Opinion
No. 08-16-00185-CR
04-06-2018
TIMOTHY MURRAY, APPELLANT, v. THE STATE OF TEXAS, APPELLEE.
Appeal from the 299th District Court of Travis County, Texas (TC# D-1-DC-15-203174) OPINION
Timothy Murray, pro se, appeals his conviction of aggravated assault on a public servant with a deadly weapon, enhanced by a prior felony conviction. A jury found Appellant guilty, found the enhancement paragraph true, and assessed his punishment at imprisonment for sixty years. We affirm.
FACTUAL SUMMARY
On the evening of May 29, 2015, two Austin police officers, Jason Jones and Brian Huckaby, were on bicycle patrol in downtown Austin. Both men were wearing their reflective bicycle police uniforms. The officers were investigating a report that a man was falsely claiming to be a parking lot attendant and collecting money for parking spaces. After locating the man, the officers began conducting surveillance to catch him in the act. They noticed two men get into a truck parked in a dimly lit area. A few minutes later, the passenger exited and another man got into the truck on the passenger side. Suspecting drug activity, the officers approached the rear of the truck on their bicycles. Both officers got off of their bikes, and Jones approached on the passenger side while Huckaby went to the driver's side. The dome light was illuminated and Jones observed a hand-to-hand transaction between the driver and passenger. Jones saw money in the driver's hands, but he did not see anything in the passenger's hands. Believing he was witnessing a drug deal, Jones opened the passenger door and announced, "Austin Police," while Huckaby shined a light into the driver's window. The driver, who was subsequently identified as Appellant, turned and looked directly at Jones. Appellant had his hands in his lap, and Huckaby saw both money and something shiny. Jones ordered both men to put up their hands, but Appellant instead started the vehicle, threw it into reverse, and quickly accelerated. Because Jones had been standing inside of the open door, he became trapped between the vehicle and the door while Appellant accelerated in reverse. Both officers continued to identify themselves as police officers while yelling at Appellant to stop. When Appellant struck the curb, Jones was thrown into a vehicle parked behind them. Jones suffered significant pain and bruising to his arms and chest. Both Appellant and the passenger were placed under arrest. Appellant had more than $600 in cash in his back pocket. Officers also found more money in small denominations on the floorboard of the truck, a bundle of small plastic bags in the glove box of the vehicle, and a plastic mints container under the driver's seat with 1.117 grams of cocaine in rock form.
A grand jury returned an indictment against Appellant for aggravated assault of a police officer with a deadly weapon and possession of cocaine, and the State consolidated the two cases for trial. The jury found Appellant guilty of each offense and assessed his punishment at imprisonment for sixty years for the aggravated assault case, and a $10,000 fine and imprisonment for twenty years for the possession of cocaine case. Appellant filed notice of appeal in each case and the trial court appointed counsel to represent him on appeal. After the parties filed their briefs, the Court granted Appellant's motion to represent himself on appeal. Appellant filed a consolidated brief and supplemental briefs for both cases raising ten issues. Our opinion will address all ten issues raised in this appeal.
The possession of cocaine conviction is the subject of appeal in cause number 08-16-00186-CR, styled Timothy Murray v. State of Texas.
MOTION TO DISMISS TRIAL COUNSEL
In his first issue, Appellant argues that the trial court denied him the right to effective assistance of counsel by denying his pretrial motion to dismiss appointed counsel. Less than one week after the grand jury returned the indictment, the trial court appointed Russell Hunt, Jr. to represent Appellant. On March 22, 2016, Appellant filed a motion to dismiss appointed counsel on the grounds that counsel had failed to file necessary motions and Appellant had lost faith in counsel. At the beginning of trial on the merits on June 21, 2016, the trial court considered the parties' motions in limine, and Appellant's trial counsel informed the court that Appellant would like for the court to rule on his pro se motion to quash. The court informed Appellant that he was not entitled to hybrid representation, but she nevertheless denied his motion to quash. Appellant did not bring the motion to dismiss appointed counsel to the trial court's attention or ask for a ruling until after the jury had retired to deliberate during the punishment phase. The court denied the motion.
In order to present a complaint on appeal, the record must show that the party brought the complaint to the trial court's attention by a timely request, objection, or motion and the trial court ruled on the request, objection, or motion either expressly or implicitly. See TEX.R.APP.P. 33.1(a). To be timely, the complaint must be raised at the earliest opportunity possible. Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998). While Appellant filed his pro se motion to dismiss Mr. Hunt as his attorney three months prior to trial, he did not bring the motion to the trial court's attention or request a ruling until after the jury had retired to deliberate on punishment. We conclude that Appellant waived error because he failed to raise his complaint at the earliest possible opportunity. Issue One is overruled.
BATSON CHALLENGE
In Issue Two, Appellant contends that the trial court erred by denying his Batson challenge after the State used a peremptory strike to dismiss from the jury panel an African-American woman.
Applicable Law and Standard of Review
A prospective juror may not be peremptorily challenged solely on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). A Batson challenge involves a three-step process: (1) the opponent of the strike must make a prima facie showing of racial discrimination; (2) the burden then shifts to the proponent of the strike to articulate a race-neutral reason for the strike; and (3) the trial court must decide whether the opponent has proved purposeful racial discrimination. See Grant v. State, 325 S.W.3d 655, 657 (Tex.Crim.App. 2010).
When reviewing a Batson challenge, we are required to afford considerable deference to the trial court's ruling on the issue of discriminatory intent because a finding on this issue largely turns on the trial court's evaluation of the demeanor and credibility of the attorney who exercised the peremptory challenge. Hernandez v. New York, 500 U.S. 352, 364-65, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395 (1991); see Greer v. State, 310 S.W.3d 11, 13 (Tex.Crim.App. 2009). We examine the record in the light most favorable to the trial court's ruling and reverse only when it is clearly erroneous. See Herron v. State, 86 S.W.3d 621, 630 (Tex.Crim.App. 2002). The trial court's ruling will not be disturbed unless we are left with a definite and firm conviction that a mistake has been committed. Hernandez, 500 U.S. at 369, 111 S.Ct. at 1871; Greer, 310 S.W.3d at 13.
Analysis
When Appellant raised his Batson objection to the State's use of a peremptory challenge against prospective juror Massie, the trial court skipped the first part of the Batson test and immediately requested the prosecutor to offer a race-neutral explanation. Likewise, we will skip the first step of the Batson analysis. See Greer, 310 S.W.3d at 313 (the appellate court will skip the first step of the analysis if the trial court skips the first step of the analysis and immediately inquires as to the striking party's race-neutral reasons). The prosecutor explained that he used a peremptory strike against Massie because she could not find a person guilty based on the testimony of just one witness and she would require the State to present forensic evidence in order to convict. Both the prosecutor and the trial court acknowledged that defense counsel had rehabilitated Massie to the point that she was not challengeable for cause, but Massie indicated it would still be difficult for her to convict based on the testimony of only one witness. The trial court noted that Massie had also expressed her opinion that police officers who are assaulted on duty should not get any additional protection under the law. The court overruled Appellant's Batson challenge. After the court empaneled the jury, the prosecutor added that he had reviewed his notes and had an additional reason for using a peremptory challenge against Massie. He stated that Massie had indicated she did not believe that possession of drugs should be illegal. Appellant then moved to strike the jury because it was non-representative of the community. The court denied the motion.
Appellant argues that the prosecutor's supplemental explanation that he struck Massie because she did not believe drug possession should be illegal is pretextual because another prospective juror, Ervin, expressed the same belief. Ervin initially stated that drugs should not be illegal, but she subsequently clarified that current drug laws did not address the problem, and she clearly expressed that she would be able to find a person guilty of drug possession if the State proved its case. Massie, in contrast, initially stated that she could not convict based on the testimony of only one witness and she would require forensic evidence. During defense counsel's voir dire, Massie retreated from this position somewhat, but she continued to state she would require "more potent, more powerful" evidence and would need to be "very convinced" before she would find a defendant guilty. Based on this record, the State's explanation for striking Massie was not pretextual and the trial court's denial of Appellant's Batson challenge is not clearly erroneous. Issue Two is overruled.
EXTRANEOUS OFFENSE EVIDENCE
In Issue Three, Appellant asserts that the trial court abused its discretion by admitting evidence that he was on parole at the time these offenses were committed. It is undisputed that Appellant made a timely request pursuant to TEX.R.EVID. 404(b) for notice of the State's intent to introduce extraneous offense evidence at trial. On April 27, 2016, the State provided written notice to Appellant that it intended to introduce evidence at trial that Appellant was convicted of the offense of murder on July 9, 1992 in cause number D-202-CR-91-436 in the 202nd District Court of Bowie County, Texas. At trial, the State introduced evidence, over Appellant's objections, that he was on parole for an unspecified felony offense at the time the charged offenses were committed and he was facing a return to prison for a parole violation if arrested and convicted for these offenses. The State argued the evidence had relevance apart from character conformity because it explained Appellant's reaction to the officers and tended to show Appellant had knowledge of the drugs in the vehicle.
The trial court did not permit the State to specifically introduce evidence that Appellant was on parole for the offense of murder.
Notice under Rule 404(b)
Appellant concedes that his defensive theory put his motive at issue. Thus, he has waived any error regarding the relevance of this evidence. Drawing a distinction between evidence of his murder conviction and his parole status, Appellant instead argues that the State did not provide him with Rule 404(b) notice of its intent to use his parole status evidence at trial. The State responds that Appellant did not preserve error. We agree. In order to preserve error, Appellant was required to make a timely and specific objection to this evidence. See TEX.R.APP.P. 33.1(a). Further, the argument made on appeal must comport with the objection made at trial. Yazdchi v. State, 428 S.W.3d 831, 844 (Tex.Crim.App. 2014). Appellant objected that the evidence was not relevant and it was prejudicial, but he never objected to a lack of notice under Rule 404(b). Consequently, this issue is waived. See Martinez v. State, 131 S.W.3d 22, 36 (Tex.App.--San Antonio 2003, no pet.).
Rule 403
Appellant also argues that the trial court abused its discretion by admitting evidence of his parole status because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice under Rule 403 of the Texas Rules of Evidence. See TEX.R.EVID. 403.
A trial court's decision to admit extraneous offense evidence is reviewed for an abuse of discretion. See Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). As long as the trial court's ruling falls within the zone of reasonable disagreement, the appellate court should uphold the trial court's decision. Id. When the trial court admits evidence over a Rule 403 objection, the reviewing court is required to defer to that decision and it should not substitute its own decision for that of the trial court. Id.
The record reflects that the trial court engaged in a careful balancing of probative value and the danger of unfair prejudice. The court correctly found that the evidence was relevant to Appellant's knowledge of the drugs in the car, his motive, and to rebut the defensive theory of accident. The State had a significant need for the evidence to not only show Appellant's knowledge of the drugs in the vehicle but to rebut Appellant's claim that he did not know Jones and Huckaby were police officers and he tried to flee because he believed they were trying to rob him. To minimize the danger of unfair prejudice, the court did not allow the witness to identify the specific offense for which Appellant was on parole. We conclude that the trial court did not abuse its discretion by overruling Appellant's Rule 403 objection. See Powell v. State, 189 S.W.3d 285, 289 (Tex.Crim.App. 2006)(probative value of evidence that defendant was on parole and that firearm was found on ground near driver's side of vehicle was not substantially outweighed by danger of unfair prejudice in trial for evading arrest in vehicle; jury was not informed of the crime for which defendant was on parole, the strength or weakness of the firearm's connection to defendant reflected equally on the issues of probative value and prejudice, and the State had a significant need for the evidence). Issue Three is overruled.
AMENDED MOTION FOR NEW TRIAL
In Issue Four, Appellant contends that the trial court erred by dismissing his amended motion for new trial. The appellate timetable began to run on June 23, 2016 when the trial court imposed sentence in open court. See TEX.R.APP.P. 26.2(a)(1). Appellant's motion for new trial was due to be filed no later than July 22, 2016. Appellant timely filed a motion for new trial on July 14, 2016, and the trial court denied the motion on July 18, 2016. Appellant filed an amended motion for new trial on August 23, 2016, more than one month after the deadline for filing motion for new trial. The motion for new trial is supported by an affidavit from Marquis Cox who avers that he was present at the scene and did not hear the police officers identify themselves as police when Appellant put the vehicle in reverse and began driving backwards. The State objected to the untimely amended motion for new trial. The trial court dismissed Appellant's amended motion for new trial as untimely, but ruled that even if the amended motion had been timely, it did not require the granting of a new trial.
Rule 21.4 establishes the deadlines for filing a motion and amended motion for new trial as follows:
(a) To File. The defendant may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open
court.TEX.R.APP.P. 21.4.
(b) To Amend. Within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.
Thus, an amendment of a motion for new trial must be made within thirty days of the date sentence is imposed in open court. The Court of Criminal Appeals has held that an amendment cannot be made beyond this time period, even with leave of court, if the State objects. See State v. Moore, 225 S.W.3d 556, 570 (Tex.Crim.App. 2007).
Appellant acknowledges that his amended motion is untimely under Rule 21.4, but he argues that the rule and the Court of Criminal Appeals' holding in State v. Moore should be reconsidered under the rationale of Ex parte Michael W. Morton, No. AP-76,663, 2011 WL 4827841 (Tex.Crim.App. Oct. 12, 2011). He maintains that a procedural rule should not bar late-discovered evidence. The Court of Criminal Appeals granted habeas relief in Ex parte Moore based on newly-discovered DNA evidence showing that a person other than Moore had committed the murder of Moore's wife. Ex parte Moore, 2011 WL 4827841, at *1. In response to Moore's wrongful conviction, the Texas Legislature, on January 1, 2014, enacted the Michael Morton Act amending Article 39.14 of the Code of Criminal Procedure. See Act of May 14, 2013, 83d Leg., R.S., ch. 49, § 2, 2013 TEX.GEN.LAWS 106, 106 (eff. Jan. 1, 2014)(codified at TEX. CODE CRIM. PROC.ANN. art. 39.14). The Michael Morton Act changed Texas law related to discovery in criminal cases in order to prevent wrongful convictions by ensuring defendants have access to the evidence in the State's possession so they may prepare a defense. See Briscoe v. State, --- S.W.3d ---, 2018 WL 792255, at *7 n.10 (Tex.App.--Texarkana 2018, no pet.h.). In the instant case, Appellant does not allege and there is no evidence in the record showing that the State withheld any favorable evidence related to this newly-discovered witness. Thus, the specific rationale underlying the Michael Moore Act is not implicated here. We therefore decline to ignore the requirements of Rule 21.4. Issue Four is overruled.
AMENDMENT OF THE INDICTMENT
In Issue Five, Appellant asserts that the trial court erred by permitting the State to amend the indictment because the amendment added an additional type of assault to the substance of the aggravated assault indictment. Following a hearing, the trial court granted the State's motion to amend the indictment by adding the language, "and/or by causing Jason Jones to forcibly collide with another vehicle." The court overruled Appellant's objection that the amendment was substantive and should be presented to the grand jury.
The State also amended the indictment to correct Appellant's name. Appellant does not raise any issue on appeal related to the amendment of his name.
Article 28.10 provides:
(a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.TEX.CODE CRIM.PROC.ANN. art. 28.10 (West 2006).
(b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object.
(c) An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.
The original indictment charged Appellant with aggravated assault on a public servant under Sections 22.02(a)(2) and 22.02(b)(2)(B) of the Texas Penal Code by alleging that he intentionally, knowingly, or recklessly caused bodily injury to peace officer Jason Jones, a person Appellant knew was a public servant, by causing Jones to be trapped between the open door and the body of the motor vehicle that was being operated by Appellant while the vehicle was in motion. See TEX.PENAL CODE ANN. §§ 22.02(a)(2), (b)(2)(B)(West 2011). The indictment also alleged that Appellant used or exhibited a deadly weapon, i.e., a motor vehicle, during the commission of the offense. The amendment additionally alleged that Appellant caused bodily injury to Officer Jones by causing him to forcibly collide with another vehicle. Thus, the amendment alleged a different manner and means of committing the same aggravated assault offense, and it did not allege a separate or additional offense. As a result, the amendment did not violate Article 28.10(c). Issue Five is overruled.
MOTION FOR EXAMINING TRIAL
In Issue Six, Appellant contends that the trial court erred by failing to grant his motion for an examining trial. On June 10, 2015, Appellant filed a pro se motion for an examining trial in cause number D-1-DC-15-203174. The grand jury returned the indictment in this case on June 19, 2015, and the trial court appointed counsel for Appellant on June 23, 2015. The alleged error is waived because Appellant did not secure an adverse ruling on his motion. See TEX.R.APP.P. 33.1. Further, the return of an indictment extinguishes the right to an examining trial. See State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 427 (Tex.Crim.App. 1990)(orig. proceeding). Issue Six is overruled.
SUFFICIENCY OF THE EVIDENCE
In his seventh issue, Appellant challenges the factual sufficiency of the evidence supporting his aggravated assault conviction. The Court of Criminal Appeals abandoned factual sufficiency review in 2010. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App. 2010). Accordingly, we will construe Appellant's complaint as a legal sufficiency challenge.
Standard of Review and Applicable Law
Sufficiency of the evidence to support a criminal conviction is governed by the standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Under that standard, a reviewing court must consider all evidence in the light most favorable to the verdict and in doing so determine whether a rational justification exists for the jury's finding of guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95, citing Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2789. Because the jury is the sole judge of the weight and credibility of the evidence, we must presume that the fact finder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App. 2014). Further, we are not permitted to reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App. 2010). Our task is to determine whether, based on the evidence and reasonable inferences drawn therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Id.
When conducting a sufficiency review, we consider both direct and circumstantial evidence and all reasonable inferences that may be drawn from the evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). The standard of review is the same for both direct and circumstantial evidence cases. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App. 2010). Each fact need not point directly and independently to the guilt of the accused, so long as the cumulative force of all the evidence, when coupled with reasonable inferences to be drawn from that evidence, is sufficient to support the conviction. Hooper, 214 S.W.3d at 13. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004).
Under Section 22.02(a)(2) of the Penal Code, a person commits aggravated assault if he commits an assault as defined in Section 22.01, and he uses or exhibits a deadly weapon during the commission of the assault. TEX.PENAL CODE ANN. § 22.02(a)(2)(West 2011). A person commits an assault under Section 22.01 if he intentionally, knowingly, or recklessly causes bodily injury to another person. TEX.PENAL CODE ANN. § 22.01(a)(West Supp. 2017). The offense is a first degree felony if it is committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty. TEX.PENAL CODE ANN. § 22.02(b)(2)(B)(West 2011).
Analysis
The indictment alleged that Appellant intentionally, knowingly, or recklessly caused bodily injury to Police Officer Jason Jones, a person Appellant knew is a public servant while Jones was lawfully discharging an official duty by causing him to be trapped between the open door and the body of the vehicle Appellant was operating while the vehicle was in motion or by causing him to forcibly collide with another vehicle. The application paragraph submitted both theories to the jury and permitted the jury to find Appellant guilty if it found beyond a reasonable doubt that he intentionally, knowingly or recklessly caused bodily injury to Jones by causing him to be trapped between the open door and body of the vehicle that was being operated by Appellant while the vehicle was in motion, or by causing him to forcibly collide with another vehicle.
Appellant contends that the evidence is insufficient because only one witness, Jones, testified that he collided with another vehicle. It is well established that the testimony of a single witness is sufficient to support a conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App. 1971); Castillo v. State, 913 S.W.2d 529, 532-33 (Tex.Crim.App. 1995); Shah v. State, 403 S.W.3d 29, 35 (Tex.App.--Houston [1st Dist.] 2012, pet. ref'd). Jones testified Appellant put the car in reverse and Jones became trapped between the door and the body of the car. As Appellant continued to drive the car in reverse, Jones had one arm on top of the vehicle and the other on top of the door as he backpedaled. Appellant's vehicle abruptly stopped when it hit a curb and the force threw Jones off the vehicle into a parked car. Viewing the evidence in the light most favorable to the verdict and drawing all reasonable inferences, we conclude that a rational trier of fact could find Appellant guilty of aggravated assault under both theories set forth in the indictment. Issue Seven is overruled.
EXCULPATORY EVIDENCE
In Issue Eight, Appellant asserts that the State failed to disclose Officer Jones' medical records. The prosecution has an affirmative duty to disclose evidence favorable and material to a defendant's guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963); Michaelwicz v. State, 186 S.W.3d 601, 613 (Tex.App.--Austin 2006, pet. ref'd). To establish a Brady violation, the defendant must show (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith, (2) the withheld evidence is favorable to him, and (3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Strickler v. Greene, 527 U.S. 263, 280-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999); Pena v. State, 353 S.W.3d 797, 809 (Tex.Crim.App. 2011).
The evidence at trial shows that Jones was taken to the hospital by ambulance. Jones testified that he suffered pain to his chest and arms from colliding with the vehicle and he had bruising to one of his arms. Photographs taken of Jones' arm shortly after the incident did not depict any bruises, but he testified that the bruises did not appear until the following day. Appellant contends that Jones' medical records would have disclosed whether Jones actually sustained a bruise on his arm, and the State's failure to disclose these records hampered his defense because he could not prove that there was no bodily injury. The record before us does not include this purported medical record. A finding of a Brady violation cannot be made on the basis of conjecture regarding what the record might have shown. See Carraway v. State, 507 S.W.2d 761, 764 (Tex.Crim.App. 1974)(appellate court could not determine accuracy of alleged Brady violation because claim was based on witness statement that was not included in record). Issue Eight is overruled.
EXCLUSION OF EVIDENCE
In his ninth issue, Appellant contends that the trial court abused its discretion by excluding evidence of a recording captured by the dash camera of a patrol car at the scene. During trial, Appellant made a pro se objection to the exclusion of this evidence and he argued that it was exculpatory. Defense counsel explained that the recording consisted of two parts: (1) an audio recording of an interview between Officer Jones and an investigator at the scene; and (2) an audio recording of an interview between the investigator and Appellant. Defense counsel stated on the record that he had explained to Appellant that both parts of the recording were inadmissible hearsay. The trial court then explained to Appellant that the evidence was hearsay and Jones' recorded interview was available for impeachment purposes if Officer Jones had made an inconsistent statement during his testimony. The court overruled Appellant's pro se objection to the exclusion of the recordings.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. See TEX.R.EVID. 801(d); Pena v. State, 353 S.W.3d 797, 814 (Tex.Crim.App. 2011). Generally, hearsay statements are not admissible unless the statement falls within a recognized exception to the hearsay rule. Pena, 353 S.W.3d at 814; see TEX.R.EVID. 802. Once the opponent of hearsay evidence makes the proper objection, it becomes the burden of the proponent of the evidence to establish that an exception applies that would make the evidence admissible in spite of its hearsay character. Taylor v. State, 268 S.W.3d 571, 578-79 (Tex.Crim.App. 2008).
Appellant did not argue in the trial court that the recording of Jones' interview was admissible pursuant to an exception to the hearsay rule or under any other legal theory. On appeal, he argues for the first time that the recording was admissible for impeachment purposes because it "would have totally contradicted Jason Jones testimony." Although the trial court acknowledged that the recording was available for impeachment purposes if Jones had contradicted himself when he testified, Appellant never argued that Jones had made an inconsistent statement or that the recording should be admitted for this purpose. He instead argued that the recording was not hearsay because it was a "video from a dash camera of a police car." Even if Appellant had presented this argument to the trial court, he failed to establish that the evidence is admissible under this theory. While a witness can be impeached under Rule 613 with a prior inconsistent statement, the proponent of the evidence must establish the foundation for admissibility. See TEX.R.EVID. 613 (party must examine the witness about the prior inconsistent statement and tell the witness the contents of the statement, the time and place of the statement, and the person to whom the witness made the statement). Further, extrinsic evidence of prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement he did not establish that extrinsic evidence of Jones' prior statement is admissible. See TEX.R.EVID. 613(a)(4). Because Appellant failed to establish that the recording is admissible for impeachment purposes, the trial court did not abuse its discretion by excluding the evidence. Issue Nine is overruled.
JURY ARGUMENT
In Issue Ten, Appellant argues that the State made improper jury argument the guilt-innocence phase of trial, and he directs our attention to three portions of the prosecutor's argument. We have reviewed each portion of the argument and find that Appellant did not object. Consequently, he has waived the alleged errors. See TEX.R.APP.P. 33.1; Estrada v. State, 313 S.W.3d 274, 303 (Tex.Crim.App. 2010). Issue Ten is overruled. Having overruled each issue, we affirm the judgment of the trial court. April 6, 2018
YVONNE T. RODRIGUEZ, Justice Before McClure, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)