# Kristi Newbrough v. State

> Texas Court of Appeals, 2nd District (Fort Worth) · October 15, 2015

URL: https://www.frixlaw.com/law-library/cases/3120684

## Case

- **Court:** Texas Court of Appeals, 2nd District (Fort Worth)
- **Decided:** October 15, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- holding that even though State opened the door, trial court acted within its discretion to exclude rebuttal evidence under rule 403

## Opinion text

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-14-00442-CR

KRISTI NEWBROUGH APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2012-2117-E

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MEMORANDUM OPINION1

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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

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3120684. Public record. Not legal advice.