Francois Veazie Centers v. State

NUMBER 13-11-00641-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FRANCOIS VEAZIE CENTERS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 9th District Court
of Montgomery County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion by Justice Rodriguez
Appellant Francois Veazie Centers challenges his conviction by a jury for murder.

See TEX. PENAL CODE ANN. § 19.02(b) (West 2011). By three issues, appellant argues

that the trial court abused its discretion in: admitting a recorded interview of him by

police; admitting the testimony of his probation officer regarding certain statements made
by appellant; and refusing to allow appellant to question certain State witnesses at trial

regarding the alleged sexual assault that precipitated the killing of the decedent. We

affirm.1

I. Background

On April 24, 2009, appellant and the decedent, Kevin Marshall, both attended a

party at a condo owned by appellant's family at a resort near Lake Conroe. In the early

morning hours of the next day, appellant and his girlfriend discovered Marshall and

appellant's seventeen-year-old niece in the resort's hot tub. Appellant testified at trial

that Marshall appeared to be sexually assaulting his niece. Appellant's niece testified,

more specifically, that she was too intoxicated to fight off Marshall's advances and that he

was sexually assaulting her. Appellant and Marshall then had a verbal argument, after

which appellant retrieved his handgun from the condo, returned to the pool area, and shot

Marshall four times. After the shooting, appellant, his girlfriend, and his niece left the

resort and went to his parents' home in Humble, Texas. Marshall's dead body was found

at approximately 7:00 a.m. that morning.

When it was determined that appellant had left the resort, law enforcement officers

went to appellant's parents' home. Appellant's parents gave the officers permission to

enter the house and speak with appellant. Appellant agreed to go to the police station to

give a statement. Appellant also consented to a search of his room. While his room

was being searched, an officer questioned appellant, while they stood beside the patrol

1
This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to
a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West 2005).
2
car, about the events of the prior evening. This interview was recorded and lasted

approximately one hour.2 During the interview, the officers conducting the search found

the jeans appellant had been wearing at the party. The jeans had a dark stain that tested

positive as human blood, and the officer questioning appellant told appellant that jeans

with a blood stain were found in his room.3 Appellant was then transported to the police

station, where he was Mirandized and eventually admitted to shooting Marshall after he

found him in the hot tub with his niece. Appellant was arrested and charged by

indictment for murder. See id. Appellant was out on bond until his trial, during which

time he was required to regularly meet with a probation officer.

Appellant's case was tried to a jury. At trial, the State offered the testimony of

several forensic examiners, a crime scene investigator, a DNA analyst, law enforcement

officers involved with the investigation and arrest, appellant's probation officer, and

several of the other party guests. The defense offered the testimony of appellant's

mother and the testimony of his sister, cousin, and niece, all three of whom were at the

party at the condo. After the close of evidence and argument by counsel, the jury

returned a guilty verdict, and the trial court sentenced appellant to thirty years'

confinement in the Institutional Division of the Texas Department of Criminal Justice.

II. The Recorded Interview

By his first issue, appellant challenges the trial court's denial of his motion to

suppress the recorded interview. Appellant argues that he was in custody at the time of

2
The recording continued during the drive to the police station.
3
It was later determined through DNA testing that the stain on appellant's jeans was not Marshall's
blood.
3
the recorded interview outside his parents' home, and as a result, the failure to Mirandize

him before the interview rendered the recording inadmissible.

Whether the trial court properly denied a defendant's motion to suppress is

reviewed under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720,

725 (Tex. Crim. App. 2007); Scardino v. State, 294 S.W.3d 401, 405 (Tex. App.—Corpus

Christi 2009, no pet.). The trial judge is the sole trier of fact and judge of the credibility of

the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d

17, 24–25 (Tex. Crim. App. 2007). We give almost total deference to a trial court's

determination of historical facts and mixed questions of law and fact that rely upon the

credibility of a witness, but we apply a de novo standard of review to pure questions of law

and mixed questions that do not depend on credibility. Martinez v. State, 348 S.W.3d

919, 922–23 (Tex. Crim. App. 2011). We must uphold the trial court's ruling if it is

reasonably supported by the record and is correct under any theory of law applicable to

the case. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).

No statement, either oral or written, of an accused made as the result of a custodial

interrogation shall be admissible against the accused in a criminal proceeding, unless the

accused, prior to making the statement, voluntarily waives his rights pursuant to the

following warning that:

(1) he has the right to remain silent and not make any statement at all
and that any statement he makes may be used against him at his
trial;

(2) any statement he makes may be used as evidence against him in
court;

(3) he has the right to have a lawyer present to advise him prior to and

4
 during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer
appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time[.]

See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2 (West 2005); see also Miranda v.

Arizona, 384 U.S. 436, 444–45 (1966). The defendant must prove that the statement he

wishes to exclude was the product of a custodial interrogation before the State is required

to show compliance with Miranda and the article 38.22 warnings. See Herrera v. State,

241 S.W.3d 520, 526 (Tex. Crim. App. 2007) (quoting Wilkerson v. State, 173 S.W.3d

521, 532 (Tex. Crim. App. 2005)). In other words, the State has no burden at all unless

the record as a whole clearly establishes that the defendant's statement was the product

of custodial interrogation by a law enforcement agent. Wilkerson, 173 S.W.3d at 532.

A trial court's "custody" determination presents a mixed question of law and fact.

Herrera, 241 S.W.3d at 526.

Under Miranda, a "custodial interrogation" is defined as "questioning initiated by

law enforcement officers after a person has been taken into custody or otherwise

deprived of [her] freedom of action in any significant way." Thompson v. Keohane, 516

U.S. 99, 107 (1995). "'In determining whether an individual was in custody, a court must

examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is

simply whether there [was] a formal arrest or restraint on freedom of movement of the

degree associated with a formal arrest.'" Estrada v. State, 313 S.W.3d 274, 294 (Tex.

Crim. App. 2010) (quoting Stansbury v. California, 511 U.S. 318, 322 (1994)). This is an

objective inquiry, made from the perspective of an innocent reasonable person. Dowthitt

5
v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). "[T]he subjective intent of law

enforcement officials to arrest is irrelevant unless that intent is somehow communicated

or otherwise manifested to the suspect." Id. (citations omitted).

A person's decision to accompany police to the station to make a statement does

not create a custodial situation absent an express or implied threat to take the person by

force. Dancy v. State, 728 S.W.2d 772, 778–79 (Tex. Crim. App. 1987). Neither does

an interview become a custodial interrogation "simply because . . . the questioning took

place in a 'coercive environment.'" Estrada, 313 S.W.3d at 294 (citing Oregon v.

Mathiason, 429 U.S. 492, 495 (1977)). But an otherwise non-custodial interview can

become custodial if law enforcement creates a situation that would lead a reasonable

person to believe his freedom of movement has been significantly restricted or when

there is probable cause and law enforcement does not tell the person he is free to leave.

Dowthitt, 931 S.W.2d at 255. In the latter situation, the existence of probable cause must

be communicated to the suspect, and that manifestation, "combined with other

circumstances, [must] lead a reasonable person to believe that he is under restraint to the

degree associated with an arrest." Id.

After law enforcement officers found appellant at his parents' home the morning

after the shooting, they asked appellant to accompany them to the police station to give a

statement. Before leaving for the police station, officers asked appellant for consent to

search his room, which appellant gave. While some of the officers searched his room,

another officer, Detective Michael Landrum of the Montgomery County Sheriff's

Department, asked appellant some questions while they waited outside by the patrol car.

6
The conversation between appellant and Detective Landrum was recorded.

In the recording, Detective Landrum asks appellant questions about the occasion

for the party, when appellant left the party, when appellant last saw Marshall, the nature of

the interaction between appellant's niece and Marshall, and what appellant had been

wearing at the party. Detective Landrum informs appellant that Marshall had been found

shot to death and asks appellant if he knew anything about that. Appellant responds that

he does not.

Approximately forty minutes into the conversation, Detective Landrum receives a

call from the officers searching appellant's room; after he ends that call, Detective

Landrum tells appellant that the officers found the jeans appellant had been wearing at

the party and that the jeans had a large, dark stain on the leg. It was confirmed shortly

thereafter by crime scene investigators that the stain was blood, and Detective Landrum

communicates this to appellant. When asked why there is blood on his jeans, appellant

tells Detective Landrum that the stain could be from a cut on his leg he had several weeks

back and that he does not have his jeans cleaned very often so the stain could have been

there since then. Before they leave for the station, appellant asks if he can get some

shoes from his room. Detective Landrum tells appellant that he will go in and get the

shoes. Appellant asks that Detective Landrum choose shoes that match what appellant

is wearing.

Several times during their conversation, both before and after they discuss the

blood-stained jeans, Detective Landrum tells appellant that he will bring him home after

he gives his statement at the station. In the car on the way to the station, appellant and

7
Detective Landrum chat about the weather, the detective's children, and where appellant

went to school. The recording ends when they arrive at the station.

At trial, Detective Landrum testified that when he and the other officers asked

appellant to accompany them to the police station to give a statement, he told appellant

that he was not in custody and was free to leave at any point. Detective Landrum

testified that he also told appellant the interview would be terminated if appellant so

requested.

Appellant argues that Detective Landrum's questioning became a custodial

interrogation when he informed appellant that a blood stain had been found on his jeans.

Appellant argues that this amounted to probable cause and that after communicating it to

appellant, Detective Landrum's "demeanor toward [a]ppellant change[d]," he began

"communicating with [a]ppellant in an accusatory manner," and appellant was "not told he

is free to leave" after that point. Appellant argues that the foregoing transformed the

previously informal conversation into a custodial interrogation.

First, based on our review of the recording, we disagree that Detective Landrum's

demeanor significantly changed after he informed appellant about the blood stain.

Detective Landrum's tone remained largely conversational, and his attitude after

communicating the information about the blood stain was not any more accusatory than it

had been before the jeans were discovered. And regardless, we must defer to the trial

court's resolution of mixed questions of law and fact to the extent it depends on the

credibility and demeanor of witnesses, and having denied the motion to suppress the

recording, the trial court presumably resolved this matter in favor of the State. See

8
Wiede, 214 S.W.3d at 24–25; see also Martinez, 348 S.W.3d at 922–23. Second, we

disagree with appellant's assertion that he was not told he was free to leave after the

blood stain was found. Detective Landrum repeatedly told appellant, before and after

the blood stain was revealed to appellant, that appellant would be brought home after he

gave his statement at the station. See Estrada, 313 S.W.3d at 293 n.19 (noting that the

record did not support a finding that the defendant was kept from leaving the police

station in light of the evidence that "police told appellant several times that he was free to

leave and even offered him a ride home"). In short, we cannot conclude that the

circumstances surrounding the communication of probable cause to appellant would

have led a reasonable person to believe that he was under restraint to the degree

associated with an arrest. See Dowthitt, 931 S.W.2d at 255.

Appellant also emphasizes the fact that Detective Landrum would not allow

appellant to go into the house to get his shoes as evidence that appellant's freedom of

movement was significantly restricted and that appellant was therefore in custody at the

time. Again, we disagree. Instead, we believe it would have been reasonable for the

trial court to conclude that Detective Landrum and the other officers were entitled to keep

control of the scene for their own safety and for the preservation of possible evidence, and

Detective Landrum's refusal to allow appellant back into the house to retrieve his shoes

was consistent with these principles. See Wiede, 214 S.W.3d at 24–25; see also

Martinez, 348 S.W.3d at 922–23. In addition, it is clear from the recording that Detective

Landrum's refusal to allow appellant to retrieve his shoes did not alter the nature of the

interview. Appellant's concern that the shoes picked by Detective Landrum match what

9
appellant was wearing belies any assertion that the environment had become more

coercive as a result of Detective Landrum's refusal to let appellant retrieve the shoes on

his own. We are not persuaded by appellant's argument that the foregoing transformed

the informal conversation between Detective Landrum and him into a custodial

interrogation.

Having reviewed the recording in its entirety and the relevant evidence from trial,

we have found nothing supporting a conclusion that appellant was in custody during the

time of the recording. Appellant was told he was not in custody, would be free to leave at

any time, would be allowed to terminate the interview when he wished, and would be

brought home after giving his statement. Appellant then voluntarily agreed to

accompany Detective Landrum to the station to give a statement. Other than not being

allowed to retrieve shoes from his room, appellant's movements were hindered in no way.

Finally, we note that the tone of the interview remained conversational, even chatty, from

its inception through the ride to the station. In sum, viewing the circumstances

objectively, we cannot conclude that, during the recording, appellant's freedom was

restrained to the degree associated with an arrest. See Estrada, 313 S.W.3d at 294.

The trial court therefore did not err in concluding appellant was not in custody at this time

and properly denied his motion to suppress the recording of appellant's conversation with

Detective Landrum. See Herrera, 241 S.W.3d at 526; Stevens, 235 S.W.3d at 740.

Appellant's first issue is overruled.

III. Testimony of Probation Officer

By his second issue, appellant argues that the trial court erred in allowing his

10
probation officer to testify about statements appellant made during the meetings he was

compelled to attend as part of his bond conditions. Appellant argues that by requiring

him to "generally state the facts of his case" during those meetings, his probation officer

essentially forced him to reveal inculpatory facts or else risk the revocation of his bond.

Appellant then argues that the trial court's admission of the statements he made at these

meetings violated his Fifth Amendment rights because the meetings with the probation

officer were custodial in nature, and because appellant was never Mirandized during

those meetings, any statements he made were inadmissible as a result.4 See U.S.

CONST. amend. V; see also Miranda, 384 U.S. at 444–45.

Christian Smith, who was employed by Montgomery County as a probation officer

during the pendency of appellant's case, testified at trial that his duties as a probation

officer included supervising individuals who were out on bond awaiting trial. Smith

testified that appellant was one of those individuals who were required to regularly report

to him. In the following exchange with the prosecutor, Smith read from the notes he kept

from one of his meetings with appellant:

[Prosecutor]: Did [appellant] give you a version, Mr. Smith, about
what happened in this case according to him?

[Smith]: Yes, he did.

[Prosecutor]: Can you, please, read that to the ladies and gentlemen
of the jury for me?

[Smith]: "On December 17th of 2009, defendant reported in for

4
In addition, we note that appellant asserts that the meetings with Smith violated his Sixth
Amendment rights because he had invoked his right to counsel at this point. See U.S. CONST. amend. VI.
But aside from generally referencing the Sixth Amendment, appellant makes no substantive argument and
cites no legal authority in support of his assertion that his meetings with Smith violated his right to counsel.
See TEX. R. APP. P. 38.1(i). We therefore do not address this argument.
11
 a scheduled office visit. He came in two hours early.
He waited and was seen at his appointment time.
Myself, the court liason officer, reviewed all ancillary
conditions of bond, and the defendant stated that he
understood all those ancillary conditions of bond."
Some of this is marked out. "Defendant stated he was
at a party in the Piney Shores, and he walked in on his
sister's older boyfriend who was raping his
drug-induced 17-year-old virgin niece. The defendant
stated that the man had a gun laying on the table in the
room and picked up the gun and shot him, killing him.
The defendant denied any drug and alcohol use. No
problems and no charges — no changes were
reported to the officer at the time."

[Prosecutor]: Based upon your recollection there, Mr. Smith, did the
defendant ever mention anything to you about a hot
tub or swimming or anything like that?

[Smith]: I don't recall anything about that[,] no.

Defense counsel then cross-examined Smith about the results of appellant's drug

screenings while he was out on bond, and Smith confirmed that appellant's drug

screenings were all clean. Smith also confirmed to defense counsel that he did not ask

for a "detailed statement" from appellant; he merely asked appellant to "generalize" why

he was out on bond.

As discussed above, whether a defendant is in custody for purposes of Miranda is

a mixed question of law and fact. See Herrera, 241 S.W.3d at 526. We defer to the trial

court on mixed questions of law and fact that rely upon the credibility of a witness, but we

apply a de novo standard of review to mixed questions that do not depend on credibility.

See Martinez, 348 S.W.3d at 922–23. Although probationers are compelled to meet with

officers of the court and provide truthful answers, these meetings do not involve the

"coercion inherent in custodial interrogation[s]" and thus do not amount to a "formal arrest

12
or restraint on freedom of movement of the degree associated with a formal arrest."

Minnesota v. Murphy, 465 U.S. 420, 430, 433 (1984); see Cunningham v. State, 488

S.W.2d 117, 120 (Tex. Crim. App. 1972) (holding that appellant was not in custody for

purposes of Miranda where the probation officer was conducting his monthly interview

with appellant, was not conducting an investigation into a suspected crime, and appellant

left following the interview). More specifically, the United States Supreme Court has

ruled that a comparison between a custodial interrogation and a probation interview is

"inapt[]" for the following reasons:

Custodial arrest is said to convey to the suspect a message that he has no
choice but to submit to the officers' will and to confess. [Miranda, 384 U.S.,
at 456–457]. It is unlikely that a probation interview, arranged by
appointment at a mutually convenient time, would give rise to a similar
impression. Moreover, custodial arrest thrusts an individual into "an
unfamiliar atmosphere" or "an interrogation environment . . . created for no
purpose other than to subjugate the individual to the will of his examiner."
[Id. at 457]. Many of the psychological ploys discussed in Miranda
capitalize on the suspect's unfamiliarity with the officers and the
environment. [A probationer]'s regular meetings with his probation officer
should have served to familiarize him with her and her office and to insulate
him from psychological intimidation that might overbear his desire to claim
the privilege. Finally, the coercion inherent in custodial interrogation
derives in large measure from an interrogator's insinuations that the
interrogation will continue until a confession is obtained. [Id. at 468].
Since [a probationer is] not physically restrained and [can leave] the office,
any compulsion he might have felt from the possibility that terminating the
meeting would have led to revocation of probation was not comparable to
the pressure on a suspect who is painfully aware that he literally cannot
escape a persistent custodial interrogator.

Murphy, 465 U.S. at 433.

Here, the record shows that appellant was required to regularly meet with Smith at

appointments that were set up in advance. Appellant was not restrained at the

appointments and was free to leave at the end of each appointment—which he did, even

13
after the appointment at which he admitted to shooting Marshall. Moreover, from the

record before us, we find no conditions of appellant's bond that required him to reveal the

facts of his case to Smith. Indeed, when asked by appellant's counsel whether he

required appellant to give a detailed statement at the meeting, Smith confirmed that he

asked only for a general description of why appellant was out on bond; unprompted by

Smith, appellant chose to detail the events surrounding the shooting. We therefore

cannot conclude that appellant's meeting with Smith bore any of the coercive

characteristics necessary to transform it into a custodial interrogation that would have

triggered appellant's Miranda rights. As such, the trial court did not err in concluding that

appellant was not in custody at his bond meetings and denying appellant's request to

exclude Smith's testimony on this basis. Appellant's second issue is overruled.

IV. Cross-Examination Regarding Alleged Sexual Assault

By his third issue, appellant argues that the trial court abused its discretion when it

refused to allow him to cross-examine certain State witnesses about the alleged sexual

assault of appellant's niece by Marshall.

A. Standard of Review and Applicable Law

"The Sixth Amendment right to confront witnesses includes the right to

cross-examine witnesses to attack their general credibility or to show their possible bias,

self-interest, or motives in testifying." Hammer v. State, 296 S.W.3d 555, 561 (Tex.

Crim. App. 2009) (citing Davis v. Alaska, 415 U.S. 308, 316 (1974)). But this right is not

unqualified; trial judges retain wide discretion to limit the scope and extent of

cross-examination based on criteria such as "harassment, prejudice, confusion of the

14
issues, the witness' safety, or interrogation that is repetitive or only marginally relevant."

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); Hammer, 296 S.W.3d at 561.

"Generally, the right to present evidence and to cross-examine witnesses under the Sixth

Amendment does not conflict with the corresponding rights under state evidentiary rules."

Hammer, 296 S.W.3d at 561 (citations omitted). In those situations where there is a

conflict between the United States Constitution and Texas rules, the Constitution will

control. Id. (citing TEX. R. EVID. 101(c)). But in most instances, "compliance with the

reasonable construction and application of a rule of evidence will . . . avoid a

constitutional question." Id.

B. The Testimony

Here, appellant points to testimony by Detective Landrum, Texas Ranger Wende

Wakeman, Montgomery County Sheriff's Department Sergeant Marvin Michael Rogers,

and Collin Barcus (another party guest, then-boyfriend of appellant's sister, and friend of

Marshall's) regarding their knowledge of sexual assaults allegedly committed by

Marshall. Appellant points to the following testimony by Detective Landrum:

[Prosecutor]: Did you ever get any calls from this defendant's family
about Mr. Marshall sexually assaulting anybody
leading up to this?

[Landrum]: No, I did not.

[Prosecutor]: And did you conduct[] what you believe to be based
upon your training and experience[] a thorough
investigation in this case?

[Landrum]: Yes, I did.

[Prosecutor]: And up to today, have you ever heard of any kind of a
complaint prior to the ladies and gentlemen of the jury

15
 being empanelled on this case that Kevin Marshall
ever sexually assaulted anybody else?

[Landrum]: No, I have not.

[Prosecutor]: Would that come as a surprise to you?

[Landrum]: It would.

[Prosecutor]: Why?

[Landrum]: The information wasn't — nobody mentioned that
information during the investigation.

[Prosecutor]: Okay.

[Landrum]: Never told — that information was never told to me.

After this exchange, the prosecutor questioned Detective Landrum about the statement

he took from appellant's sister, who was also at the party. Over appellant's hearsay

objection, which the trial court overruled, Detective Landrum testified that in her

statement, appellant's sister did not mention that Marshall was "in a gang" or "had

sexually assaulted anybody." Detective Landrum then stated that in the "last two and a

half years between the time this happened" and the trial, he had not "heard anything

about Kevin Marshall sexually assaulting anybody else." Immediately preceding the

foregoing exchanges, the prosecution asked Detective Landrum if there had been any

calls to law enforcement from the resort reporting violence or any other problems in the

days leading up to Marshall's killing. Detective Landrum replied that there had been no

calls.

Appellant next points to the following testimony by Ranger Wakeman, in which she

described the events leading up to law enforcement going to appellant's parents' home.

16
Ranger Wakeman testified that when they arrived at appellant's parents' home the

morning after the shooting, appellant's parents "seemed very surprised that we were

there" and seemed to have no "idea at all" as to why law enforcement was there. The

following exchange then occurred:

[Prosecutor]: Did they at any time prior to your contact with this
defendant and the other folks that we're going to talk
about here in a minute, mention anything to you at all
about any sexual assault or anything like that?

[Wakeman]: No, sir.

[Prosecutor]: Anything about this defendant, their own son, asleep in
their own house? Mention anything to you about
acting in self-defense or defending anybody else?

[Wakeman]: No, sir.

Shortly thereafter, the prosecutor asked Ranger Wakeman a series of questions

regarding her transport of appellant's girlfriend and niece to the police station to make

statements. In response to those questions, Ranger Wakeman testified that the two

women did not seem nervous and were being cooperative. Ranger Wakeman further

testified:

[Prosecutor]: Did [appellant's girlfriend or niece] mention anything to
you in this ride or seem concerned that they had been
victimized or anything like that?

[Wakeman]: I remember that there was some sort of an indication or
some sort of a hint that there was more to the story
than what [appellant's niece] had told us. So I knew
whenever I went to talk to [appellant's niece] in
Montgomery County that there was something she
hadn't told me earlier, I felt like.

Ranger Wakeman then testified that, after appellant's niece gave her statement, she took

17
her to the hospital in the Woodlands. Finally, in response to several questions by the

prosecutor about whether appellant had been in contact with his girlfriend and niece after

his arrest and during the time they were giving their statements, Ranger Wakeman

responded that she had no knowledge.

On cross-examination, defense counsel asked Ranger Wakeman about the

investigations at the resort and at appellant's parent's home. Defense counsel then

asked Ranger Wakeman about the alleged sexual assault of appellant's niece:

[Defense counsel]: Now, obviously at some point there was some
concern that [appellant's niece] may have been
sexually assaulted because you took [her] to the
hospital?

[Wakeman]: Yes, sir.

[Defense counsel]: And the reason for that was for an examination,
correct?

[Wakeman]: Yes, sir.

Defense counsel then asked Ranger Wakeman about her general experience with sexual

assault cases, and when counsel asked specifically whether appellant's niece told

Ranger Wakeman during her statement that Marshall had raped her, the State objected

on hearsay grounds. The trial court excused the jury from the courtroom, and the parties

then discussed the admissibility of Ranger Wakeman's recounting of the niece's

statement. The trial court ultimately sustained the State's objection, and after the jury

was brought back into the courtroom, defense counsel was permitted to ask Ranger

Wakeman whether she transported appellant's niece to the hospital after her statement.

Ranger Wakeman responded that she did transport the niece to the hospital and that,

18
later, appellant's girlfriend arrived at the hospital to "console" the niece.

Appellant next points to the testimony by Sergeant Rogers. Sergeant Rogers

testified that he participated in the investigation at the condo and at appellant's parent's

house the morning after the shooting. Sergeant Rogers testified that he spoke with

appellant's sister at the condo about the events of the previous day. When asked if

appellant's sister told him that "her brother or the defendant in this case ever claimed to

have acted in self-defense," Sergeant Rogers responded that "she did not." Sergeant

Rogers then testified that he spoke with appellant's girlfriend at appellant's parents' home

before she was taken to give her statement at the police station. When asked if

appellant's girlfriend provided him "any information about a sexual assault that had taken

place," Sergeant Rogers responded that "[s]he did not."

Finally, appellant points to the following testimony by Barcus, who was another

party guest, the then-boyfriend of appellant's sister, and a friend of Marshall's:

[Prosecutor]: Did you end up going back to the condo after [you
found Marshall's dead body]?

[Barcus]: Yes.

[Prosecutor]: Was [appellant's sister] there?

[Barcus]: Yes.

[Prosecutor]: Did she ever indicate to you when you saw her that
anything bad had ever happened to [appellant's niece]
at all?

[Defense counsel]: I object to that. It calls for hearsay, Your
Honor.

[The Court]: I'll allow it.

19
 [Prosecutor]: Did she?

[Barcus]: She was — as far as the incident, she knew nothing of
it because when I went to bed, she went to bed.

....

[Prosecutor]: Did anybody in . . . this defendant's family ever say
anything to you after this happened that this defendant
did it because he was scared of Kevin?

[Barcus]: No.

[Prosecutor]: Did anybody in his family, including this defendant's
own sister, ever say anything to you about this
defendant being scared of Kevin hurting somebody
else?

[Barcus]: No.

On cross-examination, defense counsel asked Barcus whether he "recall[ed] an

incident in the bathroom during the week [when they had all been staying at the condo]

where [Marshall] was having sex with another girl?" Barcus replied, "Like I said, we was

all — it was a party. Kevin was in a relationship with a young lady." When defense

counsel next asked whether Barcus recalled Marshall "video recording" the sex with the

other woman, the State objected, and the trial court then refused to allow counsel to

cross-examine Barcus further about the allegation that Marshall had been having sex in

the bathroom with another woman at the party and whether appellant's sister had

complained to Barcus about that situation.

C. Analysis

Appellant argues that by allowing the foregoing testimony and then refusing

cross-examination, the trial court left the jury with the impression that the State's

20
witnesses had never heard of any allegations of sexual assault of appellant's niece by

Marshall prior to the trial. Appellant argues that the trial court's refusal to allow him to

cross-examine the witnesses regarding statements appellant's niece had made to those

witnesses violated the "open door" rule, under which he was entitled to rebut the false

impression left by the earlier testimony with the hearsay testimony. See Hayden v.

State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009) ("Evidence that is otherwise

inadmissible may become admissible when a party opens the door to such evidence. A

party opens the door by leaving a false impression with the jury that invites the other side

to respond."); see also TEX. R. EVID. 107. Having examined the complained-of testimony

in the context of the entire record, we disagree with appellant's characterization of the

testimony.

First, Detective Landrum's testimony was clearly referring to alleged assaults by

Marshall of other women. In his opening statement, defense counsel suggested to the

jury that the evidence would show that Marshall was a gang member and had been

causing trouble at the party, including sexually assaulting another woman earlier in the

day before his alleged assault of appellant's niece. In context with the preceding

questions asking whether there had been any calls from the condo to law enforcement in

the days leading up to the shooting, it is obvious that the State's questioning of Detective

Landrum was an attempted rebuttal of this theory—that Marshall had assaulted another

woman at the party.

It is likewise obvious that the complained-of testimony by Ranger Wakeman—that

appellant's family did not mention a sexual assault or that appellant was acting in

21
self-defense of his niece—was referring to Wakeman's initial contact with the family,

before transporting appellant's niece and girlfriend to the police station and before the two

women gave their statements. Ranger Wakeman's subsequent testimony makes clear

that she knew of the alleged assault of appellant's niece on that first day. She testified

that, in the car ride, the niece and girlfriend "hint[ed] that there was more to the story."

And even though the trial court did not allow Ranger Wakeman to detail appellant's

niece's outcry, the trial court did allow Ranger Wakeman to testify that the niece was

transported to the hospital for a sexual assault examination.

Next, although Sergeant Rogers testified that neither appellant's sister nor

girlfriend told him that appellant was acting in self-defense of someone or that a sexual

assault had occurred, he was referring to his investigation of the incident on the morning

after the shooting. This testimony does not show that Sergeant Rogers retained that

impression throughout the investigation and did not know of the sexual assault

allegations until trial.

Finally, Barcus's testimony that appellant's sister did not indicate that "anything

bad had ever happened to appellant's niece" was limited to the night of the party. In

other words, his testimony was that appellant's sister did not have any knowledge about

the alleged assault of appellant's niece because she had already gone to bed with him

that night; his testimony was not that appellant's sister concealed the alleged assault of

appellant's niece until trial. And the remainder of Barcus's complained-of testimony, like

the testimony of Detective Landrum, is clearly related to whether Marshall had assaulted

another woman at the party before he allegedly assaulted appellant's niece. Defense

22
counsel's cross-examination, which focused on an alleged sexual incident in the

bathroom with another woman, confirms this.

In short, we cannot conclude that the complained-of testimony left the jury with an

impression that these witnesses had no knowledge, prior to trial, of the allegation that

Marshall had allegedly assaulted appellant's niece—i.e., that door was never opened.

See Hayden, 296 S.W.3d at 554. As such, the rules did not permit appellant to use

hearsay testimony in rebuttal. See id. The trial court did not violate appellant's rights in

limiting cross-examination of the witnesses on this basis; rather, the court acted within its

discretion when it complied with the applicable rules of evidence barring hearsay

testimony. See Hammer, 296 S.W.3d at 561. We overrule appellant's third issue.

V. Conclusion

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ
Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 10th
day of October, 2013.

23