COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
RICHARD LEE SHERMAN, §
No. 08-13-00105-CR
Appellant, §
Appeal from the
v. §
271st District Court
THE STATE OF TEXAS, §
of Wise County, Texas
Appellee. §
(TC#CR16082)
§
OPINION
Appellant Richard Lee Sherman was charged with continuous sexual abuse of a child, his
daughter. See TEX.PENAL CODE ANN. § 21.02(b) (West Supp. 2014). The jury found Sherman
guilty of the lesser-included offense of indecency with a child by contact and assessed punishment
at twenty years’ confinement. See TEX.PENAL CODE ANN. § 21.11(a)(1) (West 2011). Sherman
raises one issue on appeal. He contends the trial court abused its discretion in overruling his
hearsay objection to a question posed by the State in its attempt to impeach his sole defense
witness. We conclude the trial court did not abuse its discretion in allowing the State to impeach
the witness on a collateral matter because Sherman opened the door to impeachment in his direct
examination of the witness. Accordingly, we affirm.1
FACTUAL AND PROCEDURAL BACKGROUND2
The complainant, C.S., began living with her father and his wife when she was 10 years’
old. She would normally sleep in her own room, but on three occasions she slept in the master
bedroom with Sherman and his wife. C.S. testified that Sherman fondled her on all three
occasions. The first time was when she was still 10, and she awakened to find Sherman touching
her underneath her clothes “on the spot” where she urinates. The second time, Sherman was
rubbing her genitals, which she testified hurt her “[r]ight in the middle.” The third time was when
C.S. was 11, and C.S. awakened to find Sherman touching her as before. C.S.’s first outcry was
to her mother as she was being returned home to Sherman from a visitation with her mother and
maternal grandmother.3 C.S. decided to tell her mother because she did not want her father to
touch her again and was scared to go back to his house.
C.S. testified that during the time she lived with Sherman, a CPS caseworker (Garcia)
would periodically check on her at her father’s house and at school. C.S. denied that anyone
coached her to say her father touched her. She denied telling CPS caseworker Garcia that her
maternal grandparents were trying to make her say “bad stuff” about Sherman.
An investigator with the Wise County Sheriff’s Office spoke with Sherman on three
different occasions after the abuse allegations arose. On the first occasion, the investigator
1
This case was transferred from the Second Court of Appeals in Fort Worth, and we decide it in accordance with the
precedent of that court to the extent required by TEX.R.APP.P. 41.3.
2
Because the jury found Sherman guilty of the lesser-included offense of indecency with a child by contact, and
Sherman does not attack the sufficiency of the evidence on appeal, we limit our discussion to the facts relevant to
Sherman’s claimed error.
3
Sherman abused C.S. during a time Sherman and C.S.’s mother were estranged and custody of C.S. was an issue.
C.S. made the outcry to her mother after it was determined that Sherman should have primary custody of C.S.
2
informed Sherman he was not ready to talk because evidence was still being collected. Sherman
continued to inquire, however, and at one point made the statement, “[I]f I did anything, I was
asleep.” On the second occasion, Sherman denied the abuse allegations and reiterated that if
something had occurred he must have been asleep. At a subsequent interview, Sherman admitted
he touched C.S. on her vagina when C.S. was in bed with him.4 Sherman claimed it was an
accident because he thought he was touching his wife. Sherman then wrote and signed the
following statement and apology:
I, Richard Sherman, was sleeping in bed one night with my wife and daughter. In
my sleep I was going to make moves on my wife – well, I was touching on my
daughter totally thinking it was my wife. When I realized it was not my wife, I got
so sick to my stomach and went to the other room. I assured [C.S.] that it would
never ever happen again. And it hasn’t ever happened again. I never told any one
[sic] about this incident because it was so humiliating and I don’t think I could
bring it to myself to say what I – what has happened.
...
[C.S.], hey baby girl, daddy is so very sorry for what happened to you. I told [you]
it was an accident and it was. I would never ever hurt you on purpose – on purpose
and you should know that. I love you dearly. And once again, I’m so so sorry for
what I did.
Sherman called only one witness at trial, CPS caseworker Garcia. Garcia first began
monitoring C.S. on a monthly basis with visits beginning in February 2010, when C.S. was
initially placed with Sherman.5 At the time, the question of the ultimate custody of C.S. had not
been decided, and CPS was attempting to determine what placement was in C.S.’s best interest.
4
An audio recording of this interview was admitted into evidence and played for the jury.
5
A CPS supervisor, who was involved in the investigation of the abuse allegations, testified that after C.S. was placed
with Sherman, she was assigned three different caseworkers, but that caseworker Garcia supervised the case for the
majority of the time. She also testified C.S. informed her she did not tell Garcia about the abuse because Sherman had
threatened her and because she was embarrassed to tell. The supervisor was disappointed with the level of
supervision provided by Garcia who seemed to have a clear bias against the grandparents.
3
Garcia testified Sherman had expressed a desire to have full-time custody of C.S., and that C.S.’s
maternal grandparents had expressed “[a] very strong desire” to have custody of C.S. Garcia
testified that sometime around May 2010, C.S. expressed concern that her grandparents wanted
her to say bad things about Sherman or his wife: “C.S. did discuss a few times during the
visitation that her grandparent would whisper at her … [in] direct violation of the visitation rules of
whispering … to tell me or tell her attorney [things] that were bad against her mom …, her step
mom or her dad.” In response to questions from Sherman’s counsel, Garcia confirmed the CPS
case concerning C.S. had gone to a court-ordered mediation in September in which Garcia had
taken part. When asked who had ended up with primary custody, Garcia replied: “All parties
agreed for Mr. Sherman to have primary custody of [C.S.] and that she would have biweekly
weekend visits and standard holiday visits with her grandparents.” The outcry of sexual abuse
occurred less than two months after C.S. was informed she would be placed permanently with her
father.
On cross-examination by the State, Garcia admitted that C.S. had expressed a concern in
March 2010 that Sherman made her write a letter to the judge saying she wanted to live with him.
And, in April 2010, C.S. told Garcia she would rather be living in foster care. When Garcia was
shown Sherman’s written statement in which he admitted to touching C.S., Garcia said it was the
first time she had seen the statement.6 The following exchange then occurred:
Q. [Prosecutor] Based on your training and experience, would you allow [C.S.] to
live with the Defendant based on the statement [he] gave?
[Defense attorney]: Objection, relevance, your Honor.
The Court: Overruled.
6
When asked “[d]o you believe that,” Garcia was not allowed to answer because the trial court granted defense
counsel’s objections based on speculation and testifying as to the credibility of another witness.
4
A. So, are you asking if I would have concerns if she was living there and I was still
involved; if that’s a true statement?
Q. Yes. If you had received that statement, would you allow [C.S.] to live with the
defendant based on the statement you just read?
A. I would have some concerns, but I would take it to the Court, because the Court
ultimately makes the decision about where the child is placed.
DISCUSSION
Sherman contends the trial court abused its discretion in overruling his hearsay objection.
In particular, he contends that by overruling his objection, the trial court allowed into evidence
impeachment testimony whether Sherman should retain custody of his daughter, when that was
not an issue in the case and was not a matter within the power of a CPS caseworker to decide, and
that the caseworker’s testimony, “I would have some concerns,” was highly prejudicial because it
mixed a civil “best interest” standard in child placement cases, with the “beyond a reasonable
doubt” standard required for a finding of guilt in a criminal case.
Standard of Review
Relevant evidence is “evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would
be without the evidence.” TEX.R.EVID. 401. Evidence need not by itself prove or disprove a
particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving
or disproving some fact of consequence. Kirsch v. State, 306 S.W.3d 738, 743 (Tex.Crim.App.
2010); Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App. 2004). Questions of relevance should
be left largely to the trial court, relying on its own observations and experience, and we will not
reverse absent an abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App.
5
1993); Sanders v. State, 255 S.W.3d 754, 758 (Tex.App. – Fort Worth 2008, pet. ref’d); Levario v.
State, 964 S.W.2d 290, 297 (Tex.App. – El Paso 1997, no pet.). If the trial court’s ruling is within
the “zone of reasonable disagreement,” then there is no abuse of discretion, and the appellate court
must uphold the trial court’s ruling. Sanders, 255 S.W.3d at 758.
Impeachment on a Collateral Matter
Sherman’s relevance objection was directed to whether evidence concerning the effect of
his statement on C.S.’s placement was “of consequence to the determination of the action[.]” His
objection thus implicated the general rule that a witness may not be contradicted or impeached as
to immaterial or collateral matters. Ramirez v. State, 802 S.W.2d 674, 675 (Tex.Crim.App.
1990); Rankin v. State, 41 S.W.3d 335, 343 (Tex.App. – Fort Worth 2001, pet. ref’d); TEX.R.EVID.
608(b). It has been said that the test whether a matter is collateral, for purposes of the rule that a
party is not entitled to impeach a witness on a collateral matter, is whether the cross-examining
party would be entitled to prove it as part of the case. Aguirre v. State, 948 S.W.2d 377, 381
(Tex.App. – Houston [14th Dist.] 1997, pet. ref’d). Under this test, Garcia’s opinion whether she
would allow C.S. to live with Sherman in light of his statement was a collateral matter, because it
was not related to or probative of an element of the State’s case.
But, a well-recognized exception to the rule barring impeachment on collateral matters
exists when a witness testifies gratuitously as to some matter that is irrelevant or collateral to the
proceeding. In that instance, the witness may be impeached by evidence contradicting her
testimony showing she is in error as to that matter. Rankin, 41 S.W.3d at 343 n.17 (citing Cantu v.
State, 939 S.W.2d 627, 635 (Tex.Crim.App. 1997); Hammett v. State, 713 S.W.2d 102, 105
(Tex.Crim.App. 1986)); see Polk v. State, 170 S.W.3d 661, 665 (Tex.App. – Fort Worth 2005, pet.
6
ref’d) (same); Altamirano v. State, No. 08-01-00235-CR, 2003 WL 1889947, at *7 (Tex.App. – El
Paso April 17, 2003, no pet.) (“Under this exception to Rule 608(b), a witness may be impeached
by evidence contradicting her gratuitous and voluntary testimony on an irrelevant or collateral
matter.”); see also Cantu, 939 S.W.2d at 635 (holding that the rule permitting cross-examination
on any matter relevant to credibility, allows for impeachment on a collateral matter when relevant
to a witness’s credibility by contradicting witness’s testimony); TEX.R.EVID. 613(b). The Court
of Criminal Appeals has instructed in this regard that: “Should the witness or the party tendering
him ‘open the door,’ however, by gratuitously raising the collateral matter, the opposing party may
impeach the witness on the matter so raised.” Hammett, 713 S.W.2d at 106 n.4.
Application
In his direct examination of CPS caseworker Garcia, Sherman’s counsel raised the issue of
the court’s decision to place C.S. with Sherman and elicited evidence that caseworker Garcia took
part in the court-ordered mediation that resulted in that placement and that “[a]ll parties” agreed
that Sherman should have primary custody. Sherman effectively opened the door to the
impeachment of Garcia on the collateral matters of primary custody and Garcia’s agreement with
that custody by presenting testimony from which the jury could infer that CPS caseworker Garcia
took part in and agreed with the decision to place C.S. with Sherman. The State was thus allowed
to attempt to dispel any notion of Garcia’s imprimatur to the placement by showing she would
have reservations to that placement in light of Sherman’s statement. We conclude therefore that
because Sherman opened the door to impeachment on a collateral matter, the trial court did not
abuse its discretion in overruling Sherman’s relevance objection and in allowing evidence that
Garcia “would have some concerns” over the placement in light of Sherman’s written statement.
7
Accordingly, Sherman’s sole issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
STEVEN L. HUGHES, Justice
April 30, 2015
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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