“[T]estimony is not inadmissible on the sole ground that it is ‘prejudicial’ because in our adversarial system, much of a proponent’s evidence is legitimately intended to wound the opponent.”
How later courts described this case
- “[T]estimony is not inadmissible on the sole ground that it is ‘prejudicial’ because in our adversarial system, much of a proponent’s evidence is legitimately intended to wound the opponent.”
- “A complaint will not be preserved if the legal basis of the complaint raised on appeal varies from the complaint made at trial.”
- holding that even though State opened the door, trial court acted within its discretion to exclude rebuttal evidence under rule 403
- “If [defense] counsel were to have testified, the State would have been prejudiced not only by the undue weight jurors might attach to counsel’s testimony, but also by confusion”
Written by the judges who cited it.
The opinion
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00442-CR
KRISTI NEWBROUGH APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2012-2117-E
----------
MEMORANDUM OPINION1
----------
Appellant Kristi Newbrough appeals her conviction of possession of a
controlled substance by fraud under section 481.129 of the health and safety
code and sentence of five years’ confinement. See Tex. Health & Safety Code
Ann. § 481.129 (West Supp. 2014). In five issues, Newbrough argues (i) the trial
court abused its discretion in allowing evidence of additional prescriptions in her
1
See Tex. R. App. P. 47.4.
possession, (ii) the trial court abused its discretion in allowing testimony by the
arresting officer that she lived in a high crime area, (iii) the trial court erred in not
sua sponte granting immunity to a witness after that witness claimed her Fifth
Amendment privilege against self-incrimination, (iv) the trial court erred by not
allowing her attorney to testify to out-of-court statements made by a witness, and
(v) that she received ineffective assistance of counsel. We affirm.
I. Factual and Procedural Background
On June 15, 2012, Newbrough tendered a prescription to be filled at a
Kroger pharmacy located in Carrollton. The prescription bore the name of
Shanna Brooks and was for a large quantity of hydrocodone. Despite the fact
that Brooks had insurance on record with a Kroger pharmacy at a different
location, Newbrough declined to use it, choosing instead to pay the full cost for
the prescription.2 These facts, combined with the fact that he had never before
filled a prescription written by the prescribing doctor, whose office was located
15–20 miles away from the pharmacy, caused the pharmacist on duty, Hoa
Pham, to become suspicious.
Pham informed Newbrough that he would need to call the doctor’s office to
verify it. After faxing the prescription to the physician’s office, the office manager
confirmed that Brooks had never been a patient there, that the prescription did
not come from their office, that the paper size of the prescription—8 1/2” x 11”—
2
The prescription cost $60–80 without insurance.
2
did not match the size their office used, and that the signature on the prescription
did not resemble the doctor’s real signature. The doctor’s office requested that
Pham contact law enforcement. He did.
Officer Randall Zabojnik of the Carrollton Police Department was
dispatched to the pharmacy. Upon arrival, Officer Zabojnik took Pham’s
statement, reviewed the prescription, and then directed Pham to contact
Newbrough and inform her that the prescription was ready. Officer Zabojnik then
left the pharmacy but waited nearby. When Newbrough arrived at the pharmacy
to pick up the prescription, Officer Zabojnik returned and began questioning
Newbrough about it.
Newbrough told Officer Zabojnik that she was filling the prescription for
Brooks, her roommate, who had pinkeye and could not go out into the sunlight.
Newbrough told Officer Zabojnik that although she found it odd that the
prescription was on a full sheet of paper, she did not know that the prescription
was forged. After arresting Newbrough, Officer Zabojnik searched her person
and found Brooks’s identification card and prescription benefits card, as well as
three additional prescriptions3 in Brooks’s name that Newbrough had not
presented to Pham to be filled.
3
These three prescriptions were for Bactrim DS, Naprosyn, and
Clindamycin.
3
II. Evidentiary Issues
In her first and second issues, Newbrough complains that the trial court
abused its discretion in admitting (i) evidence of additional prescriptions in her
possession at the time she was arrested and (ii) testimony by Officer Zabojnik
that she was living in a high crime area at the time she committed the offense.
We review a trial court’s ruling on the admissibility of evidence for an
abuse of discretion. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App.
2005). A trial court abuses its discretion when its ruling is arbitrary or
unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A
trial court does not abuse its discretion if its decision is within “the zone of
reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim.
App. 2008). We will uphold the trial court’s ruling if there is any basis to sustain
it, even if it is not the basis upon which the trial court relied. Whitmire v. State,
183 S.W.3d 522, 529 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).
A. Admission of Additional Prescriptions
In her first issue, Newbrough argues the trial court abused its discretion by
admitting into evidence the additional prescriptions that were in her possession at
the time of her arrest because they were irrelevant and more prejudicial than
probative. See Tex. R. Evid. 401, 403.
Relevant evidence is that which has any tendency to make the existence
of any fact of consequence to the determination of the action more probable or
less probable. See Tex. R. Evid. 401, 403; Hawkins v. State, 871 S.W.2d 539,
4
541 (Tex. App.—Fort Worth 1994, no pet.) (citing Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1990)). Such evidence is presumed to be
more probative than prejudicial and should be excluded under rule 403 only if
there is a “clear disparity between the degree of prejudice of the offered evidence
and its probative value.” Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App.
2001). Unfair prejudice justifying exclusion means more than a tendency to
injure or prejudice a defendant, which of course is the point of introducing
evidence in the first place, but refers to an undue tendency to suggest a decision
on an improper basis. See Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim.
App. 1999); 1 Steven Goode et al., Texas Practice Series: Guide to the Texas
Rules of Evidence § 403.2 (3d ed. 2015). In making a rule 403 determination, a
trial court is to balance many factors, including the probative force of the
evidence, the State’s need for the evidence, any tendency to suggest a decision
on an improper basis or confuse the jury, and the likelihood that the presentation
of the evidence will consume an inordinate amount of time. See Gigliobianco v.
State, 210 S.W.3d 637, 641–42 & n.8 (Tex. Crim. App. 2006).
Newbrough’s defense centered on her claim that she was trying to do a
favor for a friend who had pinkeye by picking up her medication and that she did
not know that the hydrocodone prescription was forged. Newbrough complains
that the trial court’s admission of evidence of additional prescriptions in her
possession was “highly prejudicial” because it allowed the State to “insinuate that
[she] was walking around with a pocket full of prescriptions, selecting only to fill
5
the one for painkillers.” Newbrough is correct—this is exactly what the evidence
tended to prove, and such insinuation is precisely what made the evidence
relevant. Newbrough claims that she was tending to a sick friend’s needs, and,
yet, she chose to present only the painkiller prescription—not the antibiotic
prescriptions—to the pharmacy to be filled. Because evidence of Newbrough’s
failure to request the filling of these antibiotic prescriptions tended to make her
innocently-doing-a-favor-for-a-sick-friend argument less probable, this evidence
was relevant. See Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App.
2006).
This evidence was prejudicial, but not unfairly so. See Bay Area
Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007)
(“[T]estimony is not inadmissible on the sole ground that it is ‘prejudicial’ because
in our adversarial system, much of a proponent’s evidence is legitimately
intended to wound the opponent.”). Indeed, Newbrough points us to no potential
danger that the evidence could have been considered for an improper purpose or
mislead the jury, or that it caused undue delay or needlessly presented
cumulative evidence. See Tex. R. Evid. 403; see also Gigliobianco, 210 S.W.3d
at 641–42. Given Newbrough’s defense, the State’s need for this evidence to
show Newbrough’s knowledge that the hydrocodone prescription was forged
weighs in favor of admission of the prescriptions, and Newbrough fails to argue
any theory that would weigh against its admission. Therefore, the trial court did
6
not abuse its discretion by admitting the evidence, and we overrule Newbrough’s
first issue.
B. Hotel Testimony
In her second issue, Newbrough argues that the trial court abused its
discretion in admitting Officer Zabojnik’s testimony that Newbrough lived in a
hotel located in a high-crime area.4
During her cross-examination of Officer Zabojnik, Newbrough aggressively
questioned him about Newbrough’s expressed desire that they go back to her
hotel room to question Brooks about the prescription:
Q: Kristi adamantly tells you at this time the prescription is
not hers, they belong to Ms. Brooks, correct?
A: That’s correct.
Q: And, in fact, I believe I counted six times—the first time
do you recall hearing that she says, she’s sick in my hotel room?
Do you recall her stating that?
A: Yes, I do.
Q: The second time she says: She took Seroquel. She’s
asleep in my hotel room.
Do you recall that?
A: I don’t recall the exact quote, but I do remember her
referencing her taking Seroquel.
Q: Okay. The third time she says, right now as we speak
she’s at the hotel?
4
Newbrough’s motion in limine regarding this evidence was unopposed by
the State and granted by the trial court prior to trial.
7
A: Correct.
Q: The fourth time she says, can we go get her, referring to
Shanna?
A: I—I don’t recall that—that one.
Q: Okay. Do you need to listen to the video again? If I
were to tell you that’s what the video says, would you accept that as
true?
A: Yes. I would not refute that.
Q: The fifth time she says that Shanna got stuck there. By
“there,” at the hotel. Do you recall that?
A: Yes.
Q: And the last time—this is actually after you arrested
her—she asks you, is there any way that we can go and talk to
Shanna in my room?
Do you recall that?
A: Yes.
Q: So even though all of the evidence is linked to Shanna
and you know where Shanna is, you never went to interview
Shanna, did you?
A: No, I did not.
Thereafter, in a hearing outside the presence of the jury, the State
requested that it be allowed to inquire as to the reasons why Officer Zabojnik did
not take Newbrough up on her offer to go to the hotel to question Brooks, arguing
that Newbrough had opened the door to this inquiry. The trial court agreed with
the State that the door had been opened as to why the officer did not take
Newbrough to the hotel, but it cautioned that Officer Zabojnik would not be
permitted to testify as to any specific criminal activity at the hotel, such as drug
8
use. On redirect examination in front of the jury, Officer Zabojnik explained,
“Well, it’s not our normal procedure to do so, to take a subject to another place.
Specifically, this time I didn’t because of the criminal activity and the danger
that’s involved with going to that place.”5
Evidence that would normally be inadmissible may become admissible if a
party “opens the door” to it. See, e.g., Williams v. State, 301 S.W.3d 675, 687
(Tex. Crim. App. 2009) (assuming evidence inadmissible under rule 404(b), and
holding no abuse of discretion because appellant opened the door), cert. denied,
560 U.S. 966 (2010); Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App.
2009) (holding that even though State opened the door, trial court acted within its
discretion to exclude rebuttal evidence under rule 403); Carroll v. State, No. 02–
11–00265–CR, 2013 WL 2435560, at *3 (Tex. App.—Fort Worth June 6, 2013,
no pet.) (mem. op., not designated for publication). A party opens the door to
otherwise inadmissible evidence by leaving a false impression with the jury that
invites the other side to respond. Hayden, 296 S.W.3d at 554; Green v. State,
831 S.W.2d 89, 94 (Tex. App.—Corpus Christi 1992, no writ) (“When the
defendant ‘opens the door’ on an issue by attempting to present an incomplete
picture of an incident, the State is permitted to complete the picture by presenting
5
He also further clarified that he did not go to the hotel after Newbrough’s
initial arrest because he is not a detective and does not generally have the
opportunity to do such further investigation.
9
evidence that would otherwise have been inadmissible.”); See also Tex. R. Evid.
106, 107.
On cross-examination of Officer Zabojnik, Newbrough opened the door to
the question of whether, by failing to go to the hotel as suggested by Newbrough,
Officer Zabojnik arrested Newbrough without the benefit of a sufficient
investigation. The State was permitted to close that door through further
questioning regarding why Officer Zabojnik did not go to the hotel. See Hayden,
296 S.W.3d at 554. Accordingly, the trial court did not abuse its discretion in
allowing Officer Zabojnik to testify that the potential for criminal activity and
danger at the hotel was a factor in his decision not to take Newbrough there. We
overrule Newbrough’s second issue.
III. Brooks’s Immunity
In her third issue, Newbrough argues that the trial court erred in not sua
sponte granting immunity to Brooks after Brooks invoked her Fifth Amendment
privilege against self-incrimination and refused to answer questions at trial, and
that such error violated her right to present a meaningful defense.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Everitt v. State, 407 S.W.3d
259, 262–63 (Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302, 306
(Tex. App.—Fort Worth 2013, pet. ref’d).
10
Newbrough concedes that although she asked the trial court to compel
Brooks to testify, she did not ask the trial court to grant immunity to Brooks.
Assuming without holding that the trial court had the authority to grant immunity
to Brooks, Newbrough has supplied no authority for the proposition that the trial
court has a duty to do so sua sponte.6 Because Newbrough did not request the
trial court grant immunity to Brooks, she has forfeited her complaint that the trial
court did not do so. See, e.g., Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.
App. 2012); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A
complaint will not be preserved if the legal basis of the complaint raised on
appeal varies from the complaint made at trial.”). Accordingly, we overrule
Newbrough’s third issue.
IV. Brooks’s Out-of-Court-Statements
Newbrough’s fourth and fifth issues relate to the trial court’s refusal to
permit Josh Floyd, Newbrough’s attorney, to testify as to out-of-court statements
made by Brooks. Newbrough argues that the trial court abused its discretion by
excluding Floyd’s testimony and, alternatively, that Floyd’s actions in continuing
6
In Norman v. State, 588 S.W.2d 340, 344–46 (Tex. Crim. App. [Panel Op.]
1979), the court of criminal appeals found error where the trial court denied
immunity when it had been requested by defense counsel. Norman did not hold
that the trial court has a sua sponte duty to grant immunity to a witness. Id.
Rather, the defendant in Norman had requested immunity for the witness when it
became clear that the witness was an agent of the State and his Fifth
Amendment claim was “spurious.” Id. at 343–44.
11
to represent her after Brooks refused to testify constituted ineffective assistance
of counsel.
A. Disqualification of Floyd as a Witness
The trial court held Floyd’s testimony was inadmissible because he had
acted as a lawyer for Newbrough throughout the proceedings. See Disciplinary
Rules Prof’l Conduct R. 3.08(a), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit.
G, app. A (West 2013).
Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct
precludes a lawyer from acting as both an advocate and a witness in an
adjudicatory proceeding when his testimony is necessary to establish an
essential fact. Tex. Disciplinary Rules Prof’l Conduct R. 3.08(a). This rule is
used for guidance in disqualification disputes. In re Sanders, 153 S.W.3d 54, 56
(Tex. 2004).
[T]he principal concern over allowing a lawyer to serve as both an
advocate and witness for a client is the possible confusion that those
dual roles could create for the finder of fact. . . . If . . . the lawyer’s
testimony concerns a controversial or contested matter, combining
the roles of advocate and witness can unfairly prejudice the
opposing party. A witness is required to testify on the basis of
personal knowledge, while an advocate is expected to explain and
comment on evidence given by others. It may not be clear whether
a statement by an advocate-witness should be taken as proof or as
an analysis of the proof.
Tex. Disciplinary Rules Prof’l Conduct R. 3.08 cmt. 4. The lawyer who may be
called as a witness is not prohibited from participating in preparation of the
matter, but he cannot take an active role in the trial. Id. at cmt. 8. Another
12
attorney in the same firm, however, may act as an advocate at trial with the
informed consent of the client. Id.
After Brooks invoked her Fifth Amendment right and refused to testify at
trial, Newbrough attempted to call Floyd as a witness to testify to statements
made by Brooks in an out-of-court interview. By this point in the trial, the jury
was familiar with Floyd in his role as an attorney and advocate for Newbrough
because he had conducted voir dire and cross-examined a witness.
A trial court’s ruling on the admissibility of the evidence is reviewed for
abuse of discretion and will not be overturned unless it is arbitrary or
unreasonable. Carrasco, 154 S.W.3d at 129; Mechler, 153 S.W.3d at 439. At
that juncture in the trial process, to allow Floyd to take the witness stand and
testify as to an essential fact in the case, i.e., whether Brooks had informed
Newbrough that the prescription was fraudulent, carried with it substantial risk
that the jury would give Floyd’s testimony undue weight or would have been
confused by his mixed role as advocate and witness. See Gonzalez v. State,
117 S.W.3d 831, 840 (Tex. Crim. App. 2003) (“If [defense] counsel were to have
testified, the State would have been prejudiced not only by the undue weight
jurors might attach to counsel’s testimony, but also by confusion”). Under these
circumstances, we cannot say that the trial court abused its discretion by not
allowing Floyd to testify. See, e.g., Beasley v. State, 728 S.W.2d 353, 357 n.5
(admonishing that it would be “highly improper” for an assistant district attorney
“to serve as witness to the [defendant’s] confession, then to resume conducting
13
the State’s case, then to argue to the jury that his version of events was more
credible than [the defendant’s].”) (overruled on other grounds by Brown v. State,
728 S.W.2d 227 (Tex. Crim. App. 1987). Accordingly, we overrule Newbrough’s
fourth issue.
B. Ineffective Assistance of Counsel
In her fifth issue, Newbrough argues that she was not afforded effective
assistance of counsel because Floyd should have withdrawn as her attorney
once it became clear that Brooks would not testify.7
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that her counsel’s representation was deficient
and that the deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289,
307 (Tex. Crim. App. 2013). An ineffective-assistance claim must be “firmly
founded in the record,” and “the record must affirmatively demonstrate” the
meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999).
Direct appeal is usually an inadequate vehicle for raising an ineffective-
assistance-of-counsel claim because the record is generally undeveloped.
Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson,
7
Newbrough invites us to hold that the trial court had a sua sponte duty to
require Floyd to withdraw but provides no support for such a proposition, and we
decline to do so.
14
9 S.W.3d at 813–14. In evaluating the effectiveness of counsel under the
deficient-performance prong, we look to the totality of the representation and the
particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue
is whether counsel’s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error. See Strickland,
466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of
counsel’s representation is highly deferential, and the reviewing court indulges a
strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d
at 307–08.
It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record or when counsel’s reasons
for failing to do something do not appear in the record. Menefield, 363 S.W.3d
at 593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial
counsel “should ordinarily be afforded an opportunity to explain his actions
before being denounced as ineffective.” Menefield, 363 S.W.3d at 593. If trial
counsel is not given that opportunity, we should not conclude that counsel’s
performance was deficient unless the challenged conduct was “so outrageous
that no competent attorney would have engaged in it.” Nava, 415 S.W.3d at
308.
The prejudice prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with a
reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,
15
appellant must show there is a reasonable probability that, without the deficient
performance, the result of the proceeding would have been different. Id. at 694,
104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Strickland, 466
U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. The ultimate focus of
our inquiry must be on the fundamental fairness of the proceeding in which the
result is being challenged. Strickland, 466 U.S. at 697, 104 S. Ct. at 2070.
The trial court appointed an attorney to advise Brooks of her Fifth
Amendment rights four days before trial was set to commence on September 22,
2014. On the morning of September 22, Brooks made the court and the parties
aware that she was going to invoke her Fifth Amendment rights. At that point,
Floyd did not withdraw but rather proceeded to conduct voir dire that afternoon
and represent Newbrough throughout the trial.
There is no explanation in the record as to why Floyd did not withdraw or
take a less active role in the trial once Brooks stated she would plead the Fifth
Amendment. However, unless his conduct was so outrageous that no
competent attorney would have engaged in it, we cannot infer ineffective
assistance. “It is a rare case in which the trial record will by itself be sufficient to
demonstrate an ineffective-assistance claim.” Nava, 415 S.W.3d at 308.
Assuming, without deciding, that Floyd should have withdrawn from
representation at this point, his failure to withdraw did not deprive Newbrough of
a fair trial because the testimony Floyd sought to sponsor as a witness
16
constituted inadmissible hearsay. Although Newbrough argues that the
testimony would have been admissible under rule of evidence 803(24) as a
statement against interest, Brooks’s statement does not fall within that hearsay
exception. Tex. R. Evid. 803 (24) (West 2014, amended 2015).8 Rule 803(24)
provides an exception to the hearsay bar for statements that, at the time of their
making, “so far tended to subject the declarant to . . . criminal liability . . . that a
reasonable person in [the] declarant’s position would not have made the
statement unless believing it to be true.” Id. This exception also provides that
“[i]n criminal cases, a statement tending to expose the declarant to criminal
liability is not admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement.” Id. Thus, determining whether a statement is
admissible as a statement against interest requires a two-step inquiry. Bingham
v. State, 987 S.W.2d 54, 57 (Tex. Crim. App. 1999). First, the trial court must
determine whether the statement in question tends to expose the declarant to
criminal liability. Id. Second, the trial court must determine whether there are
corroborating circumstances that clearly indicate the trustworthiness of the
8
The Texas Rules of Evidence were amended effective April 1, 2015. We
refer to the version of the rules that was in effect at the time of trial in September
2014, and note that the Texas Supreme Court and Texas Court of Criminal
Appeals have noted that the amendments comprise a general restyling of the
rules only, and with the exception of two rules not applicable here, did not make
substantive changes. See Tex. Final Approval of Amendments to the Texas
Rules of Evidence, Misc. Docket No. 15-9048, 78 Tex. B. J. 374 (March 10,
2015) and Tex. Crim. App. Final Approval of Amendments to the Texas Rules of
Evidence, Misc. Docket No. 15-001, 78 Tex. B. J. 376 (March 12, 2015).
17
statement. Id. In making this inquiry, however, we need not reach the second
step, because Brooks’s statement did not tend to expose her to criminal liability.
In Newbrough’s offer of proof at trial,9 her attorney stated that had Floyd
been permitted to testify, he would have testified that Brooks admitted to him
that: (1) Brooks knew the prescription was fraudulent, (2) Brooks had obtained it
from a friend who created fraudulent prescriptions, (3) Newbrough did not know
the prescription was fraudulent, and (4) Newbrough was trying to help Brooks by
getting the prescription filled. However, in the conversation between Floyd and
Brooks, which was recorded and included in the record on appeal, Brooks’s
statements are less straight-forward than the offer of proof would suggest.
While Brooks did confirm that Newbrough did not know that the
prescription was fake, in the recorded conversation Brooks stops short of
admitting that she knew the prescription Newbrough attempted to fill at the
pharmacy was fake. Rather, Brooks equivocates, stating that she was asleep
when Newbrough took the prescription to be filled, that she did not give
Newbrough the prescription, and that Brooks thought it was legitimate.10 At one
point, she asked Floyd, “What determines a fake [prescription]? What makes it
9
Floyd did not make his own offer of proof. Co-counsel, Christina Jimenez,
did.
10
She repeats this three times during the conversation: “The ‘scrip was
good,” “As far as I know, they were legit,” and “I thought they were legit.”
18
real or not real?” At best, toward the end of the conversation, Brooks admits to
a “possibility” that the hydrocodone prescription was not good.
Throughout the conversation, Brooks emphasized that she did not want to
“rat” anyone out or get herself into trouble. While the content of her statements
were indeed favorable to Newbrough’s interest, given the caution that Brooks
exercised throughout her statements to ensure that she did not get herself into
trouble, Brooks’s statements cannot be construed as statements against her
own interest.11 And, certainly, they do not rise to the level that they “so far
tended” to subject her to criminal liability that a reasonable person in Brooks’s
position would not have made the statement unless she believed it to be true.
See Tex. R. Evid. 803(24). See, e.g., Beaty v. State, 156 S.W.3d 905 (Tex.
App.—Beaumont 2005, no pet.) (reasoning that knowledge of the forgery was
shown where defendant implicated herself as a willing participant in a scheme to
acquire controlled substances with “a high degree of abuse potential”).
11
The declarant must recognize the disserving nature of her statement
when it is made in order for the statement to qualify as a statement against
interest, or it merely indicates ignorance, not trustworthiness, and is not
admissible. Walter v. State, 267 S.W.3d 883, 891 n.26 (Tex. Crim. App. 2008)
(citing United States v. Palumbo, 639 F.2d 123, 127–28 (3rd Cir. 1981) (stating
that although technically declarant’s statement to arresting officer who had found
cocaine on her person might tend to show a conspiracy between herself and
defendant, she may not have understood the legal implications of her statement);
United States v. Woolbright, 831 F.2d 1390, 1395 (8th Cir. 1987) (holding that
woman’s statement that bag filled with illegal drugs was hers, not the
defendant’s, was against her penal interest, but her statement that she and
defendant were on a honeymoon trip did not fit exception because even if it were
against her penal interest, there was no evidence that she was “in any manner
aware” that it was)).
19
Because Floyd’s testimony would have been properly excluded as
inadmissible hearsay, we cannot conclude that Newbrough received ineffective
assistance of counsel when Floyd failed to withdraw as Newbrough’s attorney
after becoming aware that Brooks would refuse to testify. See Strickland, 466
U.S. at 687, 104 S. Ct. at 2064. We therefore overrule Newbrough’s fifth issue.
Conclusion
Having overruled each of Newbrough’s issues, we affirm the judgment of
the trial court.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: GARDNER, MEIER, and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 15, 2015
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