of

court statement during cross

- examination and then demand introduction of the entire statements10

under Ru le 10 7

. See West , 121 S.W .3d at 103 ; see also Pinkney v. State , 848 S.W.2d 363, 367 (Tex. App.

— Houston [1st Dist.] 1993, no pet.) (explaining that document is “ not admissible in
its en tire ty ” when use d to cr oss - examine witness )

. 3

For t hese reasons, w e ove rrule McK enzie ’ s issue on appeal.

CO NCLUSIO N Having o verruled McKenzie ’ s issue on appeal, we affirm the trial court ’ s judgment of conviction.

3 In his bri ef, McK enzie primarily relies on three appellate opinion s as support for his arguments that the recording should have be en admitted , b ut we do not believe those c ases compel a c onclusion t hat the tria l court abused its discretion

. In Elmore v. State , the trial court admitted a letter written by a police chief to the defendant ’ s w ife that was offered by the S tat e but excluded a letter w ritten by the defendant ’ s wife to the chief that was of fered by th e defendant , and our sister court of appeals determined that the t rial court abused its discretion by excluding the second letter “ because it completed the communication between the parties

. ” 116 S. W.3d 80 9, 814 (Tex. App.

— Fort Worth 2003, pet. ref ’ d) . In the current ca se, no out

- of

court statement by Octavian like the one present in Elmore was admitted into eviden ce . I n the next c ase relied on by McKen zie, Prince v. State , the tr ial court admitted a reco rding of an e ntire forensic i nterview , b ut ou r sister court did no t d ecide whether the trial court abused its discretion when making its ruling

. 574 S.W.3d 561, 573 (Tex. App.

— H ouston [1st Dist. ] 2019, pet. ref ’ d )

. In the final case relied on by M cKenzie, Walte rs v. S t ate , the Co urt of Criminal Appeals det ermin ed that the trial c ourt abused its discretion by excluding a “ 911 conversation ” offer ed by the defendant. 247 S.W. 3d 20 4, 220 (T ex . Crim. App. 2007)

. H owever, unlike in this case, the trial court in Walters had already adm itte d other out

- of

- court statement s by admitting three 911 call s o ffered by the S tate , i ncluding one made by the defendant

. Id. a t 2 14

- 15

. Additionally , t he Court of Criminal Appeals explained that the final 911 recordin g should have been admitted becaus e th e State “ op en ed the door to the ad mission of the .

. . 911 cal l ” by cutting off the ans wer from one of its wi tnesses and creat ing the false impression t hat the defendant offer ed no explanation for why he shot his br othe r when in fact the de fendant expl aine d in the fi nal 911 recording th at he was acting in se lf

- defens e . Id. at 215, 220

- 21

. H ere, in contrast, the S tate did not redirect Octavian ’ s answers or otherwise pr event him from completing his answers , and Octavian admitted in his testimony t hat he gav e contradic tory statements to the police.11 __________________________________________ Thomas J. Baker , Justice
Before Chief Ju stice Byrne, Justices Baker and Kelly
Affirmed
Filed: March 17, 2021
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