Dexter Wayne Greene v. State ( 2011 )

NO. 07-10-0284-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
APRIL 13, 2011
DEXTER WAYNE GREENE, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM CRIMINAL DISTRICT COURT NO. THREE OF TARRANT COUNTY;
NO. 1160937D; HONORABLE ELIZABETH BERRY, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Dexter Wayne Greene, pled guilty in open court to two counts of
sexual assault of a child1 and was sentenced to two consecutive eighteen year
sentences.2 In a single point of error, Appellant asserts the trial court violated his right
1
See Tex. Penal Code Ann. § 22.011(a)(2) (West Supp. 2010).
2
In a separate cause number, Appellant was also convicted of a third offense of sexual assault
of a child and assessed a five year sentence to be served concurrently with the first of his two
eighteen year sentences.
to due process guaranteed by the Fourteenth Amendment of the United States
Constitution by excluding evidence of his written and recorded statements to the police
during his punishment trial. We affirm.
Background
On July 14, 2009, a Tarrant County Grand Jury returned an indictment against
Appellant alleging that he intentionally and knowingly caused the sexual organ of W. H.,
a child younger than seventeen years of age who was not Appellant's spouse, to
contact Appellant's mouth on April 1 and May 1 of 2008, Counts One and Two
respectively. Appellant subsequently pled guilty to both counts and a punishment trial
was held before a jury.
Prior to the punishment trial, the State successfully moved to prohibit any
mention of Appellant's oral or written statements to the police on the grounds that the
statements were self-serving and inadmissible hearsay. At the punishment trial,
Sergeant Detective Tom Milner testified on direct examination, in pertinent part, as
follows:
STATE: [W. H.] didn't ask any adults for help, did he?
MILNER: No.
STATE: [W. H.] tried to handle it himself?
MILNER: Yes.
STATE: In fact, [W. H.] tried to push him off, didn't he?
MILNER: [W. H.] did say that he had a fight with him, yes.
STATE: But, I mean, independent of pushing him off, the fight was later,
wasn't it?
2
MILNER: Yes.
STATE: [W. H.] tried to push him off one time. Another time when
the defendant tried to get [W. H.] to go to sleep, that's when
the fight began?
MILNER: Yes.
STATE: What did [W. H.] do?
MILNER: [W. H.] stated he hospitalized [Appellant], cracking his ribs.
STATE: [W. H.] hurt him?
MILNER: Yes.
STATE: [W. H.] wanted it to stop, and [Appellant] wouldn't take no for
an answer?
MILNER: No.
On cross examination, Detective Milner testified, in pertinent part, as follows:
DEFENSE: Did you just state that [W. H.] offered that he---I'm sorry.
What did you just say about the fight?
MILNER: Said that he hospitalized [Appellant].
DEFENSE: All right. And [W. H.] gave you a reason why?
MILNER: He said that [Appellant] was trying to get him to go to sleep,
so Appellant could perform sexual acts on him.
DEFENSE: And do you have any reason to believe that there's anything
that explains or contradicts that?
MILNER: No.
Appellant then sought to introduce his out-of-court oral and written statements to
Detective Milner to explain or contradict Milner's testimony regarding W. H.'s reasons
for breaking Appellant's ribs and hospitalizing him.3 Appellant asserted that the State
3
In his oral and written statements to Detective Milner, Appellant described W. H. as an
aggressor who broke Appellant's ribs when he refused to perform sexual acts on W. H.
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"opened the door" in its direct examination of Milner and Appellant's statements were
necessary mitigation evidence regarding whether the sexual acts were forced or
consensual. The State asserted that no evidence of Appellant's statements was offered
in Detective Milner's direct examination and it was defense counsel that "opened the
door" to whether other evidence existed that explained or contradicted Detective
Milner's account of W. H.'s motivation for breaking Appellant's ribs. The trial court
denied Appellant's request.
At the trial's conclusion, the jury found Appellant guilty of Counts One and Two in
the indictment and sentenced Appellant to two consecutive sentences of eighteen years
confinement. This appeal followed.
Discussion
Appellant asserts that his own out-of-court statements were admissible as
mitigation evidence because the statements directly contradicted Detective Milner's
testimony that W. H. had told him that he was fending off Appellant's sexual advances
when he cracked Appellant's ribs. Further, Appellant argues that, due to Detective
Milner's blanket declaration that he was unaware of any evidence that contradicted or
explained W. H.'s version of why he fractured Appellant's ribs, the jury was given the
false impression that Appellant was physically aggressive towards W. H. Appellant
asserts this created a false impression that led the jury to assess near-maximum
sentences. The State counters contending the trial court correctly excluded Appellant's
statements because they were inadmissible hearsay and unnecessary to explain or
contradict any evidence first offered by the State.
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Standard of Review
We review a trial court's decision to admit evidence under an abuse of discretion
standard. Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007) (citing Apolinar
v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005)). A trial court abuses its discretion
only when the decision lies "outside the zone of reasonable disagreement." Id.
Self-serving Statements
The general rule in Texas is that self-serving statements are generally
inadmissible as proof of the facts they assert. Allridge v. State, 762 S.W.2d 146, 152
(Tex.Crim.App. 1988), cert. denied, 489 U.S. 1040, 109 S. Ct. 1176, 103 L. Ed. 2d 238
(1989). Testimony by third persons as to an accused's self-serving declarations are
hearsay and thus inadmissible. Moore v. State, 849 S.W.2d 350, 351 n.1
(Tex.Crim.App. 1993) (citing DeRusse v. State, 579 S.W.2d 224, 233 (Tex.Crim.App.
1979)).
There are exceptions, however, to this general rule. Allridge, 762 S.W.2d at 152.
A self-serving statement may be admissible if the statement is: (1) part of the res
gestae of the offense or arrest, (2) part of a statement or conversation already offered
by the State, or (3) necessary to explain or contradict evidence first offered by the State.
Id. (citing Singletary v. State, 509 S.W.2d 572, 576 (Tex.Crim.App. 1974)). The theory
behind the third exception is to prevent the fact finder from being misled or perceiving a
false, incorrect impression when hearing only a part of an act, declaration, conversation,
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or especially, a writing. Reado v. State, 690 S.W.2d 15, 17 (Tex.App.--Beaumont 1984,
pet. ref'd).4
Here, Appellant makes no contention that his statements were part of the res
gestae of the offense, and the record does not show that the State made any effort to
proffer any portion of Appellant's statements in its case-in-chief or at any other time.
Therefore, Appellant is unable to prove either the first or second exceptions.
In addition, there is no showing that Appellant's out-of-court statements to
Detective Milner were necessary to correct a false or incorrect impression created by
Detective Milner's testimony regarding W. H.'s self-described motivation for injuring
Appellant. Here, Appellant sought to use his out-of-court statements to contradict or
assert an alternative version of the events described by W. H. through Detective
Milner's testimony. As such, Appellant's statements were not necessary to clear up any
misconceptions for the jury regarding how or why the events described by W. H.,
through Detective Milner's testimony, occurred. Detective Milner's account of W. H.'s
statement regarding Appellant's rib injury was complete. That the State did not present
exculpatory or explanatory testimony favoring Appellant in its case-in-chief does not
4
This is the so-called rule of optional completeness, a common-law doctrine that is a recognized
exception to the hearsay rule. See Walters, 247 S.W.3d at 218. This rule is one of admissibility
and permits the introduction of otherwise inadmissible evidence when the evidence is necessary
to fully and fairly explain a matter "opened up" by the adverse party. Id. (citing Parr v. State,
557 S.W.2d 99, 102 (Tex.Crim.App. 1977)). That said, however, simply "opening up the door,"
does not automatically require admission of otherwise inadmissible evidence under the rule of
optional completeness. Sauceda v. State, 129 S.W.3d 116, 122 (Tex.Crim.App. 2004); Kipp v.
State, 876 S.W.2d 330, 337 (Tex.Crim.App. 1994). Rule 107 of the Texas Rules of Evidence
indicates that, in order to be admitted, the omitted portion of the statement must be “on the
same subject” and must be “necessary to make it fully understood." Tex. R. Evid. 107.
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equate to misleading the jury or leaving the jury with only a partial or incomplete version
of the facts. In fact, the State did proffer W. H. as a witness during its case-in-chief and
during cross-examination, W. H. indicated that he injured Appellant's ribs while they
were playing on Appellant's living room floor
Further, it has been held that, when the accused does not take the stand, self-
serving statements are not admissible when they are merely contradictory to some act
or declaration first proffered by the prosecution. Starks v. State, 776 S.W.2d 808, 811
(Tex.App.--Fort Worth 1989, pet. ref'd) (citing Reado, 690 S.W.2d at 17). Here,
Appellant did not testify. Therefore, if the trial court had admitted Appellant's
statements, there would have been no opportunity to cross-examine Appellant on his
statements to Detective Milner. Under the circumstances, to admit Appellant's self-
serving statements in the State's case-in-chief would permit any defendant to place his
version of the facts before the jury through hearsay statements without being subject to
cross-examination. See Reado, 690 S.W.2d at 17 ("To adopt Appellant's position would
mean that all self-serving statements by an accused would be admissible.")
Accordingly, we find the trial court did not abuse its discretion in excluding Appellant's
self-serving statements.5
Renteria v. State, 206 S.W.3d 689 (Tex.Crim.App. 2006), is of no assistance to
Appellant. In Renteria, the Criminal Court of Appeals determined it was error not to
5
Even if Appellant's cross-examination of Detective Milner may have somehow misled the jury or
created a false impression in their minds as Appellant suggests, this does not make his self-
serving out-of-court statements admissible. Renteria v. State, 206 S.W.3d 689, 705
(Tex.Crim.App. 2006).
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admit a defendant's self-serving statement to police wherein he expressed remorse
after the State presented expert testimony at trial, based on hypotheticals supported by
the record, that a person like the defendant would be a future danger to society in part
because the hypothetical person was unremorseful. Id. at 694-98. Unlike Renteria
wherein the State depicted the defendant as unremorseful through hypotheticals, here,
Detective Milner's testimony merely described W. H.'s account of his motivation for
injuring Appellant while saying nothing of Appellant's state of mind or motivation at the
time he was injured. As such, this case is more like Starks, supra, wherein the trial
court properly excluded a defendant's self-serving statement that his gun went off
accidently as opposed to intentionally; Starks, 776 S.W.2d at 811, or Walck v. State,
943 S.W.2d 544 (Tex.App.--Eastland 1997, pet. ref'd), wherein the trial court properly
excluded a defendant's self-serving statements to his psychologist intended to establish
his state of mind at the time of the offense. Id. at 545. In both cases, as here, the
excluded statement does not contradict an act or declaration, but instead merely seeks
to contradict the State's evidence of intent. Appellant's single point of error is overruled.
Conclusion
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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