dissenting.
COURT’S CHARGE
The majority fails to consider the entirety of the charge as required by Jackson v. State, 591 S.W.2d 820, 825 (Tex.Crim.1979). In Jackson, the Court on its own motion for rehearing restated well-settled law that:
In Daniel v. State, 486 S.W.2d 944 (Tex.Cr.App.1972), this Court held:
“The charge should be viewed as a whole, and review should not be limited to parts of the charge standing alone. Cain v. State, 154 Tex.Cr.R. 284, 226 S.W.2d 640 (Tex.Cr.App.1950).”
Jackson, 591 S.W.2d at 825. The Court reviewed the law section of the charge as well as additional portions of the application paragraph and determined, considering the charge as a whole, there was no error.
In the charge in this case, the jury was instructed that “a person commits criminally negligent homicide if he causes the death of an individual by criminal negligence.” (Clerk’s Record, page 91). The charge then proceeds to define criminal negligence. This instruction was on the page immediately preceding the portion of the charge alleged to have erroneously omitted the required finding under an alternative manner and means that “blunt force injury” caused Jay’s death. The application paragraph that immediately followed the paragraph complained of stated:
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not guilty of the lesser included offense of Criminally Negligent Homicide.
(Clerk’s Record page 92).
After careful consideration of the entire charge, I do not believe that the jury could have answered “We, the jury, find the defendant, Fernando Flores, guilty of the lesser included offense of Criminally Negligent Homicide” without finding that the conduct of Flores, under either theory alleged in the indictment and charged to the jury, caused the death of Jay. Thus, even though the charge was less than perfect, the charge was not fundamentally defective because, considered as a whole, it required the jury to find all the elements of criminally negligent homicide beyond a reasonable doubt or find the defendant not guilty. The disposition of this issue is controlled by applying Jackson.
HeaRsay Objection
The State asked police officer Woodruff: “Specifically, did she [Gayla] tell you anything along the lines of ‘na-na-na-na-na-na, your momma isn’t here,’ at the time that *408she says Fernando Flores was hitting him [Jay] ... [?]” Flores objected that the question called for hearsay. The State responded that it was being offered as a prior inconsistent statement. Flores argued that the State could not impeach its own witness. The State accurately responded that the voucher rule had been amended and that the party calling a witness can now impeach the witness under the current rules of evidence. Tex.R.Evid. 607; Hughes v. State, 4 S.W.3d 1, 5 (Tex.Crim.App.1999).
Flores did not object to an incomplete predicate for the admission of impeachment testimony, nor did he request a limiting instruction, nor did he object that the prejudicial effect of the statement outweighed the probative value, if any, of impeaching Gayla with having made the statement to Woodruff but also having denied making the statement to Woodruff. Accordingly, Flores’ only objection, hearsay, was fully addressed by the State’s offer of the evidence for the limited purpose of impeaching Gayla and for no other purpose.
Conclusion
Because the majority holds otherwise on the two issues presented, I respectfully dissent.