Rodriguez v. State
| Decision Date | 10 June 1998 |
| Docket Number | No. 07-97-0188-CR,07-97-0188-CR |
| Citation | 974 S.W.2d 364 |
| Parties | Ruben T. RODRIGUEZ, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Mike Brown, Law Offices of Mike Brown, Lubbock, for appellant.
William C. Sowder, Chad Meacham, Dist. Attys., Lubbock, for appellee.
Before DODSON, QUINN and REAVIS, JJ.
Ruben T. Rodriguez, Jr. (appellant) appeals his conviction for sexual assault. Through three points of error, he questions 1) the trial court's decision to admit evidence of extraneous offenses, 2) the trial court's failure to provide an instruction limiting the purposes for which the jury could consider the extraneous offenses, and 3) the effectiveness of his counsel. We affirm.
C. O., a fourteen year old female, was spending the night with a cousin at appellant's house. As she slept on the floor of the living room near her cousin, appellant laid down beside her, raised her nightgown, attempted to unfasten her bra, unzipped her pants (she wore jeans underneath the gown), slipped a hand down her pants, and inserted a finger into her vagina. Throughout the incident, appellant told C.O. to be quiet as she called for her cousin and tried to struggle free. Despite C.O.'s cries, her cousin remained asleep. Eventually, C.O. managed to strike her assailant, who then passed out on the floor. Whether he collapsed as a result of the strike or because he was drunk is unknown. However, evidence indicated that appellant had consumed several beers earlier and that he was known to pass out after drinking heavily.
Once free of appellant's hold, C.O. went to her aunt's bedroom. There she awoke her aunt and told her that she had been "touched" by someone in the house. In response, the woman told C.O. that it was probably appellant and then directed her to return to bed. C.O. persisted and eventually persuaded her aunt to follow her into the living room. When the two entered the room and turned the lights on, they found appellant lying where C.O. had left him.
Subsequently, appellant was indicted for sexual assault. At trial, a jury found him guilty of sexual assault. It also sentenced him to twenty years in prison.
In his first two points, appellant complains of the trial court's refusal to exclude evidence of extraneous offenses and to instruct the jury about the purposes for which it could consider the evidence. We overrule the points.
The evidence in question arose during the following exchange:
Your Honor.
your objection, his objection.
As can be seen, appellant objected to the State's attempt to interject evidence of aggravated assault, driving while intoxicated, and felony criminal mischief. However, once the objection was overruled, he did not contemporaneously request a limiting instruction. Nor did he later ask that one be included in the jury charge.
Finally, the exchange referred to by the State as purportedly opening the door consisted of appellant's counsel previously asking the following questions and receiving the following responses from the same witness:
In determining whether a trial court erred in admitting evidence, we apply a standard of abused discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990). That is, unless the decision fell outside the zone of reasonable disagreement, given the law and pertinent circumstances, we must uphold it. Id. Moreover, the law applicable to the admission of evidence like that at bar is well-settled. Same is inadmissible to prove the character of a person. TEX.R.CRIM. EVID. 404(b); Abdnor v. State, 871 S.W.2d 726, 738 (Tex.Crim.App.1994). This is due to its inherent prejudice and tendency to confuse the issues. Id. Yet, like all rules, this one has its exceptions. The one applicable here involves the accused's inviting the State to present it. That is, if an accused creates what is purported to be a false impression about his nature as a law abiding citizen or his propensity for committing criminal acts, then he has opened the door for his opponent to present rebuttal evidence. Delk v. State, 855 S.W.2d 700, 704 (Tex.Crim.App.), cert. denied, 510 U.S. 982, 114 S.Ct. 481, 126 L.Ed.2d 432 (1993); Hammett v. State, 713 S.W.2d 102, 105-106 (Tex.Crim.App.1986). Furthermore, the rebuttal evidence can consist of his criminal history. Id.
Nonetheless, the court must proceed cautiously when encountering the situation. For instance, it must be assured of two things before granting the State permission to continue. The first is that the defendant opened the door and the second, that the door was opened far enough to allow the State to use the evidence it intends to use. As to the former, it is clear that only the accused has the authority to open the door; the State cannot do so via its examination of a witness or the defendant. Hammett v. State, 713 S.W.2d at 105 n. 4; Shipman v. State, 604 S.W.2d 182, 184-85 (Tex.Crim.App.1980). As to the latter, it is similarly clear that while the door may be opened it is not necessarily opened for everything to pass through. In effect, the rebuttal evidence cannot exceed the scope of 1) the question posed by appellant and 2) the answer given to it. Delk v. State, 855 S.W.2d at 703-705; Hammett v. State, 713 S.W.2d at 105-106. For instance, if the accused were asked by his attorney whether he had only been arrested once for public intoxication and the answer was yes, the State may not impeach the veracity of the answer by offering evidence that he was also convicted of criminal mischief. Hammett v. State, 713 S.W.2d at 107. This is so because evidence of criminal mischief does not impugn the veracity of the accused's statement that he was only arrested once for public intoxication. Id. Thus, the tenor of the dialogue between the appellant and counsel or appellant and witness dictates the nature of the evidence admissible for impeachment purposes.
Here, the dialogue between defense counsel and the witness encompassed appellant's "nature" to commit criminal activity. Yet, the scope of the criminal activity referred to by counsel was limited. It encompassed his propensity for doing that which "happened this night" and which "they are accusing him of doing." (Emphasis added). Moreover, those particular acts consisted of his sexually assaulting C.O. or molesting a child. And, when the witness responded that she believed he lacked such nature, the door was opened for the State to present evidence impeaching the response.
Nevertheless, the impeaching evidence had to be limited to impugning the veracity of the witness' answers regarding appellant's nature to do that with which he was accused or which happened that night. It is arguable that evidence of aggravated assault fell within this scope, given the assaultive behavior or physical aggressiveness inherent in both crimes. 1 However, the same cannot be said of the evidence regarding appellant's having driven while intoxicated or partaken in criminal mischief. To borrow from Hammett, proving that appellant had been convicted of DWI and charged with criminal mischief in no way impugned the veracity of the witness' statement regarding appellant's character to commit sexual assault. Thus, the evidence regarding DWI and criminal mischief was inadmissible.
We note the State's attempt to justify its action by arguing that the witness did eventually speak of appellant's...
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