Antonio Oneicmo Tovar v. The State of Texas--Appeal from 184th District Court of Harris County

Opinion issued July 20, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00867-CR

ANTONIO ONEICMO TOVAR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 925589

CONCURRING OPINION

The majority errs in concluding that because appellant inquired into part of the contents of complainant s statement that was recorded on videotape, the entire statement was admissible under the rule of optional completeness so that the conversation between complainant and the interviewer could be fully understood. However, because appellant s point of error on appeal does not comport with his objection at trial, I concur only in the judgment of the court.

Optional Completeness

The rule of optional completeness provides, in pertinent part:

When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given.

Tex. R. Evid. 107 (emphasis added). Rule 107 does not . . . permit the introduction of other similar, but inadmissible, evidence unless it is truly necessary to explain properly admitted evidence. Cathleen Cochran, Texas Rules of Evidence Handbook, art. I, at 93 (6th ed. 2005) (emphasis added). Also, the rule is not invoked by the mere reference to a document, statement, or act; rather, a portion of the matter must be given in evidence before the rule permits the admission of other portions of that evidence. Id. (citing Goldberg v. State, 95 S.W.3d 345, 386 87 (Tex. App. Houston [1st Dist.] 2002, pet. ref d)). Moreover, the rule does not permit a party to offer an entire recorded interview, a diary, or other voluminous material into evidence if the witness responds negatively when questioned about whether that recording, diary, or statement contains certain information. Id. at 93 (emphasis added).

The majority holds that the trial court did not err in admitting the entire videotaped interview of the complainant based on the following exchange between defense counsel and the complainant:

[Defense Counsel]: Do you remember telling the social worker that Mr. Tovar or had actually put his finger in your vagina?

[Complainant]: No, I don t remember.

. . . .

[Defense Counsel]: Okay. Do you recall going some place and talking with some lady about what happened? It would have been a few days later, about 10 days after you went to the doctor.

[Complainant]: Yes.

[Defense Counsel]: Okay. Do you remember telling that lady that when this attack or when this incident happened, that Brittany was in the room with you?

[Complainant]: No.

[Defense Counsel]: You don t remember saying that at all?

[Complainant]: No.

[Defense Counsel]: Okay. Do you remember telling that lady that you didn t know if Mr. Tovar had actually put his penis inside your vagina?

[State]: Objection to improper impeachment.

[Trial Court]: Overruled. You may ask that.

[Defense Counsel]: Do you recall?

[Complainant]: No.

[Defense Counsel]: Do you remember talking with that lady? And if you don t remember, that s fine. Do you remember much of the conversation or not?

[Complainant]: No.

(Emphasis added.)

Here, it is readily apparent that defense counsel did not elicit any evidence from the complainant about specific statements that she made in the interview. When asked if she remembered or recalled the above statements, the complainant clearly stated that she did not. Because defense counsel did not introduce any evidence of the substance of the complainant s previous statements, there was, in fact, nothing for the State to make fully understood or to explain in the complainant s videotaped interview. The above testimony in no way invokes Rule 107, and the majority errs in concluding otherwise.

Error Preservation

On appeal, appellant summarizes his argument as follows:

Admission of the complainant s videotaped testimony violated [article] 38.071 of the Texas Code of Criminal Procedure, which permits the admission of a child under thirteen s videotaped testimony if the child is unavailable to testify. In this case, [the complainant] was available and did actually testify at trial. The court improperly admitted the video tape testimony over Tovar s objection.

See Tex. Code Crim. Proc. Ann. art. 38.071 (Vernon 2005). Also, appellant argues

that the statement was hearsay and was not admissible as a prior consistent statement. See Tex. R. Evid. 613(c), 801(e)(1)(B).

However, as noted by the majority, when the State offered into evidence the videotaped interview of the complainant, the following exchange occurred:

[State]: Since he was able to go into and get inconsistent statements of the videotape, I believe he has opened the door to my putting the videotape on for prior consistent statements.

[Trial Court]: I think that s probably true. Do you want to be heard on that, Mr. McCoy?

[Defense Counsel]: Your honor, I don t think I have opened the door; but, I m not going to make I will just object to it for the record and let you rule.

Nothing in appellant s general objection for the record apprised the trial court of the complaints that appellant now asserts on appeal, i.e., that the videotaped statement was hearsay and its admission violated article 38.071. He did not state the grounds for the ruling that he sought from the trial court with sufficient specificity to make the trial court aware of the complaints, and they are not apparent from the context in the above-quoted exchange. See Tex. R. App. P. 33.1(a)(1)(A). An appellant s point of error on appeal must comport with his objection at trial. Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003). Thus, I would hold that appellant has failed to preserve error regarding the admission of the videotaped interview because his objection at trial does not comport with his complaints now raised on appeal. See id.

Conclusion

Having concluded that appellant has failed to preserve error regarding the admission of the videotaped interview, I would affirm the judgment of the trial court. Accordingly, I concur only in the judgment of the Court.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Alcala.

Justice Jennings, concurring in the judgment.

Publish. Tex. R. App. P. 47.2(b).