Michael Chase Jordan v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00324-CR
MICHAEL CHASE JORDAN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 121st District Court
Terry County, Texas
Trial Court No. 7152, Honorable John A. Didway, Presiding
February 5, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Appellant, Michael Chase Jordan, appeals his conviction for possession of a
controlled substance, namely methamphetamine. Three issues pend for our
consideration, two of which involve appellant’s desire to impeach a testifying officer and
one involving due process. We affirm.
Due Process
We begin with the due process matter. Appellant asserts that his right to due
process was denied him when his conviction was obtained through the use of false
testimony. The allegation of false testimony concerned Sargeant Valdonado’s purported
refusal to acknowledge that he questioned appellant, at the police station, about a camera
bag prior to appellant being mirandized.1 Appellant sought to impeach Valdonado
through a video recording that captured the exchange or, as appellant calls it, the
interrogation. The trial court agreed that appellant could use the video for that purpose.
However, the court viewed the situation as defense counsel “putting [his] client on through
a video of statements made to the police,” and, consequently, doing such “does open up
his credibility at that point in time.” In other words, defense counsel’s sponsoring or
admitting the video was comparable to appellant testifying, according to the trial court.
That resulted in appellant opting to forgo proffering the video. Indeed, no one proffered
it into evidence.
Now, appellant contends that his right to due process was denied him because his
conviction was obtained through false testimony. The purportedly false testimony is
comprised of Valdonado’s comments regarding when appellant was mirandized and the
subject of his questioning before then. Yet, this particular contention was not mentioned
below, which is problematic. It is well settled that the grounds for reversal urged on appeal
must comport with the grounds mentioned to the trial court. Amero v. State, No. 07-17-
00077-CR, 2018 Tex. App. LEXIS 178, at *5 (Tex. App.—Amarillo Jan. 5, 2018, pet. ref’d)
(mem. op., not designated for publication). If they do not, then the grounds urged for the
first time on appeal were not preserved. Id. Furthermore, the obligation to preserve
encompasses complaints about whether an accused’s right to due process was denied
him because his conviction was purportedly obtained through false testimony. Garza v.
1 Drugs were found within the bag.
2
State, No. 05-10-00229-CR, 2011 Tex. App. LEXIS 5522, at *19 (Tex. App.—Dallas July
20, 2011, pet. ref’d) (not designated for publication) (wherein the appellant failed to object
based on due process or the use of false testimony but rather only on “grounds of hearsay
and demonstration before the jury”); see also Shaw v. State, No. 04-17-00535-CR, 2018
Tex. App. LEXIS 3807, at *3 (Tex. App.—San Antonio May 30, 2018, pet. ref’d) (mem.
op., not designated for publication) (holding that because appellant did not object to the
purportedly false testimony, he did not preserve his contention that his right to due
process was denied him); Davis v. State, 276 S.W.3d 491, 499-500 (Tex. App.—Waco
2008, pet ref’d) (holding the same). Because appellant did not urge his due process
ground at trial, it was not preserved for review. Therefore, we overrule the issue.
Impeachment with Video
Next, we address the argument that the trial court erred in holding appellant’s
admission of the same video to impeach Valdonado would allow the State to offer
evidence of appellant’s prior convictions. Again, the trial court’s decision was premised
on the belief that so using the video was tantamount to appellant testifying. We overrule
the issue.
A defendant who testifies at trial places his credibility at issue and may be
impeached like any other testifying witness. White v. State, 21 S.W.3d 642, 646 (Tex.
App.—Waco 2000, pet. ref’d). Thus, he too may be impeached via Rule 609 of the Texas
Rules of Evidence and any other applicable rule of evidence. TEX. R. EVID. 609(a)
(permitting the admission of prior criminal convictions for felonies and crimes of moral
turpitude if the probative value of same outweighs its prejudicial effect); White, 21 S.W.3d
at 646. So, had appellant testified, he would have been subject to impeachment through
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Rule 609. The pivotal question, though, is whether the admission by a defendant of a
video of his interrogation wherein, among other things, he effectively denies that the bag
holding the drugs was his is equivalent to testifying for purposes of Rule 609 and other
rules concerning impeachment. Appellant did not address this topic via discussion or
citation to authority. He merely said such things as his comments on the video were not
being used to prove the matter asserted and that his comments were “an unavoidable by-
product” of having to impeach Valdonado. Yet, whether his comments in the video,
especially those of an exculpatory nature, amounted to his testifying went unmentioned.
Irrespective of whether we have an opinion on the matter, the appellant has the
burden to provide us with clear, concise argument for the contentions made, with
appropriate citation to legal authority. TEX. R. APP. P. 38.1(i); see also Bohannan v. State,
546 S.W.3d 166, 179-80 (Tex. Crim. App. 2017) (stating that it is incumbent on an
appellant to cite specific legal authority and to provide legal argument based on that
authority). If such citation and argument is missing, the topic has been inadequately
briefed and waived. Ramos v. State, No. 07-17-00109-CR, 2017 Tex. App. LEXIS 10035,
at *4 n.2 (Tex. App.—Amarillo Oct. 25, 2017, no pet.) (mem. op., not designated for
publication). Since appellant provided us with neither substantive argument regarding
whether use of the video was comparable to his testifying nor citation to legal authority
supporting the argument, he inadequately briefed his issue. Therefore, it was waived.
Impeachment with Evidence of Prior Drug Use
The final issue we address concerns the argument that the trial court erred
because it denied him the chance to impeach Valdonado by asking him, in front of the
jury, if he had previously admitted to “selling and using marijuana.” We overrule the issue.
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A litigant may not test a witness’s credibility through the use of specific instances
of conduct unless those specific instances involve a conviction for a crime. Sports-Theme
Rests. of N. Tex. Inc. v. Hernandez, No. 07-99-0175-CV, 2001 Tex. App. LEXIS 2961
(Tex. App.—Amarillo May 7, 2001, no pet.). Impeaching Valdonado by questioning him
about his purchase and use of marijuana is tantamount to impeaching him through use
of a specific instance of conduct. Moreover, nothing of record indicates that the instance
in question involved or resulted in a criminal conviction. Thus, the trial court did not err in
barring appellant from impeaching Valdonado in the manner sought.
Additionally, appellant argued that “Valdonado created the impression that
misconduct on the job would result in his dismissal and undermine his credibility” at work.
(Emphasis added). The impression was false, though, given the admission about selling
and using marijuana. So, according to appellant, he should have been allowed to use
the admission to impeach the officer. Yet, appellant acknowledged that nothing of record
disclosed that Valdonado used or sold marijuana while employed by the police
department. Without knowing when Valdonado used or sold marijuana, we cannot fault
the trial court from barring appellant’s using the admission to impeach Valdonado about
a supposed false impression he left concerning whether “misconduct on the job would
result in his dismissal.”
The judgment is affirmed.
Per Curiam
Do not publish.
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