KELIAM LADARIUS RUDD, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed; Opinion Filed August 4, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00447-CR
No. 05-07-00448-CR
        
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KELIAM LADARIUS RUDD, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause Nos. F05-74121-I, F06-00774-I
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OPINION
Before Justices Wright, O'Neill, and Francis
Opinion By Justice Francis
        A jury convicted Keliam Ladarius Rudd of aggravated robbery and aggravated assault of a public servant and assessed punishment at thirty years and life in prison, respectively. In one issue, appellant argues the trial court erred in admitting evidence of an extraneous offense during the guilt- innocence phase of the trial. We affirm.
        Dallas police officer Mark Rickerman was working plainclothes surveillance. He was walking down Sunset Avenue talking on his cell phone to Officer Kelly White when a vehicle pulled up next to him. A man, wearing a light-colored shirt and jeans and identified at trial as appellant, got out of the passenger side, put a gun to Rickerman's side, and said, “You know what time it is.” Rickerman tried to alert White about what was going on and gave appellant his wallet. He also held his hand in his pocket, hoping to keep appellant from finding his badge. When appellant pulled the officer's hand out of his pocket, Rickerman's badge came out. On seeing the badge, appellant reached for Rickerman's weapon. Rickerman grabbed his gun, but appellant shot him three times, hitting him in the right arm, left hip, and right foot. The officer fired back as White's car rounded the corner, and White pursued appellant.
        Officer Kelly White heard the audio of the robbery over the cell phone and headed to the scene. As he turned the corner onto Sunset Avenue, he heard three gunshots and saw a black male in a light blue shirt and jeans holding a gun. White saw appellant drop the gun, chase after a dark- colored Crown Victoria, and try to climb through its broken rear window. He explained the car eventually stopped to let appellant enter through the front passenger door and then sped away.
        White never lost sight of the car and followed it until the driver stopped in an apartment complex. Both driver and appellant fled. White chased appellant to a fence where appellant gave up and lay down on the ground. Rickerman's wallet was found in his pocket. The driver of the car, Rory Doss, was later apprehended by police and testified for the State.
        At the time of trial, Doss was being held in the Dallas County Jail awaiting trial on the same offenses as appellant. He said he was testifying against appellant “just to be honest” and hoping for a reduced sentence. He said that on the night of the Rickerman robbery, he and appellant had discussed needing money and wanting to “hit a lick” to get some. They were riding in Doss's navy Crown Victoria and picked up a gun at appellant's house.
        While looking for someone to rob, Doss said they saw “a guy walking down the road” talking on a cell phone. Appellant told Doss to let him out of the car, and Doss said he then heard gunshots. Doss saw the man fall to the ground and took off in his car as his back window was shot out. Appellant ran after him, and Doss slowed down long enough to let him jump onto the trunk of the car. Doss made the next turn and let appellant get into the passenger side of the car. Doss said appellant told him he “shot a law.”
        Doss and appellant were pursued by what Doss assumed was a police car and ultimately came to a dead end at an apartment complex where they both got out and ran. The police followed appellant, and Doss jumped the fence and got away, but he was arrested the next day. Doss said on the night of the Rickerman offenses, he was wearing a red shirt.
        On redirect and over defense counsel's earlier objection, Doss told the jury about an extraneous robbery he and appellant committed several hours before the Rickerman offenses occurred. He said he and appellant were driving in the Lovers Lane/Greenville Avenue area when they saw two women sitting in a parked car. Doss ran to the driver's side of the car, pointed the gun at the driver's head, and demanded her purse. The driver complied, and the passenger ran away crying for help. Doss used one of the credit cards from the purse to buy gas. He recalled the name on the credit card as “Hailey.” Doss originally blamed appellant for this robbery, but he later admitted his involvement to the prosecutor and police.
        Hailey Hesker and Leslie Lynch corroborated Doss's account of the robbery. Both testified that a black man wearing a red shirt approached Heskar's car window with a gun and demanded her purse. Lynch got out of the car and ran down the street, screaming for help. The second robber, a black male wearing a light blue shirt, chased after Lynch briefly. Lynch saw the men get into a dark-colored Crown Victoria and drive away. Hesker gave the police her credit card bill showing the gas purchase made by Doss and identified a photocopy of her license and debit card found in appellant's pocket when he was arrested. Hesker and Lynch were unable to identify appellant or Doss in a photo line-up.         In a single issue, appellant argues the trial court erred in allowing the State to elicit evidence of the extraneous robbery of Heskar and Lynch during the first phase of the trial. He argues the extraneous robbery “had nothing in common with the primary offense except that [a]ppellant and Doss were involved in it” and “was not probative of any material, contested issue in the case.”
        During the cross-examination of Doss and before evidence of the extraneous offense was admitted, appellant attempted to impeach Doss with inconsistent statements he made to police. Doss initially spoke to police when they came to his aunt's house the afternoon of the Rickerman shooting and asked him to voluntarily come to the station and talk to them. Most, if not all of this initial interview, involved questions the police had about the extraneous offense for which Doss denied any involvement. A second interview took place the next day, and Doss gave a written statement admitting his participation in the extraneous offense. He denied having the gun and instead said appellant had it. The three-page written statement deals only with the extraneous offense, except for two sentences at the end that refer to when Doss and appellant found out Rickerman was a police officer. Only six months later did Doss make a statement in which he admitted he was the one with the gun during the extraneous offense.
        Before testifying, Doss was instructed by both the State and his own attorney not to say anything about the extraneous offense. On cross-examination, defense counsel repeatedly questioned Doss about his inconsistent statements to police, apparently hoping the jury would attribute the inconsistencies to the case appellant was on trial for and knowing Doss would not say the inconsistent statements were about the earlier robbery. Doss admitted giving inconsistent statements to police and agreed his “initial story” was that he knew nothing “about any of this.” Defense counsel pressed Doss about his initial story, asking: “What did you say? What did you say at first? What was your first story? Tell the jury so they will understand what your first story was. Do you remember your first story?” Doss was somewhat noncommittal with his answers, saying he “told them what happened.” Before the State objected and asked for a hearing outside the presence of the jury, seven more times counsel asked Doss to tell the jury what he said to police the first time he went in to see them.
        Outside the presence of the jury, the State asked that defense counsel be required to refer only to the statements Doss made about the shooting of Rickerman. The State asserted that Doss had only been inconsistent with his statements dealing with the robbery of the two women, denying involvement completely during the first interview and, in the second interview and written statement, saying appellant had the gun and not him. Before his testimony before the jury, the State and Doss's attorney went “over and over” with Doss that he could not discuss the robbery of the two women during this trial. The State argued that because defense counsel's questions dealt with a topic Doss could not go into, defense counsel was “making [Doss] look like a liar because he can't answer it,” and was “tricking [Doss] because he knows he can't talk about it. It's the only story he's changed.” The State asked that, if the defense counsel continued to question Doss on inconsistencies in a statement dealing with an extraneous offense Doss had been told not to go into, it be allowed to respond by going into the facts of the extraneous offense. The defense was instructed to rephrase the question. Again counsel questioned Doss on the statements made to police without identifying the specific statement; the State asked the court three times to have counsel identify the statement.         During a second hearing outside the presence of the jury, the State argued direct evidence on the extraneous offense was admissible because the defense had “opened the door” with its continued questioning of Doss on the content of his first interview with police and impeachment on a subsequent written statement dealing primarily with the extraneous robbery. Additionally, the Sate urged the evidence was admissible on the issue of identity because of references to a third robber's participation in the Rickerman offenses. The defense responded that the cross-examination did not open the door to the extraneous offense and identity was not an actual issued raised by appellant. Moreover, defense asserted that the extraneous offense was “extremely prejudicial.” The trial court ruled in the State's favor.
        We review rulings on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The trial court will not be overturned as long as its ruling is within the zone of reasonable disagreement. Id.
        Evidence of extraneous offenses is generally not admissible. Tex. R. Evid. 404(a). However, “otherwise inadmissible evidence may be admitted if the party against whom the evidence is offered 'opens the door.'” Schutz v. State, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997); Carter v. State, 145 S.W.3d 702, 707 (Tex. App.-Dallas 2004, pet. ref'd). A defendant opens the door by asking a question which creates a false impression that the admission of extraneous offense evidence would correct. Houston v. State, 208 S.W.3d 585, 591 (Tex. App.-Austin 2006, no pet. ). When a party opens the door, opposing counsel is permitted to present evidence to correct the mistaken impression. Id.
        Here, the record shows that defense counsel persistently questioned Doss on inconsistent statements made to the police regarding the extraneous offense, but left the jury with the impression that the inconsistencies were relevant to the Rickerman offense. This occurred despite two hearings outside the presence of the jury, the State's objections that the questions were misleading because Doss had been instructed not to discuss the extraneous offenses, and the trial court's instruction to defense to rephrase their questioning. Having reviewed the record,we conclude the trial court did not err in concluding that defense counsel opened the door for the State to rebut the incomplete, and inaccurate, picture left by the questioning.         Moreover, any error in the admission of evidence is cured where the same or similar evidence comes in elsewhere without objection. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984).
        After Doss, four witnesses testified to the extraneous offense, including Hailey Hesker and Leslie Lynch. Although none of these witnesses could specifically identify appellant as one of the two persons involved in the extraneous offense, the evidence revealed characteristics from which a reasonable jury could infer, beyond a reasonable doubt, that appellant was a party to the offense. In particular, both Heskar and Lynch gave essentially the same evidence as Doss. Under these circumtances, any error was cured by the admission of the same or similar evidence. We conclude the trial court did not err in admitting evidence of the extraneous offense. We therefore overrule the sole issue.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070447F.U05