Collins, Amber Renee v. The State of Texas--Appeal from 228th District Court of Harris County

Affirmed and Opinion filed _____________, 2002

Affirmed and Opinion filed March 13, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00523-CR

____________

AMBER RENEE COLLINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

   Harris County, Texas

Trial Court Cause No. 881,465

 

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

A jury found appellant guilty of indecency with a child and, after assessing punishment at nine years confinement, recommended a suspended sentence and community supervision. The facts of this appeal are known to the parties, so we do not recite them here. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex R. App. P. 47.1. We affirm.

Impeachment

Appellant s first two points of error concern her counsel s attempt to impeach the complainant with a prior statement made during the trial of Robert Phillips, her husband.[1]

Rule 613 of the Texas Rules of Evidence prohibits extrinsic evidence of an inconsistent statement unless the witness denies it:

In examining a witness concerning a prior inconsistent statement made by him, 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 written, the writing need not be shown to him at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted .

Tex. R. Evid. 613(a). The rule requires three elements as a predicate for admission: identification of the statement (by time, place, and person), a summary of the contents, and a denial by the witness as to what the statement contains. Here, counsel identified the statement, and then proceeded to try to read it to the witness and the jury, with no summary or opportunity (until after it was read) for her to admit or deny it. Thus, the trial court correctly sustained the prosecutor s objection.

Moreover, appellant has made no showing of harm. After the objection was sustained, a transcript containing the testimony was admitted when the prosecutor waived any objection.[2] Appellant has not shown what questions or testimony have been excluded. See Tex. R. Evid. 103; Tex. R. App. P. 33.2. We thus overrule appellant s first two points of error. See Tex. R. App. P. 44.2(a).

Prosecutorial Misconduct

In her final point of error, appellant contends the prosecutor engaged in prosecutorial misconduct be suggesting to the complainant that her testimony about appellant s innocence in the prior trial related to an entirely separate matter. As it is difficult to parse all of the complainant s testimony, it is not entirely clear that the two are inconsistent. But assuming they are, appellant has not proven the prior statement was true and the second was not, or that the prosecutor knew that to be the case. Further, no objection was made at the time. Thus, we overrule this point.

The judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Memorandum Opinion filed March 13, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1][Defense Counsel]: Okay. And do you recall this following statement, quote -- this is to Mr. McGinnis

question, When you say, Amber, you re totally innocent of the whole thing, are you trying to say there that Amber knows nothing about what was allegedly happening with you and Robert? And then you answer, With me and Robert, yes. She did not even known when the threesome came through.

[The Prosecutor]: Objection, improper impeachment.

[The Court]: That will be sustained.

[Defense Counsel]: All right. And then you said --

[The Prosecutor]: Objection, improper impeachment.

[Defense Counsel]: -- Only one time --

[The Court]: That will be sustained.

[Defense Counsel]: Okay. Do you recall making another statement of the 15th of January, and you made this at the Harris County courthouse, criminal courthouse --

[The Prosecutor]: Respectfully object to improper impeachment.

[Defense Counsel]: Do you recall saying there was one, only one time --

[The Prosecutor]: Hasn t laid the predicate.

[The Court]: Be sustained.

[Defense Counsel]: You had this, the district attorney, predicate in their book.

[The Court]: Counsel, follow the proper procedure.

[Defense Counsel]: Ok. Do you recall saying that?

[The Prosecutor]: I object. Improper impeachment.

[The Court]: That will be sustained.

[2] [Defense Counsel]: After tending to opposing counsel, I d like to have [the prior statement] admitted into

evidence.

[The Prosecutor]: I m not going to have any, grudgingly, have any objections, Judge, other than the warning that I made at my bench conference. She wants to offer these as part of her case, then I don t have any objection.

[The Court]: And they re marked as --

[The Prosecutor]: Defense Exhibit #1 and 2.

[Defense Counsel]: Without objection, Defense Exhibit #1 and 2 will be admitted.