Hammons, Duane

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0307-07

DUANE HAMMONS, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

BEXAR COUNTY

Cochran, J., delivered the opinion of the unanimous Court.

O P I N I O N

Appellant was charged with sexual assault and indecency with a child for having

consensual sexual relations with Nailah, a minor. Appellant did not deny having such a

relationship, but his defense was that Nailah was at least seventeen years old at the time. The

trial court admitted, over appellant's objection, several out-of-court statements made by Nailah

to two different witnesses as prior consistent statements under Tex. R. Evid. 801(e)(1)(B).

After appellant was convicted, he appealed and claimed that the trial court erred in admitting

these statements. The court of appeals agreed. (1) We granted review to clarify that, under Rule

803(e)(1)(B), a charge of recent fabrication or improper motive may be subtly implied through

tone, tenor, and demeanor during the entirety of the cross-examination; such an attack may not

be immediately apparent from the specific wording of the questions asked, but becomes

obvious only during the attorney's final argument. (2)

We hold that the trial court did not abuse its discretion in admitting the evidence as a prior

consistent statement.

I.

Nailah, who was twenty-seven at the time of trial, testified that she was born on October

12, 1977. When she was twelve and in middle school, she joined the adult choir at her church.

Her grandfather was an elder in that church and her grandmother was a district missionary. Tina

Hammons, who was related to Nailah's family, was the state choir director. Nailah met

appellant, Tina's husband, through her choir activities. Appellant, who was in his late 20's or

early 30's at the time, became her counselor. He counseled her by phone.

Nailah testified that she was almost fifteen when she started high school at Business

Careers High School, a magnet school for the gifted. She talked with appellant every week or

two on the phone for five to fifteen minutes, but shortly after starting high school, he would

call more frequently. Nailah was self-conscious because she was "hairy," but appellant said

"not to worry, that later on in life, [she] would find out that that was sexy and that a lot of men

liked that." Nailah testified that appellant would tell her things like "how pretty I was and how

smart I was and how special I was. How special I was to him."

Appellant told Nailah that he wanted to pick her up at school and take her out to lunch

to celebrate her 15 th birthday in October of her freshman year. She signed out from school for

a dentist appointment and was supposed to meet him in the school parking lot, but she did not

go. She stayed inside with her best friend, Yvonne Sanders, who was a sophomore. She told

Yvonne that she was supposed to go out for lunch with her counselor, but she didn't feel "good"

about it, so she did not want to go. The two girls just stood and looked at appellant sitting in

his car in the parking lot. She had told Yvonne bits and pieces about her relationship with

appellant, but "I didn't give her intimate details because I didn't have any friends so I didn't

know, really, if I could tell anybody. So I just kind of told her that there was an older man I

thought liked me."

Appellant made arrangements to see her again about a week later. This time Nailah went

out for lunch with him. They went to the Hampton Inn on I-35. Appellant said that he had

gotten a room there for an earlier business meeting and to take a shower and freshen up. She

wanted to stay in the car, but appellant talked her into going to the motel room with him. He

went into the bathroom and then came back out clad only in a towel and asked Nailah to give

him a massage with lotion. She did. Things progressed, and eventually he penetrated her, first

with his finger, then with his penis. It hurt, and she tried to resist. Then they each took a

shower, and he drove her back to school.

Appellant called Nailah about a month or two later and asked her to go out for lunch

again. This time they went to the Scotsman's Inn on I-35, and appellant repeated his prior

conduct. Nailah hadn't told anybody because, she said, "I was scared. I was ashamed. I was

confused." According to Nailah, their third act of intercourse took place at a Motel 6 in early

1993, while Nailah was still a freshman in high school. This time appellant's car wouldn't start

when they were ready to leave; appellant was "panicky," and Nailah "freaked" out. He called

a cab for her to get back to school.

The only person that Nailah told about these sexual interludes was Yvonne. She told

Yvonne the details when the girls had a "sleep-over" at Nailah's house sometime after

Christmas during Nailah's freshman year. The next fall, right after her 16 th birthday, Nailah

transferred to Judson High School because her mother became pregnant and did not want

Nailah going to school so far away. Yvonne was still at Business Careers.

The fourth time appellant picked her up at school, this time from Judson High School,

he took her to a "really nasty" motel, and she refused to get out of the car. The fifth time, they

went to the Ruby Inn, and Nailah told appellant that she had a boyfriend. Appellant was a little

upset and told her, "I'm the only person that loves you and so you better not be having sex with

anyone else." They had their usual sexual activity, but appellant was rough and angry, "real

rude, real obnoxious." This was their last encounter.

Nailah eventually told her mother about the liaison with appellant in mid-1997, when

she was nineteen. There was a meeting with Nailah, her mother and father, her grandparents,

appellant and his wife. Nailah told everyone that it started when she was a freshman at Business

Careers High School. Appellant said it was true, and he cried. Nailah and her family decided

to have another meeting with appellant and his wife, which was held at the church with Bishop

Iglehart and several elders in attendance. Appellant again admitted the sexual affair; he

apologized to his wife and the bishop. The elders told Nailah that the church would handle the

matter, so neither she nor her family reported it to the police.

Around 2002, Nailah received a bag of clothes containing a T-shirt that had appellant's

name on it as the vice-president of the youth department. Nailah then realized that appellant

was still pastoring children, so she filed a police report. She also filed a civil lawsuit against

the church and appellant, but it was dismissed shortly before the criminal trial because the

statute of limitations had run.

Appellant's attorney cross-examined Nailah vigorously concerning her memory of

dates, the specific motels she and appellant had gone to at which times, and her age during

which year of high school. Both became confused. Appellant's attorney also cross-examined

Nailah about how she had given different dates during her deposition in the civil lawsuit.

Nailah said that she was incorrect in her former testimony because her lawyer had suggested

those dates and he was wrong.

Bishop Iglehart testified next and stated that he had received a letter from Nailah in

1997, so "[w]e did a preliminary investigation, we ascertained that the facts were reasonably

sure and correct, and then we began to set up a deliberation." The elders convened a meeting

in January or February of 1998. Bishop Iglehart questioned Nailah about the allegations she

had made in her letter and she provided detailed and explicit information. The trial prosecutor

then asked Bishop Iglehart the following question:

Prosecutor: All right. And was it made clear to you during that time what her age was during

the time -- during the time that she says she was having sex -- or Duane

Hammons was having sex with her?

Defense: I'll object to that as calling for hearsay.

Prosecutor: Judge, at this time we'd ask that it be allowed as a prior consistent statement.

The defense has clearly questioned the credibility of Nailah and has suggested

that she is confused about her age. This comes in as nonhearsay under 801 and

[a] prior consistent statement by the witness.

Defense: I don't think she laid the predicate for that, Judge.

Prosecutor: The only predicate is that he did the initial questioning.

Court: Okay. I'll overrule the objection. You can answer.

The prosecutor continued her questioning:

Q: The question was, when Nailah spoke to you-all at the meeting, was she clear

about her age when [appellant] started having sex with her?

A: She was clear.

Q: Okay. And was she at that -- when she talked to you about that, was it clear to you

whether she was over 17 or under 17?

A: At the time we had that meeting, the only reason we were there was because she

was under 17 at that time.

[Defense objection to hearsay. The trial court overruled the objection, but allowed a running

objection.]

Q: All right. Bishop, you said that if she had been over 17 there wouldn't have been

a reason to have a meeting. Why do you say that?

A: Because that [sic] if she had been considered an adult, there would have been

nothing that we would have been able to do about it.

According to Bishop Iglehart, appellant "confessed that he did it."

Yvonne also testified and confirmed that she and Nailah had been best friends when

Nailah was a freshman at Business Careers. Nailah always dressed like she was going to church

and did not have many friends. In fact, Yvonne was her only friend. The prosecutor then asked

Yvonne if Nailah had spoken to her about an older man. Yvonne said, "Yes, she did." The

prosecutor continued, "[C]an you tell me what [Nailah] would tell you in the beginning about

this older man?" Appellant's attorney objected on the basis of hearsay. The prosecutor

responded,

Judge, under 801 he has questioned this victim's credibility on several issues,

and that is a prior consistent statement; therefore, not hearsay. We would ask

that the Court admit it.

The trial court overruled the objection, and Yvonne said that Nailah told her "bits and pieces"

about her relationship with an older man in her church all throughout her freshman year, though

she never mentioned the man's name. After appellant made a running objection to hearsay,

Yvonne elaborated on Nailah's disclosures to her. She said that one rainy day in October,

Nailah was outside in the little lunch area circle, looking like she wanted to cry. Yvonne asked

her what the matter was, and Nailah told her that "he" was coming to get her. "And I was like,

Who's coming to get you? And she was like, The guy that I was telling you about. . . . But I

don't want to go." Yvonne remembered the two of them looking across the parking lot where

a dark car was parked. Yvonne didn't see the man, but she told Nailah that she didn't have to

go if she didn't want to. Yvonne didn't remember exactly what happened after that, but she did

know that Nailah didn't go with the man.

Yvonne testified that she found out more about the man when she spent the night at

Nailah's home some time after Christmas break. Nailah told her "detail, point-to-point things."

I know she told me that they had been having sex and [she] had told him she

didn't like it, that she didn't want to do it, and she had told him that she wanted

him to leave her alone. And he wouldn't leave her alone. And she couldn't tell

anybody because it would get the church in trouble, her parents, her

grandparents- you know, it would hurt everybody[.]

Nailah said that these encounters were in a "hotel, motel, whatever." Yvonne testified that

Nailah transferred out of Business Careers shortly after the beginning of her sophomore year.

Yvonne also transferred to a different high school later that year, but the two have remained

friends over the years. She said that she had not heard about this case until the defense

investigator called her.

The defense then presented evidence that the Hampton Inn on I-35-where Nailah

testified that she and appellant had their first sexual encounter-had not been built or open for

business until May, 1995. Nailah would have been seventeen years old at that time.

Appellant's closing argument included the following:

[Nailah] tried to list these dates, but her dates didn't coincide with the dates she

gave in her prior statements, which were given just four months ago in this

deposition, that I cross-examined her from. You remember that. How could

you forget it. How could you forget her testimony. How could you forget her

talking about, "My lawyer gave me these dates." That's manufacturing evidence.

That's conspiring to manufacture evidence in the courtroom. That's a criminal

charge, that's a criminal offense. I'm incensed by that. I can't believe she

testified to that up here in front of you.

The defense emphasized that Nailah testified that the first encounter-in 1992-was in the

Hampton Inn, but that the motel was not built until 1995. That meant

that it couldn't have happened like that, like she said, at the time she said, and by

her own testimony she made up dates with her lawyer.

This is one of those-remember, I talked to you about the preponderance

of the evidence, but these are the guys that- you know, the rich lawyers that sue

people and raise your insurance rates. Remember, we talked about that? Well,

that's one of these guys who sued my client. It didn't work because it's no good.

The evidence is no good in this case. This case was thrown out, the civil case.

And now she's angry because she didn't get any money. And this is now about

a criminal case. That's getting revenge.

When the defense attorney discussed Yvonne's testimony, he noted that she and Nailah

were still best friends and still talked together.

Well, if they talked, what do you think the biggest thing going on in [Nailah's]

life was? This case coming up and her civil case, which was in January, that got

dismissed two or three weeks ago. So what did she- you know you've got to

stick with me on this, Yvonne. Come on, got to be with me. Think about it.

That's your reason. When you think about the credibility and about why a person

might testify one way or the other, think about those things.

Concerning Bishop Iglehart's testimony, the defense stated the following:

So what did they prove? It's not relevant what the bishop heard from her,

because the testimony comes from her. And you got to believe her testimony

to believe she was a minor. And to believe that, you got to believe she wasn't

lying in this deposition; she wasn't lying in the police statement, where she gave

another date, when she gave these other dates; and then when she finally said, We

made them up, we made up these dates so we could get some money.

The jury found appellant guilty and sentenced him to ten years' imprisonment and a

$10,000 fine, but they recommended community supervision.

On appeal, appellant claimed, inter alia , that the trial court erred in overruling his

hearsay objections to Bishop Iglehart's and Yvonne's testimony about Nailah's out-of-court

statements to them. (3) The court of appeals stated that, although hearsay is generally not

admissible, a prior consistent statement is not hearsay if it is "consistent with the declarant's

testimony and is offered to rebut an express or implied charge against the declarant of recent

fabrication or improper influence or motive." (4) The court of appeals held that a proper

predicate must be laid that "illustrates a charge of fabrication has been made." (5) Then, "the prior

consistent statement must have been made at a time before the declarant had a motive to testify

falsely." (6) The court of appeals stated that merely questioning "a witness's recollection of

events or dates through rigorous cross-examination does not equate to a charge of fabrication.

To hold otherwise subjects all defendants who challenge the memory of prosecution witnesses

to the improper admission of prior consistent statements." (7) The court of appeals rejected the

State's argument that appellant's cross-examination (8) suggested both recent fabrication and

improper influence or motive, and held that the trial court erred in admitting Bishop Iglehart's

and Yvonne's hearsay testimony. Finding that error harmful, the court of appeals reversed

appellant's conviction and remanded the case for a new trial. (9)

II.

Rule 801(e)(1)(B) gives substantive, non-hearsay status to prior consistent statements

of a witness "offered to rebut an express or implied charge against the declarant of recent

fabrication or improper influence or motive." (10) We have previously stated that our rule

mirrors that of Federal Rule 801(d)(1)(B) and thus federal decisions provide helpful analysis. (11)

The Supreme Court has explained the four requirements that must be met for prior consistent

statements to be admissible under Federal Rule 801(d)(1)(B) :

(1) the declarant must testify at trial and be subject to cross-examination;

(2) there must be an express or implied charge of recent fabrication or improper

influence or motive of the declarant's testimony by the opponent;

(3) the proponent must offer a prior statement that is consistent with the declarant's

challenged in-court testimony; and,

(4) the prior consistent statement must be made prior to the time that the supposed

motive to falsify arose. (12)

The rule sets forth a minimal foundation requirement of an implied or express charge of

fabrication or improper motive. (13) It is minimal. Dean McCormick has noted that even an

attack upon the accuracy of the witness's memory might suffice to permit the introduction of

a prior consistent statement. (14) In any event, "there need be only a suggestion that the witness

consciously altered his testimony in order to permit the use of earlier statements that are

generally consistent with the testimony at trial." (15) The fact that "there need be only a

suggestion" of conscious alteration or fabrication gives the trial court substantial discretion

to admit prior consistent statements under the rule. (16) However, the rule cannot be construed

to permit the admission of what would otherwise be hearsay any time a witness's credibility

or memory is challenged. (17) Were that true, mere cross-examination would always turn the

prior consistent statement into non-hearsay. (18) There is no bright line between a general

challenge to memory or credibility and a suggestion of conscious fabrication, but the trial

court should determine whether the cross-examiner's questions or the tenor of that

questioning would reasonably imply an intent by the witness to fabricate. (19)

Furthermore, the fact that the State might "bring out its own uglies" on direct

examination in anticipation of an attack on a witness's credibility does not preclude the

introduction of a witness's prior consistent statement as rebuttal evidence after a witness has,

in fact, been impeached on cross-examination with an express or implied accusation of recent

fabrication. (20)

As with most evidentiary rulings, a trial court's determination that a prior consistent

statement is admissible because the cross-examination suggested or implied an assertion of

recent fabrication or improper motive is reviewed only for an abuse of discretion. (21)

III.

In the present case, appellant argues that "no fair reading of this record. . . supports the

state's assertion that the defense made any" charge of recent fabrication of improper motive.

According to appellant, the State relied upon a single cross-examination question by defense

counsel ("Your lawyer tell you that you knew that?" referring to the date of her first sexual

encounter with appellant as a time before her seventeenth birthday) as raising a charge of

recent fabrication. But, as the State explained,

This question made clear what had already [been] implied by defense counsel's

earlier questions-that [Nailah's] lawyer had given her the dates to establish that

she was underage at the time of the incidents and that she was lying when she

testified that she was underage to make her case in the civil suit. (22)

Appellant argues that he was merely bringing out Nailah's inconsistency on dates. "The state

is simply wrong when it accuses the defense of making it 'clear' that the complainant had been

improperly influenced or motivated by her civil lawyer." (23) Appellant asserts that "the prior

consistent statement rule did not apply because the defense did not charge the complainant

with improper fabrication, motive, or influence." (24)

But appellant's assertion that he did not imply that Nailah fabricated her testimony is

refuted by his own closing argument in which he expressly accused Nailah of "manufacturing"

evidence with her civil attorney, noted that it is a criminal charge to manufacture evidence, and

stated that the civil case was "thrown out," and "now she's angry because she didn't get any

money. And this is now about a criminal case. That's getting revenge." He concluded with the

assertion that Nailah "made up" the dates so she "could get some money." It is crystal clear

that appellant's position, at the time of final argument, was that Nailah had unsuccessfully

conspired with her civil attorney to fabricate dates that would support her civil lawsuit, and,

having lost that lawsuit, she would wreak revenge at this criminal trial by fabricating even more

different dates than the ones to which she had testified during her civil deposition. (25)

The court of appeals "conclude[d] the State failed to lay 'a proper predicate . . . that

illustrates a charge of fabrication has been made.'" (26) The court of appeals is correct that the

State's explanation to the trial judge of precisely how the defense had implied that Nailah was

fabricating portions her testimony was cryptic at best. However, the State cannot lay a proper

predicate for the admission of a prior consistent statement. That predicate is laid by the

content, tone, and tenor of defense cross-examination. It either does or does not "open the

door" to the admissibility of a prior consistent statement by an express or implied suggestion

that the witness is fabricating her testimony in some relevant respect. In deciding that

question, the trial court must consider the totality of the cross-examination, not isolated

portions or selected questions and answers.

The specific words that appellant used during cross-examination might be interpreted

as either a benign inquiry into Nailah's confusion over the dates and locations where the sexual

encounters took place or as an implied charge of recent fabrication. But much of the force of

cross-examination depends upon the tone and tenor of the questioning, combined with the

cross-examiner's demeanor, facial expressions, pregnant pauses, and other nonverbal cues. (27)

In this case, the State responded to appellant's hearsay objections with the assertion that

"[t]he defense has clearly questioned the credibility of Nailah and has suggested that she is

confused about her age. This comes in as nonhearsay under 801 and [a] prior consistent

statement by the witness." Although the State's response was certainly cryptic, the trial judge

clearly understood its position, and he, assessing not only the words spoken on cross-examination, but its tone, tenor, and nonverbal cues, agreed. Although the questioning was

subtle, the trial judge did not abuse his discretion in concluding that appellant was making an

implied charge of fabrication during his cross-examination. (28) That subtly implied charge

became vociferously express during appellant's closing argument. At that point, the "sinister

seed of innuendo" sowed during cross-examination came to full fruition. (29)

Thus, we note that a reviewing court, in assessing whether the cross-examination of a

witness makes an implied charge of recent fabrication or improper motive, should focus on

the "purpose of the impeaching party, the surrounding circumstances, and the interpretation put

on them by the [trial] court." (30) Courts may also consider clues from the voir dire, opening

statements, and closing arguments. From the totality of the questioning, giving deference to

the trial judge's assessment of tone, tenor, and demeanor, could a reasonable trial judge

conclude that the cross-examiner is mounting a charge of recent fabrication or improper

motive? (31) If so, the trial judge does not abuse his discretion in admitting a prior consistent

statement that was made before any such motive to fabricate arose. (32)

We therefore hold that the trial court did not abuse its discretion in admitting Nailah's

prior consistent statements to Bishop Iglehart and Yvonne. The judgment of the court of

appeals is reversed, and the case remanded for the court of appeals to address appellant's

remaining claims.

Delivered: November 14, 2007

Publish

1.

Hammons v. State , 221 S.W.3d 720, 725 (Tex. App.-San Antonio 2007).

2. The State's two grounds for review ask,

1. Whether the court of appeals erred in concluding that the defense's cross-examination of the

complainant regarding inconsistencies between her prior testimony given during a civil

deposition based on the conduct and her testimony at trial in the criminal case was insufficient to

constitute an implied charge of recent fabrication or improper influence or motive under Rule

801(e)(1)(B).

2. Whether the court of appeals erred in concluding that the admission of the complainant's

statement from other witnesses was harmful when the same evidence was admitted through the

testimony of the complainant without objection.

Because we resolve the first ground for review in favor of the trial court's ruling, we need not address

the second ground.

3.

Hammons v. State , 221 S.W.3d 720, 723 (Tex. App.-San Antonio 2007).

4.

Id. at 724 (quoting Tex. R. Evid. 801(e)(1)(B)).

5.

Id.

6.

Id.

7.

Id.

8. The State pointed to the following cross-examination of Nailah as one example of appellant's

suggestion of recent fabrication:

Q: Well the dates mix you up, don't they?

A: I know the place and I know the age I was. And I was underage.

Q: You know that, right? Your lawyer tell you that you knew that? [Emphasis added.]

A: No, he didn't have to tell me that.

9.

Hammons, 221 S.W.3d at 727 .

10. Tex. R. Evid. 801(e)(1)(B).

11.

Campbell v. State , 718 S.W.2d 712, 716-17 (Tex. Crim. App. 1986) ("When the new

Rules of Criminal Evidence were promulgated, a decision was made to adopt the wording of Fed. Rule

801(d)(1)(B), supra, for Tex. R. Cr. Evid. 801(e)(1)(B), supra. The intent was to adopt not only the

wording of the Federal Rule but its interpretation as well.").

12.

See Tome v. United States , 513 U.S. 150, 156-58 (1995) .

13.

See Michael H. Graham, Prior Consistent Statements : Rule 801(d)(1)(B) of the Federal

Rules of Evidence, Critique and Proposal , 30 Hastings L.J. 575 , 607 (1979) (suggesting that the

question, "Didn't you talk with plaintiff's counsel shortly before testifying here today?" is sufficient to

raise an implied charge of fabrication); see also United States v. Hamilton , 689 F.2d 1262, 1273 (6 th

Cir. 1982) (noting that defense counsel's attack on a witness need not have been intended to imply

recent fabrication as long as the jury might infer the charge from the manner of questioning); United

States v. Baron , 602 F.2d 1248, 1253 (7th Cir. 1979) ("The fact that defense counsel may not have

intended to imply that [witness's] story was fabricated is irrelevant if that inference fairly arises from the

line of questioning he pursued.").

14. 1 Charles T. McCormick, McCormick on Evidence § 47, at 178 n.18 (John W. Strong

ed., 4th ed. 1992) ("If the witness's accuracy of memory is challenged, it is arguable that a consistent

statement made shortly after the event and before he had time to forget, could be received in

support.").

15.

United States v. Casoni , 950 F.2d 893, 904 (3d Cir. 1991) ; see McInnes v. Yamaha

Motor Corp., U.S.A. , 673 S.W.2d 185, 189 (Tex. 1984) (defense had, during voir dire, opening

statement, and cross-examination "insinuated" that witness had recently fabricated his testimony that the

"wobble" or "shimmy" of his motorcycle had caused the accident); Dowthitt v. State , 931 S.W.2d

244, 264 (Tex. Crim. App. 1996) (cross-examination of accomplice witness "raised an implied charge

that [witness] fabricated his testimony specifically because of the plea bargain"); Moody v. State , 827

S.W.2d 875, 893 (Tex. Crim. App. 1992) (prior consistent statement was admissible to rebut implied

charge of recent fabrication when defense cross-examination suggested that sexual assault victim's

mother "was getting her to make the allegation" and that child had not informed mother of the alleged

assault for a long time); Wisdom v. State , 143 S.W.3d 276, 281 (Tex. App.-Waco 2004, no pet.)

(when cross-examination "raised an inference of recent fabrication" or that the prosecutor, child

witness's mother or shooting victim had improperly influenced child's testimony, trial court properly

admitted prior consistent statement).

16.

See United States v. Frazier , 469 F.3d 85, 88 (3d Cir. 2004), cert. denied , 127 S.Ct.

1925 (2007); Lawton v. State , 913 S.W.2d 542, 561 (Tex. Crim. App. 1995) (prior consistent

statement was admissible because defense counsel questioned witness during cross-examination about

the preparations he and the district attorney had undertaken for his trial testimony; defense "never flatly

accused [witness] of fabricating his testimony with the State's assistance, but it was clearly implied that

[witness's] testimony was influenced by the district attorney's tutelage."); see also State v. Johnson ,

370 N.W.2d 136, 141 (Neb. 1985) (upholding admission of prior consistent statement because

"defense counsel had sown the sinister seed of innuendo" that testimony had been fabricated). In

Johnson , the court stated:

If an attack on a witness' credibility through use of an inconsistent statement is

accompanied by, or interpretable as , a charge of a plan or contrivance to give false

testimony, proof of a prior consistent statement before the plan or contrivance was

formed tends "strongly to disprove that the testimony was the result of contrivance. . . .

It is for the judge to decide whether the impeachment amounts to a charge of

contrivance, and ordinarily this is the most obvious implication."

Id. at 142 (emphasis added) (citing McCormick on Evidence § 49 at 119-20 (E. Cleary 3d ed.

1984)).

17.

Tome, 513 U.S. at 157-58 ("Prior consistent statements may not be admitted to counter all

forms of impeachment or to bolster the witness merely because she has been discredited. . . . The Rule

speaks of a party rebutting an alleged motive, not bolstering the veracity of the story told."); United

States v. Bishop , 264 F.3d 535, 548 (5th Cir. 2001) .

18.

Bishop , 264 F.3d at 548 .

19. See United States v. Ruiz

, 249 F.3d 643, 648 (7th Cir. 2001) (cross-examination raised

implication that officer's testimony as to what he saw defendant do on the night of his arrest was

"fictional" by pointing out that officer had not noted in his incident report some of the observations to

which he testified); United States v. Lozada-Rivera , 177 F.3d 98, 104 (1st Cir. 1999) (stating that "a

charge of improper motive or recent fabrication need not be expressly made or buttressed by concrete

evidence. But the proponent of evidence must point to specific questions during his adversary's

examination that suggest recent fabrication or bias. Merely appealing to credibility as a live issue will

not do the trick."); United States v. Street , 66 F.3d 969, 977 (8th Cir. 1995) (trial court properly

admitted prior consistent statement under rule; noting that, on cross examination, defendant brought out

that, in his grand-jury testimony, witness had not stated that defendant had made obscene statements,

and concluded this line of questioning by asking, "And so your feeling today, and your memory today,

is better than when you testified in front of the grand jury two weeks after this incident happened?"

When the witness replied that, after reviewing a written report he prepared shortly after the incident and

before his grand-jury testimony, it was more complete, defense asked whether witness had

"exaggerated on other statements as well?" This amounted to a suggestion of recent fabrication); Wylie

v. State , 908 S.W.2d 307, 310 (Tex. App.-San Antonio 1995, pet. ref'd) (videotaped interview of

child victim was admissible as a prior consistent statement when "defense counsel presented intense and

very capable cross examination of the complainant and other witnesses, raising doubts as to fabrication

and improper influence upon the complainant.").

20. Bolden v. State , 967 S.W.2d 895, 898-99 (Tex. App.-Fort Worth 1998, pet. ref'd)

(witness's prior consistent statement was properly admitted after defendant's counsel implied on cross-examination that the witness's motive for testifying was a promise for assistance with the parole board;

"The fact that the State framed its direct of [witness] to defuse appellant's anticipated attempt to

impugn [witness's] motives did not deprive the State of the right to rehabilitate [witness] with the prior

consistent statement."); see United States v. Montague , 958 F.2d 1094, 1096 (D.C. Cir. 1992)

;

United States v. Brennan , 798 F.2d 581, 588 (2d Cir. 1986) (government's "'impeachment' of its

own witness" does not prevent it from responding to defendant's impeachment of the same witness);

United States v. Allen , 579 F.2d 531, 532-33 (9th Cir. 1978) (government may rebut charge of

recent fabrication even where such charge is suggested by the government's evidence, so long as the

government's evidence is not introduced merely to enable the bolstering of its case with prior consistent

statement). In Montague , the court stated that the defendant argued that there was not a proper

foundation to admit the prior consistent statement:

He asserts that there was no express or implied charge of recent fabrication, or

improper influence or motive to be rebutted. The government rightly counters that

defendant's trial counsel, during her cross examination of [the witness], questioned him

concerning his guilty plea and his hope for leniency. We agree with the trial judge that

this constitutes at the very least an "implied charge . . . of . . . improper . . . motive," as

required by Rule 801(d)(1)(B) . The record bolsters our confidence in this conclusion

by disclosing that the United States offered to withhold tender of the prior statement if

the trial counsel would agree not to argue in closing to the jury that [the witness] hoped

by his testimony to influence the sentencing judge toward leniency. Trial counsel

declined the government's offer. The trial court admitted the statement. The defense did

use the argument of improper motive in closing.

958 F.2d at 1096 . Thus, the assertion, during closing argument, that the witness's testimony was

affected by an improper motive, may confirm the correctness of the trial court's decision to admit a

prior consistent statement.

21.

Lawton v. State , 913 S.W.2d at 561 (upholding admission of prior consistent statement

because "it is far from clear that the trial court abused its discretion."); Wisdom v. State , 143 S.W.3d

at 280-81 (stating that "we can discern no abuse of discretion in the court's decision to admit the prior

statement to rebut the inference of recent fabrication or improper influence."); Perez v. State , 994

S.W.2d 233, 236 (Tex. App.-Waco 1999, no pet.) ("We cannot say that the court abused its

discretion in admitting the prior [consistent] statements."); Campos v. State , 977 S.W.2d 458, 462

(Tex. App.-Waco 1998, no pet.) ("We do not find that the court abused its discretion in admitting the

[prior consistent] statement."); Bolden v. State , 967 S.W.2d 895, 898 (Tex. App.-Fort Worth, 1998,

pet. ref'd) ("The trial court's determination of the admissibility of evidence under Rule 801(e)(1)(B) is

reviewed under an abuse of discretion standard."); see also United States v. Lawson , 872 F.2d 179,

183 (6 th Cir. 1989); United States v. Zito , 467 F.2d 1401, 1404 (2d Cir. 1972) ("A trial judge

normally has great discretion in determining if a prior consistent statement is authorized to rebut a

defense charge of recent fabrication.").

22. State's Brief at 15.

23. Appellant's Reply Brief at 13.

24. Appellant's Reply Brief at 14.

25.

See, e.g, State v. Brotherton , 384 N.W.2d 375, 380 (Iowa 1986) ("Defendant's claim that

he was not making any charge of recent fabrication, improper motive or influence is not borne out by

our examination of the record."; noting that parts of the cross-examination of the child victim specifically

related to such matters as the mother prompting and preparing her for trial, her present memory, and

whether she made up the story elicited on direct examination); United States v. Zito, 467 F.2d 1401,

1404 (2d Cir. 1972) (review of defense opening statement and "persistent inquires" during cross-examination about witness's many prior crimes "suggested to the jury that [the witness] hoped for

clemency . . . and that his trial testimony was a fabrication as a reward for which he hoped to go

unwhipped of justice.") (quoting People v. Singer , 89 N.E.2d 710, 711 (N.Y. 1949)).

26.

Hammons , 221 S.W.3d at 725 (quoting Campbell v. State , 718 S.W.2d 712, 715, 717

(Tex. Crim. App. 1986)).

27.

See 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 406 at

183 (2d ed. 1994) (noting that sometimes the cross-examiner's attack openly suggests that the witness

"is bent on some purpose other than telling the truth," but stating that "sometimes the attacking party

leaves these points just below the surface, and relies instead on innuendo or the suggestive force of

questions or underlying facts to carry the message").

28.

See Lawton v. State , 913 S.W.2d 542, 561 (Tex. Crim. App. 1995); Wisdom v. State ,

143 S.W.3d 276, 281-82 (Tex. App.-Waco 2004, no pet.).

29.

Johnson v. State , 370 N.W.2d 136, 141 (Neb. 1985).

30. Mueller & Kirkpatrick, Federal Evidence § 406 at 187.

31.

See United States v. Feldman , 711 F.2d 758, 766 (7 th Cir. 1983) (reviewing court looked

to defense opening argument, to content of cross-examination, to trial court's repeated questioning of

defense counsel concerning his purpose in cross-examination inquiries, to the fact that defense counsel

declined to agree that he would not argue "fabrication" during his closing argument, and to the fact that

defense counsel did argue fabrication during his argument to hold that trial court properly admitted prior

consistent statement; "While the government was the first to broach the issue of the plea agreement, we

agree with the district court that [defendant's] use of the plea agreement was to impliedly charge that it

motivated [witness] to fabricate his trial testimony.").

32.

Lawton , 913 S.W.2d at 561 (upholding trial judge's admission of prior consistent statement

because "it is far from clear that the trial court abused its discretion"); see also Thomas v. United

States , 41 F.3d 1109, 1119-20 (7 th Cir. 1994) (when impeachment questioning is subject to either a

suggestion of fabrication or to an attack upon general credibility, trial judge does not abuse his

discretion in ruling on the admissibility of a prior consistent statement).

Appellant argues, in his Reply Brief that the "temporal requirement" of the rule also was not

met because Nailah had already repeated her story to several people before she told the elders at the

official church meeting and thus she had a motive to continue to repeat it for the sake of consistency.

This is not the motive to fabricate that he ascribed to Nailah at trial. At trial, appellant expressly argued

that Nailah fabricated the dates of their sexual encounters to wreak revenge for her recently dismissed

civil lawsuit. The civil lawsuit was, of course, dismissed years after she had made her out-of-court

statements to either Bishop Iglehart during the elders' meeting or to Yvonne during her freshman year in

high school.