APPELLANT

APPELLEE

A jury found Dennette Brothers Simmons, a/k/a Dennette James, appellant, guilty of murder. Tex. Penal Code Ann. § 19.02 (West 1989). The district court assessed punishment at imprisonment for forty years. We will affirm the conviction.

Only an abbreviated version of the facts is necessary for the disposition of the appeal.

On September 29, 1989, Sergeant Frank Elwood James and appellant picked up Sergeant James's five-year old son, Frank Terrel James, the decedent, in Tennessee and brought him to Killeen, Texas. Sergeant James testified that he retrieved his son from the child's mother because he feared the child was being abused. Evidence presented at trial demonstrated that the child lacked the coordination of other children his age and that the child would stumble and fall on occasion.

The evidence demonstrated that, before his death, the child was taken out of school. The Killeen Police Department took two written statements made by appellant that were admitted into evidence. The statements averred that, during the week before the child's death, the child hit his head in his temple area and, later that same week, the child staggered and walked into a wall at Scott and White Hospital.

Appellant testified that on the morning of December 3, 1989, the child had complained to her of a headache and had gone upstairs to his room to lie down. Early that same afternoon, appellant went to the child's room to check on him and noticed that he was not breathing. She stated that she carried the child downstairs and called an ambulance.

Paramedic Mark Munger and Firefighter-Paramedic Jeffrey Sharp were dispatched for the emergency call. Sharp examined the child and found no pulse. Sharp carried the child to the ambulance which transported the child to Darnall Army Hospital.

Dr. David Hardy, a pediatrician and pediatric critical care physician at Scott and White Hospital, first saw the child at around 5:00 p.m. on December 3, 1989. He testified that the child's symptoms indicated a pattern common in individuals who have severe brain injury and that he noticed swelling and bruising on the right side of the eye and face. Dr. Hardy further testified that he observed multiple scars and marks on the child's body. A CT scan of the child's head indicated that there was a subarachnoid hemorrhage, i.e., a diffuse layer of blood on the outside of the brain, and that blood had collected within a portion of the brain that normally does not collect blood. Dr. Hardy testified that the injuries to the child were consistent with a deceleration injury, ⁽¹⁾ which could have been caused accidentally or intentionally. However, he maintained that the child's injury was not consistent with the history provided to him by appellant. He stated that, at the time he first examined the child, he could not rule out that the child's death was caused by old trauma that had been reactivated; he subsequently rejected this hypothesis. The child was pronounced dead at 12:07 p.m. on December 4, 1989.

On December 6, 1989, Dr. Jeffrey Barnard, a Dallas County Medical Examiner, conducted the autopsy on the body of the child. Dr. Barnard classified the death as homicide. Certain tests that he performed indicated that some injuries occurred three to seven days before the date of death, while other injuries occurred three days or less before the death. Dr. Barnard testified that a history of a fall seven or eight days before death resulting in symptoms of a headache two days before death and unconsciousness one day before death was not possible in view of his findings.

On cross-examination by defense counsel, Dr. Barnard was asked if he recalled, or had any notes indicating, a conversation with Officer Caufield on February 7, 1990; Dr. Barnard answered in the negative. The specific testimony that gives rise to this appeal is set forth as follows:

Q: In his [Officer Caufield's] notes, if he stated he talked to you on that date and you told him that you noted that at this point, you could not say that the deceased had not received the head injury in a fall. However, there should have been obvious symptoms from the injury.

Do you recall telling him that?

A: I don't recall saying that. With varying aged injuries, that certainly can't be, so I don't recall saying it.

Q: You do recall talking to him on the 7th, though?

A: I don't recall talking to him on the 7th.

Officer Lee Caufield of the Killeen Police Department testified that the child was transported to Dallas on December 5, 1989, so that an autopsy could be performed. The next day, Officer Caufield went to Dallas and spoke with Dr. Barnard. Officer Caufield testified that, at that time, the doctor would not conclusively state whether the child's death resulted from accidental or intentional injuries.

After both sides had rested, appellant made an oral motion to reopen the evidence; she requested permission to recall Officer Caufield to question him about a conversation that he had with Dr. Barnard on February 7, 1990, and that was reflected in the officer's notes. The State did not object to the motion but made it known that it would object on hearsay grounds if appellant attempted to introduce the substance of the conversation rather than merely the fact that the conversation occurred. After questioning by the trial judge, appellant did not provide a legal exception to the hearsay rule for the proffered testimony.

The trial court then attempted to elicit from appellant her basis for the admission of the further testimony. Both the court and the State challenged the actual impeachment value of the proffered testimony. Appellant could not convince the court that a conflict between the proffered testimony of Officer Caufield and the previous testimony of Dr. Barnard existed; therefore, the district court denied the motion to reopen the evidence.

Appellant then made the following bill of exception:

I anticipate if Officer Caufield were called to testify, I would ask him did he talk to Dr. Barnard, does he recall if he talked to Dr. Barnard on two-seven-ninety, and that his response would be yes.

That his notes indicated that.

. . . .

I would ask Caufield did he also advise you that he could not say that the deceased had not received the head injury in a fall; however, there should have been obvious symptoms from the injury, that Officer Caufield would say his notes so reflect.

Appellant maintains that testimony elicited from Dr. Barnard on cross-examination may have given the jury the impression that the February 7th conversation between Dr. Barnard and Officer Caufield never took place. Appellant argues that she should have been allowed "to recall Officer Caufield to establish both that such a conversation had taken place and that Dr. Barnard as late as February 7th could not exclude the possibility that the deceased had received the head injury in a fall."

In a single point of error, appellant contends that the district court erred in refusing to allow appellant to reopen the testimony and recall Officer Caufield to testify that he had a conversation with Dr. Barnard on February 7, 1990. ⁽²⁾ Appellant contends this proffered testimony would establish that the February 7th conversation took place and that, over two months after the child's death, Dr. Barnard could not rule out the possibility that the child had received the head injury in a fall.

Preservation of Error

As a preliminary matter, the State maintains that appellant's point of error was not preserved for review because the basis for appellant's complaint on appeal is different from the basis of her objection at trial. See DeBlanc v. State, 799 S.W.2d 701, 718 (Tex. Crim. App.), cert. denied, 111 S. Ct. 2912 (1990); Tex. R. App. P. 52(a). Specifically, the State contends that appellant's argument on appeal is that testimony that the conversation took place and about its details was admissible to impeach Dr. Barnard even if the doctor had testified that he did not recall the conversation; the State argues that appellant never presented this argument to the trial court.

During the discussion relating to the motion to reopen testimony, the State did not object to the reopening in general, but did voice its objection to the testimony on the ground of hearsay. Appellant responded that she intended to use the testimony for the purpose of impeaching Dr. Barnard with a prior inconsistent statement. The Court then questioned appellant as to whether the proffered testimony would conflict with the previous testimony of Dr. Barnard and thus would constitute an inconsistent statement. Appellant responded:

As I recall the testimony, it was different, that he [Dr. Barnard] qualified it and he denied, I don't know if denied is the proper word, -- he said something like I don't know what Caufield's notes said. I don't think he ever agreed with the last paragraph, which was what he was questioned on specifically.

Both parties eventually agreed that their recollection of Dr. Barnard's testimony was that the doctor did not recall having a conversation with Officer Caufield on the date in question and did not recall the substance of the conversation. Because appellant, at the time of trial, could not demonstrate to the court how the proffered testimony could impeach Dr. Barnard, the district court denied the motion to reopen the evidence.

A witness may be impeached by proof of a prior inconsistent statement; the statement may be oral or written and may be given under oath or not. Miranda v. State, 813 S.W.2d 724, 735 (Tex. App.--San Antonio 1991, pet. ref'd). Rule 612(a) of the Texas Rules of Criminal Evidence, which governs the admission of prior inconsistent statements, provides:

Examining witness concerning prior inconsistent statement. In examining a witness concerning a prior inconsistent statement made by him, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to him at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).

A statement admitted under Rule 612 may be used only for impeachment purposes and not for substantive reasons. Miranda, 813 S.W.2d at 735.

This appeal concerns whether evidence of a prior conversation is inconsistent, for the purposes of Rule 612, when the witness does not recall the conversation. Both parties agree that no Texas court has determined this issue.

Appellant directs our attention to a federal case which concerns Rule 612's federal counterpart, Federal Rule of Evidence 613. In United States v. Causey, 834 F.2d 1277 (6th Cir. 1987), cert. denied, 486 U.S. 1034 (1988), the government had called a witness to rebut the testimony of a defense alibi. The witness claimed not to recall a conversation she had with an F.B.I. agent. The government then called the agent to testify about the conversation. Rejecting the defendant's allegation that the testimony by the agent about the conversation was not technically inconsistent with the witness's statement that she did not recall the conversation, the court held that the trial court did not err in allowing the agent to testify about the conversation.

Integral to the court's decision in Causey, we believe, is the court's conclusion that "[a] 'trial judge has considerable discretion in determining whether testimony is "inconsistent" with prior statement[s]' . . . and inconsistencies can be found in changes in positions implied through silence or a claimed inability to recall." Id. at 1283. (citations omitted). In addition, the trial court's determination whether to admit or exclude evidence is reviewed by the abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 378-80 (Tex. Crim. App. 1990).

Based upon the evidence presented during trial, we conclude that the trial judge was in the best position to properly assess the impeachment value of the proffered testimony, and we conclude that the trial court did not abuse its discretion in refusing to reopen the evidence to allow Officer Caufield to testify.

Even assuming that the trial court's decision was erroneous, we conclude that appellant cannot show harm. To show reversible error in the admission or exclusion of evidence, in addition to an error in the trial court's ruling, appellant must show that such admission or exclusion was harmful. Tex. R. App. P. 81(b)(2).

In determining whether error is harmless under Rule 81(b)(2), we are to focus not on the propriety of the outcome of the case, but we are instead concerned with the integrity of the process leading to the conviction. Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989); Tex. R. App. P. 81(b)(2). Factors that should be considered include: (1) the source of the error; (2) the nature of the error; (3) whether or to what extent it was emphasized by the State; (4) the error's probable collateral implications; (5) how much weight a juror would probably place on the error; and (6) whether declaring the error harmless would encourage the State to repeat it with impunity. Harris, 790 S.W.2d at 587.

Procedurally, we must first isolate the error and all its effects, using the considerations set out above and any other considerations suggested by the facts of the cause, and second ask whether a rational trier of fact might have reached a different result if the error and its effects had not occurred. Harris, 790 S.W.2d at 587-88. We do not focus on the weight of the other evidence of appellant's guilt, but instead focus on whether the error might have prejudiced the jurors' decision-making. In other words, our responsibility is to determine whether the trial was an essentially fair one. Id.

We note that Officer Caufield testified that Dr. Barnard had previously told him that the death could have been accidental. Thus, the general substance of the proffered impeachment testimony was admitted in evidence. Additionally, the proffered testimony merely supplemented Dr. Barnard's inability to recall a specific conversation. Had the evidence been admitted, its sole use would have been to impeach an otherwise inconclusive statement. We hold that, even if the trial court erred in excluding the evidence, the decision-making process of the fact-finder was not prejudiced. Accordingly, we overrule appellant's sole point of error.

Finding no error, we affirm the conviction.

Mack Kidd, Justice

[Before Justices Powers, Kidd and B. A. Smith]

Affirmed

Filed: May 26, 1993

[Do Not Publish]

1.   A deceleration injury is one that occurs when a moving body comes to an abrupt halt, as when a body is thrown against the windshield during an automobile accident.

2.   In her point of error, appellant refers to the date of the alleged conversation as February 7, 1989. We will assume for purposes of this appeal that the correct date of the alleged conversation is February 7, 1990.