Mooring v. State

Full title: ASHLEY MOORING, Appellant, v. THE STATE OF TEXAS, Appellees

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: May 9, 2007

No. 10-05-00407-CR (Tex. App. May. 9, 2007)

Opinion

No. 10-05-00407-CR.

Opinion delivered and filed May 9, 2007. DO NOT PUBLISH.

Appeal From the 361st District Court Brazos County, Texas Trial Court No. 05-01984-CRF-361. Affirmed.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

MEMORANDUM OPINION

FELIPE REYNA, Justice.

A jury convicted Ashley Mooring of robbery, and the court sentenced him to sixteen years' imprisonment. Mooring contends in four issues that the court: (1) denied his state and federal constitutional rights to present a defense by limiting the extent of his own testimony regarding his encounter with the complainant; (two issues) (2) abused its discretion by excluding statements the complainant gave investigating officers because they were admissible as prior inconsistent statements; and (3) abused its discretion by excluding these statements as hearsay because they were admissible as present sense impressions or as recorded recollections. We will affirm.

Right to Present a Defense

Mooring contends in his first and second issues respectively that the court denied his right to present a defense under the Sixth Amendment to the United States Constitution and article I, sections 10 and 19 of the Texas Constitution by limiting the extent of his testimony regarding his encounter with the complainant Juan Jose Chavaan. Chavaan testified that he did not know Mooring and that Mooring forced his way into Chavaan's apartment on the occasion in question. According to Chavaan, Mooring took $25 and a roommate's bicycle after threatening to harm him. Mooring testified in his own defense. He testified that he had known Chavaan for several years. He went to Chavaan's apartment on the occasion in question and knocked on the door. Chavaan was talking on the phone, saw that it was Mooring at the door, and beckoned him to enter. Mooring sat down for a few minutes, waiting for Chavaan to finish the telephone conversation. Mooring's counsel then sought to elicit testimony that Mooring and Chavaan "snorted" cocaine in the apartment after Chavaan got off the phone and that Chavaan agreed to pay $25 for his portion of the cocaine. Mooring made an offer of proof outside the presence of the jury. The State objected that this testimony was inadmissible evidence of specific instances of conduct in violation of Rule of Evidence 608(b). The court sustained the objection, but invited Mooring's counsel to find additional authorities which would support admission of the testimony. Court was adjourned until the following morning. The next morning the prosecutor was the first to revisit the court's ruling. The prosecutor suggested that the testimony was perhaps not inadmissible under Rule 608 but argued nevertheless that any probative value of the testimony was substantially outweighed by the danger of unfair prejudice under Rule 403.

PROSECUTOR: I have no objection to the Defendant testifying that he had consent to be there or if, in his opinion, they had had prior dealings; but as to what those prior dealings were, I think the prejudicial effect is extremely high. And the Court has discretion in that incidence [sic] to — to keep that part of the Defendant's testimony out.

COURT: Based on everything I understand about the law, I believe that would be inviting error to sustain the objection. The objection will be overruled.

Thereafter, Mooring testified that Chavaan let him in the apartment on the occasion in question. According to Mooring, Chavaan acknowledged after getting off the phone that he owed Mooring $25 but could only give him $7 at that moment. Mooring told Chavaan he needed to borrow the bicycle, which Chavaan "approved." Chavaan told Mooring to come back later for the rest of the money, and Mooring left. Even though the court had overruled the State's objection, Mooring never revisited his claims that Chavaan and he snorted cocaine on that occasion or that Chavaan owed him $25 for cocaine. Because the court ultimately overruled the State's objection to the complained-of testimony, Mooring can point to no adverse ruling in the record as a basis for his complaint. Accordingly, we overrule Mooring's first and second issues.

Prior Inconsistent Statement

Mooring contends in his third issue that the court abused its discretion by excluding statements Chavaan made to a detective because they were prior inconsistent statements admissible under Rule of Evidence 613(a). A detective interviewed Chavaan when he responded to the call.¹ Apparently, an audio recording of the interview was made and later transcribed. Mooring offered an excerpt of this transcription in evidence to impeach Chavaan's testimony, but the court sustained the State's objection to this evidence.² Mooring contends that his cross-examination of Chavaan revealed at least three inconsistencies between Chavaan's trial testimony and his prior statements to the police. On cross-examination, Chavaan insisted that he told the police he did not know Mooring. Mooring's counsel asked Chavaan whether he recalled responding to the police about knowing Mooring by saying, "No, I don't know him but —" (emphasis added). Mooring suggests that Chavaan's use of the word "but" calls into question Chavaan's assertion on direct examination that he had denied knowing Mooring. Mooring's counsel later reminded Chavaan that he had testified that no one was outside his apartment on the occasion in question. Counsel asked Chavaan whether he recalled telling the police there was a girl outside. Chavaan said he did not. Counsel was then permitted to read (through an interpreter) the following excerpt from Chavaan's interview:

Officer: You didn't see anybody outside?

Chavaan: No. The girl?

Chavaan then reiterated that he did not recall that exchange. Finally, Chavaan testified that he never told the police that he had told Mooring everyone was asleep when Mooring knocked on the door. Counsel was permitted to read an excerpt from Chavaan's interview, as above, to impeach Chavaan on this issue. After excusing the jury at the conclusion of Chavaan's testimony, the court marked what Mooring tendered as Chavaan's "statement" as Defendant's Exhibit No. 1. The State objected that the exhibit was inadmissible hearsay. Mooring responded that it was admissible as a prior inconsistent statement and under the state-of-mind and "res gestae" exceptions to the hearsay rule. The court sustained the State's objections. Only the last of the three inconsistencies about which Mooring complains on appeal appears in this one-page exhibit. Thus, Mooring arguably failed to preserve any complaint regarding the exclusion of portions of Chavaan's interview pertinent to whether Chavaan knew Mooring before the occasion in question or whether there was a girl outside the apartment on that occasion. See TEX. R. EVID. 103(a)(2). However, Mooring's counsel plainly informed the court of the substance of the evidence which was excluded. Id. (to preserve error from exclusion of evidence, the substance of the excluded evidence must be "made known to the court by offer" or must be "apparent from the context within which questions were asked"). Therefore, we will address Mooring's complaints. During closing arguments, Mooring's counsel challenged Chavaan's credibility by referring to the inconsistent statements about his prior relationship with Mooring and about whether he had told Mooring that everyone was asleep when Mooring knocked on his door. There is no indication that the court would not have allowed Mooring to also raise the alleged inconsistency regarding the presence of a girl outside the apartment door on the occasion in question, although Mooring's counsel did not refer to this inconsistency in his argument. Even assuming the court abused its discretion by excluding the written statements which Mooring apparently sought to introduce, we conclude that he was not harmed by such error. The Court of Criminal Appeals has enunciated a series of factors which should be considered when evaluating harm for the erroneous exclusion of a witness's written statement under the former Rule of Criminal Evidence 611 (now Rule of Evidence 612).³ Young v. State, 819 S.W.2d 945, 948 (Tex.Crim.App. 1994) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674 (1986)). According to Young: The analysis is essentially a three-prong process: First, assume that the damaging potential of the cross-examination were fully realized. Second, with that assumption in mind, review the error in connection with the following factors:

1) The importance of the witness' testimony in the prosecution's case;

2) Whether the testimony was cumulative;

3) The presence or absence of evidence corroborating or contradicting the testimony of the witness on material points;

4) The extent of cross-examination otherwise permitted; and,

5) The overall strength of the prosecution's case.

Finally, in light of the first two prongs, determine if the error was harmless beyond a reasonable doubt. To perform this analysis, we must review the facts of this case and the excluded evidence.

Id. (citations and footnote omitted) (quoting Shelby v. State, 819 S.W.2d 544, 547 (Tex.Crim.App. 1991) (citing Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438)).⁴ However, a violation of Rule 613 is not an error of constitutional magnitude. See TEX. R. APP. P. 44.2(b); Ruben de la Rosa v. State, 961 S.W.2d 495, 497-98 (Tex.App.-San Antonio 1997, no pet.) (violation of Rule 611 not constitutional error); see also Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex.Crim.App. 1999) (violation of art. 26.13(a)(1) of the Code of Criminal Procedure not constitutional error). Therefore, a modified version of the Van Arsdall harm analysis should apply here. See Ruben de la Rosa, 961 S.W.2d at 497-500. Thus, we first assume that Mooring fully demonstrated Chavaan's lack of recall and the inconsistencies between his testimony and his prior statements. See Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438; Young, 819 S.W.2d at 948; Rankin v. State, 41 S.W.3d 335, 345-46 (Tex.App.-Fort Worth 2001, pet. ref'd); Ruben de la Rosa, 961 S.W.2d at 499; see also Davis v. State, 203 S.W.3d 845, 850 (Tex.Crim.App. 2006). We then ask whether "the admission of that impeachment evidence, in the context of the trial as a whole, [would] likely have made any significant impact upon the minds of an average jury?" Davis, 203 S.W.3d at 850. To decide that question, we consider the five factors listed for the "second prong" of the Van Arsdall analysis. Id.; see also Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438; Young, 819 S.W.2d at 948; Rankin, 41 S.W.3d at 346; Ruben de la Rosa, 961 S.W.2d at 499. Here, the first three of these factors and the last factor weigh in Mooring's favor. Chavaan's testimony was crucial to the prosecution because he was the complainant and the sole witness to the robbery. Because he was the sole witness, his testimony was not cumulative. Mooring's own testimony directly contradicted Chavaan's regarding their prior relationship, the purpose of Mooring's visit, whether Chavaan consented to his entry, and whether Mooring threatened Chavaan or took anything without Chavaan's consent. And we cannot say that the evidence against Mooring is overwhelming. Cf. McClenton v. State, 167 S.W.3d 86, 96 (Tex.App.-Waco 2005, no pet.). However, Mooring was permitted to fully cross-examine Chavaan about the discrepancies between his statements to the police and his trial testimony, and Mooring highlighted those discrepancies during closing argument. It is difficult to discern how the admission in evidence of a transcription of Chavaan's inconsistent statements would add much force to Mooring's implicit contention that Chavaan was not credible but Mooring was. See Ruben de la Rosa, 961 S.W.2d at 499-500. Therefore, assuming without deciding that the court abused its discretion by excluding the written statements, such error did not affect Mooring's substantial rights. Id.; TEX. R. APP. P. 44.2(b). Accordingly, we overrule Mooring's third issue.

Hearsay

Mooring contends in his fourth issue that the court abused its discretion by excluding these statements as hearsay because they were admissible as present sense impressions or as recorded recollections. See TEX. R. EVID. 803(1), (5). In response to the State's hearsay objection, Mooring argued that the statements were admissible because:

he's describing what I would submit to his [sic] state of mind at the time he gave that statement. He's describing to law enforcement what his state of mind was about what he was telling this individual about res gestae. And I don't believe it is hearsay, Judge. He's describing the event, his state of mind at that time.

We construe this recitation as sufficient to preserve Mooring's argument that the statements are admissible as present sense impressions under Rule 803(1). However, Mooring did not argue in the trial court that the statements are admissible as recorded recollections under Rule 803(5). Thus, he did not preserve this aspect of his complaint for appellate review. See Sorto v. State, 173 S.W.3d 469, 476 (Tex.Crim.App. 2005); Prince v. State, 192 S.W.3d 49, 58 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd). Under Rule 803(1), a present sense impression is one "describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." TEX. R. EVID. 803(1). "The present sense impression exception to the hearsay rule is based upon the underlying premise that the contemporaneity of the event and the declaration ensures reliability of the statement. The closer the declaration is to the event the less likely there will be a calculated misstatement." Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App. 1999). Here, Chavaan testified that the robbery occurred at about 11:00 in the morning. The detective testified that the police department received Chavaan's call at about 3:00 in the afternoon and that officers arrived at Chavaan's apartment at about 3:45. Thus, more than four hours elapsed between the time of the robbery and the time Chavaan was interviewed by the detective. Therefore, the court would not have abused its discretion to conclude that Chavaan's statements to the detective were not sufficiently contemporaneous to be admissible under the present-sense-impression exception to the hearsay rule. See Beauchamp v. State, 870 S.W.2d 649, 653-54 (Tex.App.-El Paso 1994, pet. ref'd) (statement made 10-19 minutes after the fact not sufficiently contemporaneous); Cardenas v. State, 787 S.W.2d 160, 162 (Tex.App. — Houston [1st Dist.] 1990, pet. ref'd) (statement made to police in response to questioning on same day as shooting not sufficiently contemporaneous); see also United States v. Cain, 587 F.2d 678, 681 (5th Cir. 1979) (statement made 15 minutes after the fact not sufficiently contemporaneous). Accordingly, we overrule Mooring's fourth issue. We affirm the judgment.