Winegarner, Peter David ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-807-06

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PETER DAVID WINEGARNER, Appellant

v.

THE STATE OF TEXAS

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ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS DALLAS COUNTY

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Keller, P.J., filed a dissenting opinion in which Keasler and Hervey, jj., joined.

The complaining witness in this case left the jury with a false impression about a matter that went to the heart of the defense. I would hold, as did the court of appeals, that the trial court abused its discretion in excluding appellant's impeachment evidence.

Appellant was charged with misdemeanor assault and entered a plea of not guilty. During the guilt phase of the trial, his wife, Pamela Winegarner, was called as the State's primary witness. The single evidentiary issue in this case arises from her testimony.

On direct examination, Ms. Winegarner testified that she and appellant were having an argument at their home. She stated that appellant assaulted her by pinning her against a washing machine and shaking her, which resulted in injuries to her head, wrist, and hand. She testified that when she was released she went to the bedroom and called 911. She said that appellant used another phone in the house to speak to the operator and gave a different version of events, claiming that his wife was the aggressor and that he was acting in self-defense. While being questioned regarding the 911 call, Ms. Winegarner volunteered:

I don't know about some people, but men these days hit women. And I'm not crazy enough to hit a man or start a fight. That's why I always leave.

As the court of appeals explained, defense counsel sought to impeach Ms.Winegarner by cross-examining her about her plea in an assault case in which her former husband was the victim. ⁽¹⁾ The trial judge initially ruled that the questioning would be allowed, but the State persuaded him that the plea and resulting deferred adjudication were too remote, and too prejudicial, since they occurred thirteen or fourteen years previously. When the trial court disallowed this evidence, counsel offered to have the former husband testify about the altercation that was the basis of the criminal charge against Ms. Winegarner. The trial court excluded this testimony as well, relying upon rules prohibiting the use, for impeachment purposes, of extrinsic evidence of specific instances of conduct.

The trial judge should have followed his first inclination. The evidence of Ms. Winegarner's assault upon her former husband and her plea to the charge was not offered to show that, as a person with a certain criminal record, her moral character was flawed, or that she was an untrustworthy witness in general. ⁽²⁾ It was offered as evidence that she had lied on the stand about a specific matter that went to the heart of this case.

There is a commonly accepted impeachment rule when a witness testifies and leaves a false impression with the jury regarding past arrests, convictions, charges, or "trouble" with the police. ⁽³⁾ When the witness creates such a false impression, she "opens the door" to an inquiry into the veracity of her testimony. ⁽⁴⁾ Testimony that might normally be inadmissible becomes admissible to correct the false impression the witness left with the jury. ⁽⁵⁾

In the days before we adopted the Rules of Evidence, the "open the door" exception to the general rule of inadmissibility of extraneous offenses or bad acts was not broadly construed. Rather, it was generally limited to those instances in which a witness made assertions about his past that were either patently untrue, or clearly misleading. ⁽⁶⁾ Since the adoption of the rules, Rule of Criminal Evidence 107, the "Rule of Optional Completeness," has been recognized as encompassing the "opening the door" situation. ⁽⁷⁾

There are, however, two limitations to the scope of the completeness opening. One, only parts or items germane to the part or item offered ("on the same subject") become admissible. Two, the matter offered on the justification of completeness may be excluded under Rule 403 if its prejudicial effect substantially outweighs its probative value. ⁽⁸⁾

The court of appeals based its decision in part on our opinion in Daggett v. State. ⁽⁹⁾ In that sexual assault case, the defendant testified, "I would not do something like that," and "I have never done anything of that sort with a sixteen year old girl, period." ⁽¹⁰⁾ In holding that the defendant had "opened the door" to testimony from another girl whom he had molested, we said in a footnote:

Where, as here, the defendant's statement of good conduct is directly relevant to the offense charged - i.e., "I would never have sexual relations with a minor" - the opponent may both cross-examine the defendant and offer extrinsic evidence rebutting the statement. ⁽¹¹⁾

In this case, Ms. Winegarner stated unequivocally that she would not hit a man or start a fight, and that she "always" left. The evidence appellant sought to admit was "on the same subject" and directly contradicted these statements. If this evidence doesn't open the door to contradictory evidence, I can't imagine what kind of evidence would do so.

Furthermore, the evidence was not properly excludable under Rule 403. ⁽¹²⁾ The evidence responded to testimony that was central to appellant's claim of self-defense. Though this responsive evidence was prejudicial, it was not unfairly so because it was limited to narrowly rebutting the false impression created by the witness. And though Ms. Weingarner's testimony was given in the context of questions about the 911 call, it was not responsive to those questions. Moreover, while the prior episode happened many years before this trial, evidence of it nevertheless directly rebutted the complainant's statement because of its global nature ("I always leave"). ⁽¹³⁾

As the court of appeals noted, this case was about credibility. ⁽¹⁴⁾ Appellant's defensive theory was that Ms. Winegarner was the aggressor; her claim was that he was the aggressor. Given that the matter at issue in this case was self-defense, and given the close match between the volunteered statements and the evidence offered to rebut them, I agree with the court of appeals, and would hold that the trial court erred in excluding the proffered evidence. ⁽¹⁵⁾

I respectfully dissent.

DATE: October 10, 2007

PUBLISH  

1. Winegarner v. State, 188 S.W.3d 379, 380 (Tex. App.-Dallas 2006).

2. See Tex. R. Evid. 404 and 609.

3. Prescott v. State, 744 S.W.2d 128, 131 (Tex. Crim. App. 1988).

4.

See id.

5.

Id.

6. See Orozco v. State, 301 S.W.2d 634 (Tex. Crim. App. 1957).

7. Fuentes v. State, 991 S.W.2d 267, 279 (Tex. Crim. App. 1999).

8. Id. (citing Steven Goode, Olin Guy Wellborn II, and M. Michael Sharlot, 1 Texas Practice Guide to the Texas Rules of Evidence: Civil and Criminal § 107.1 at 41 (West 1993)(footnotes omitted)).

9. 187 S.W.3d 444 (Tex. Crim. App. 2005).

10. Id. at 453 n.24

11. Id.

12. Tex. R. Evid. 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."

13. I disagree with the Court's conclusion that appellant failed to preserve error with respect to the "I always leave" portion of the complainant's testimony. This statement immediately followed, "I'm not crazy enough to hit a man or start a fight." See Tex. R. App. P. 33.1(a)(1)(A)(objection must state grounds "with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context").

14. Winegarner v. State, 188 S.W.3d at 382.

15. It should be noted that when evidence is admitted to rebut a false impression, the opposing party is entitled, upon request, to a limiting instruction directing the jury to consider the evidence only in assessing the witness's credibility. See Daggett,187 S.W.3d at 454.