# Guerra v. State

> Court of Criminal Appeals of Texas · May 4, 1988 · 771 S.W.2d 453

URL: https://www.frixlaw.com/law-library/cases/9857350

## Case

- **Full name:** Ricardo Aldape GUERRA, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 4, 1988
- **Citations:** 771 S.W.2d 453; 1988 Tex. Crim. App. LEXIS 90; 1988 WL 40703
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** McCormick, Clinton, Onion, Miller, Teague
- **Cited by:** 180 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9857350

## How later opinions describe it (automated extraction)

- finding that “the determination of whether the officer was engaged in making a valid arrest at the time of his death 6 is not necessary to the resolution of whether the officer was acting within the lawful discharge of his official duties.”
- holding, “the determination of whether the officer was engaged in making a valid arrest at the time of his death is not necessary to the resolution of whether the officer was acting within the lawful discharge of his official duties”
- noting trial court’s ability to restrict voir dire, which “can become the lengthiest part of a criminal proceeding”

## Opinion text

CLINTON, Judge,
dissenting.
Among appellant’s eighteen grounds of error are three grounds of error attacking the trial court’s decision to allow the witness, Marie Estel Armijo, briefly to testify *477 over repeated and strenuous objections that her testimony (1) constituted inadmissible hearsay, (2) bolstered the testimony of her son, Jose Armijo, Jr., and (3) was admitted in violation of the rule, Article 36.03, V.A.C.C.P. While I am satisfied that the first two of these contentions present no error, I am deeply troubled by the third, and believe that it amounts to an abuse of the trial court’s discretionary authority to enforce the rule. Article 36.04, V.A.C.C.P. 1 To fully address the gravity of the problem it is necessary to set out: first, the undisputed evidence; second, the testimony of the various “eyewitnesses” to the killing; third, the testimony of Jose Armijo, Jr., son of Marie Armijo; and finally, the testimony of Marie Armijo herself.
I.
A.
The following events were established at trial beyond peradventure:
Houston Police Officer James Harris was on “K-9” patrol, his only partner a police dog, on the evening of July 13, 1982, in what was described as a lower middle class Mexican-American neighborhood in Houston. At approximately 10:00 p.m. Harris spoke to a pedestrian, George Brown, who informed him that a black “Cutlass” had only moments before attempted to run over Brown, forcing him into a ditch. Other witnesses had seen this car “driving fast ... spinning tires, burning rubber.” Harris gave pursuit.
Less than a minute later Harris came upon a black Buick with red vinyl top stalled at the intersection of Edgewood and Walker. Harris stepped out of his vehicle, leaving the door open, and beckoned to the occupants of the Buick. Appellant, who was the driver, and his companion, Roberto Flores, approached Harris. One of the two then shot Harris three times, the bullets entering the left side of his face and exiting on the right. Three spent nine millimeter cartridges were subsequently found beside Harris’ vehicle, and three bullets fired from a Browning nine millimeter pistol were recovered from a house in the direction in which the slugs that killed Harris would have traveled. The shots proved fatal. Appellant and Flores then fled on foot in an easterly direction down Walker.
At this time Jose Armijo and his two children, Jose, Jr., and Lupita, were driving west on Walker. From the passenger side of the car, on the north side of Walker, came a shot from a Browning nine millimeter pistol that killed Armijo, Sr. Two nine millimeter cartridges were found on the north side of the street. Also found, on the south side of Walker, were two cartridges from a .45 caliber pistol.
Approximately an hour later Flores died in a shootout with Houston police, during which an officer was also seriously wounded. The shootout occurred outside the residence next door to which appellant had been living, several blocks from the scene of Harris’ killing. Under Flores’ body was found a Browning nine millimeter pistol, which he had used in the gun battle with police. It was positively shown this was the weapon that killed Armijo, Sr.; and it is also reasonable to believe, although it could not be proved definitively, that this gun killed Harris. Also found on Flores were a magazine containing 20 nine millimeter rounds, and Harris’ service revolver. Police found appellant at the same location, crouching behind a horse trailer. The .45 caliber pistol which had been fired earlier was discovered wrapped in a bandana under the trailer, two feet from where appellant was found.
B.
The sole contested issue at trial was whether Flores, rather than appellant, shot Officer Harris. The State produced five witnesses, including Jose Armijo, Jr., who “saw” the shooting and testified that appellant was the perpetrator. Appellant and two other eyewitnesses testified, in essence, that Flores actually shot Harris. *478 The State’s own witnesses contradicted one another as to which man had run down the north side, which the south, of Walker — a critical question, since whoever fled down the north side shot Armijo with the same weapon used to kill Harris. No witness went unimpeached. Thus we apparently have, in addition to the undisputed testimony as set out in Part A, ante, nothing more than a classic “swearing match.” Nonetheless, for reasons to be developed, I believe that the testimony of Jose Armijo, Jr., was critical to the State’s case. I turn first to examination of the testimony of the State’s other eyewitnesses.
Patricia Diaz was in a car coming east on Walker Street when she encountered the Buick blocking the intersection, between her vehicle and Harris’. She heard someone she later assumed was Harris yelling “stop, stop,” and saw appellant “standing by his car turned sideways pointing” in the direction of the police car. Diaz demonstrated “how he was pointing,” but she could not make out what, if anything, was in appellant’s hand. She testified she saw no one else around. She ducked and then heard shots. On crossexamination she stated: “I didn’t see him fire. I just saw the way he was standing. That was it.” Later she admitted, “I didn’t exactly know who shot who.”
Herlinda Garcia was fifteen years old at trial. She testified that she was standing with her sister at some point at the intersection of Edgewood and Walker 2 and observed two men get out of a Buick. Appellant, the driver, approached Garcia saying, “something about a boost, something about their car being messed up.” Harris then pulled up, “put his headlights on [appellant, and] said ‘Hold it.’ ” The two men got out of the car and approached Harris. She testified that she saw appellant “turn toward the policeman” and pull what “looked like” a gun from his pants. She then heard three shots, and, seeing Harris go down, she ran. She seemed to indicate, though the record is murky on this point, that appellant then fled down the north side of Walker. She concluded her direct examination by affirming the prosecutor’s leading question whether she was certain appellant was the man she “saw” shoot Harris.
On crossexamination the following colloquy ensued:
“A: He pulled something out of his pants.
Q: Did you see what it was?
A: No.
Q: When he pulled that something out of his pants, what did you do?
A: That is when we just ran. I heard gunshots somewhere.
Q: When you heard the gunshots, did you see the officer at all?
A: No.
Q: Did you see the gunshots?
A: No. I told you I was running at the time of the gunshots.
Q: Well, did you see this man here, the [appellant]? Did you see him fire at the police officer?
A: Yes.
Q: You did?
With what?
A: I didn’t see with what. He was going towards the policeman.
Q: Okay.
A: And the other one I didn’t see.
He was going towards the policeman, and that is when I heard gunshots and that is when I ran.
Q: You are not telling this jury you saw the [appellant] shoot the police officer?
A: Yes.
Q: With something he had in his hands?
A: What else could it have been, if not gunshots?
Q: Did you see the fire come out of the barrel?
A: No, I didn’t.
Q: Because when you saw this, you ran, right?
*479 A: Uh-huh.”
Asked on redirect why she was telling the jury that “this is the man who shot the police officer,” she replied “Because that is who I saw.” On recross she again insisted that she never saw Flores. Finally, in apparent exasperation she concluded:
“A. I am trying to explain. In the car there was two men. I didn’t see the other one. I didn’t pay any attention to him. He just got out of the car. I didn’t see him.”
Next to testify was Garcia’s sixteen year old sister, Yera Flores. According to Vera, she was standing at the intersection with her sister when the Buick stopped, appellant got out and asked them for “cables to get him a boost.” She testified that appellant was the “only one [she] was paying any attention to.” After about a minute and a half Harris arrived and said, “Stop.” Harris stood by the open driver’s door of his vehicle as the two men approached. Some unidentified person said, “no, no,” and Vera heard three gunshots, but did not see a gun. Then:
“Q: Okay. Could you tell who had fired those shots from where you were at, which one of the three men had fired those shots you heard?
A: Yes, sir.
Q: Which one was it of the three men who fired those shots?
A: The driver in the black car. [3]
Q: Okay. Could you see the pistol at all from where you were at—
A: No, sir.
Q: —or the type of gun?
A: No, sir.
Q: When you say it was the driver who fired those shots, how do you know it was the driver who fired those shots?
A: Because when he started running, I just seen him shooting down the street.”
On crossexamination Vera could not describe the activities of the “other one” except to say that he stood next to the police car with his hands on the hood, closer to Harris than was appellant. Like Garcia, she insisted that she “wasn’t really bothering with the other one:”
“Q: And the passenger, where did he—
A: No. I didn’t see him.
What I am trying to say, I saw both of them. I did, but I was not paying attention to him. I was paying attention to the driver.
Q: But you said you saw both of them put their hands on the police car hood?
A: I did.”
She then testified that after the shooting appellant ran down the south side of Walker, firing his weapon.
On redirect the prosecutor reminded Vera that on July 14, in the early morning after the murder, she told police she “saw” appellant' pull a pistol from his pants and shoot Harris. Asked if indeed that was what she “saw,” Vera answered “yes,” and confirmed that she was sure. But on recross she stated: “I seen his hands, and then that is all I seen.” Asked again if she had seen appellant shoot Harris, she replied: “Did I see him? I don’t remember.”
Hilma Galvan testified that she had seen appellant before as a customer in a convenience store where she worked, located in the neighborhood. Galvan was standing on the north side of Walker in front of her house, which was apparently the second or third house down from the intersection, and “maybe fifty feet” from the corner. Her testimony places witnesses Flores and Garcia in front of the Buick, on the south side of Walker. She saw appellant “yelling” at the sisters. From his open car door, Harris ordered appellant to “come here,” and when appellant instead began to walk away, Harris told him, “Hey, you come back.” Appellant then turned and approached Harris. Galvan repeatedly insisted she saw nobody else. She testified:
“Q: Did you actually see this man who was walking towards the police officer shoot at the police officer?
A: I did.
Q: Okay. Could you tell from your position there by your house what type of gun it was the man had?
*480 A: No, sir. I never seen the gun.
Q: You don’t know anything about guns anyway, do you?
A: No. Not that much.
Q: But this man who shot the police officer, did you see some type of gun or pistol in his hand?
A: Yes, I seen the — like, you know—
Q: The flash?
A: Yes, I seen the flash coming out, and it sounded real loud.”
On crossexamination Galvan was shown a pretrial statement in which she had said Harris “pushed” appellant up against the police car. Galvan agreed that Harris was “touching” appellant, and stated that “[t]he shots were fired right there and then.” Still she saw nobody else. Next:
“Q: So then the shooting started?
A: Yes.
Q: And what transpired in that immediate second that you saw if you can remember?
A: If I can remember?
I heard the shots. I seen the officer fall, and I seen the man running towards us, shooting.
Q: Let me stop you right there.
You heard the shots?
A: Yes.
Q: You didn’t see the shots?
A: I seen the man that was right in front of him, and a flash was coming out of his gun.
Q: You saw the flash?
A: Yes.”
Appellant then ran down Galvan’s side of the street, which was the north side. Gal-van insisted that she never saw Roberto Flores that night, although she admitted she “had seen him before.”
When the State rested, appellant put two teenage boys on the stand who viewed the incident from the same vantage as had Galvan. Jacinto Vega testified:
“Q: What did the driver — after he talked to Herlinda and Elvera, the driver, what did the driver do?
A: After that, the cop was behind the black car and called the driver.
Q: And did the driver come over?
A: He did.
Q: And what did he do?
A: He put his hands over the hood.
Q: And the passenger, what was he doing?
A: He was' coming behind the driver.
Q: And did you see the passenger do anything unusual?
A: Yes. He was — the police told him something, and he came over to the police, and after that, he was in the back of the driver, and he took something out and he shoot him.
Q: The passenger, right?
A: The passenger.”
Vega did not know who the passenger was. He explained the fact that he had identified appellant at the July 14 police lineup in that the police had simply asked him whether he recognized anyone, not whether anyone in the lineup shot Harris.
Jose Heredia testified substantially as did Vega. In addition, he identified the passenger as “Werro,” which was shown to be a name by which Flores had been known. Heredia insisted that Flores shot Harris. Both Vega and Heredia admitted being at least acquaintances of appellant.
Finally, appellant testified in his own behalf, through an interpreter, and asserted that the nine millimeter pistol belonged to Flores. According to appellant, he and Flores had both talked to the two sisters about cables. They then returned to the Buick and attempted to start it. Harris arrived and told them to “come on.” Appellant put his hands on the hood of the police car and spread his legs, as he thought Harris was instructing him to do. Harris’ gun was drawn, and he was telling Flores also to “come on.” Appellant was concentrating on Harris’ gun when he heard shots in his ear. Flores then took Harris’ fallen gun, and both men fled, appellant down the south side of Walker, drawing his .45 caliber pistol for the first time and firing “upwards.” He testified he did not know what side of the street Flores ran down.
Were this the only evidence in the case, I would be inclined to hold the evidence in *481 sufficient to find appellant guilty of murdering Officer Harris. This is because, to my mind at least, the testimony of the State’s witnesses, as set out ante, does not exclude the reasonable hypothesis that Flores killed Harris; or, to put it another way, though such testimony does not necessarily support the inference that Flores did, neither does it eliminate that possibility beyond a reasonable doubt. See, e.g., Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983). While I realize that the present case does not appear to be based on circumstantial evidence, still, as Carlsen, supra, makes clear, the appellate standard for determining sufficiency is the same, viz: “whether, after viewing [all of] the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560, 573 (1974).
Though all of the State’s eyewitnesses, except Diaz, testified that appellant killed Harris, on crossexamination it was revealed that this was a conclusion on the part of each, not necessarily borne out by her particular perceptions of the event. Garcia saw what “looked like” a gun, pulled from appellant’s pants, and then she “heard” shots — she herself was running by this time. She definitely “saw” appellant, but seems to have assumed he fired the fatal shots — not a necessarily unreasonable assumption on her part, since she “didn’t see” Flores there; but not a particularly reliable one either. Vera Flores also “heard” gunshots but saw no gun. She concluded that appellant fired the shots simply because he subsequently fled, discharging his gun. But the evidence shows unequivocally that both men had guns, and appellant’s discharge of his weapon as he fled does not prove he fired the first fatal shots, or even that he ever drew on Harris. Galvan saw appellant approach Harris, saw Harris touch appellant in some manner, “heard” and saw the flash of a gun, and then saw appellant come in her direction. She did not see a gun in appellant’s hand. The most remarkable aspect of these witnesses’ testimony is that when the killing occurred none had any idea what Flores was doing or even where he was. They simply “did not see him” — indeed, Galvan never saw him.
None of this removes the reasonable hypothesis, advanced by appellant’s defensive testimony, that as appellant approached the police car, Flores came between the two cars, positioned himself beside and behind appellant, just to Harris’ left, and shot Harris. This theory comports with the physical evidence, as reviewed ante. Furthermore, it is utterly inconceivable to me that in the time between the killing of Harris and the subsequent gun battle with police, when the murder weapon was discovered on Flores’ person, appellant and Flores would have traded weapons!
The trial court gave no charge authorizing the jury to convict appellant as a party to Harris’ murder. Thus, in order to convict appellant of murder it was necessary that the jury find beyond a reasonable doubt that appellant himself shot Harris. Absent the testimony of Jose Armijo, Jr., to which I turn next, I am most doubtful any rational jury could have so found. 4
C.
Armijo, Jr., ten years old at the time of trial, testified before any of the State’s other eyewitnesses. Thus he gave the jury its initial impression of the events surrounding the actual shooting of Officer Harris.
Armijo testified that he was coming home from the auto parts store with his father and sister when they noticed “the black car” and Harris’ vehicle blocking the intersection ahead. Armijo saw two men with their hands on the hood of the patrol car.
“Q: What did you see?
A: The other one scratched his back.
*482 Q: Which one scratched his back?
A: The one that has long hair.
Q: All right. Was the man that had the long hair closer to the police officer when he had his hands on the hood or was he the one farther away from the police officer?
A: Closer.
Q: And what did you see that man do?
A: He shot the police.
Q: Before he shot the police officer, did you see him do anything with his hands?
A: Yes. He acted like he was scratching his back.
Q: When you said — he took his hands from off the police car and acted like he was scratching his back?
A: Yes.
Q: After he did that, what happened then?
A: He took out the gun and shot the police.
Q: Do you know how many times he shot the policeman?
A: No.
jjc * ⅜ ⅜ ⅜ *
Q: Did you see any fire coming from the gun when he shot the police officer?
A: Yes.
Q: What did you see happen to the policeman after he was shot?
A: He fell down on the ground.
Q: Do you remember what the man was wearing that was standing closer to the police officer, that scratched his back?
A: Yes.
Q: And came out with a gun?
A: Yes.
Q: What was he wearing?
A: A green shirt.”
When found, appellant was wearing a green shirt; and indeed, Armijo apparently identified appellant in court as the man who shot Harris; but see n. 2, ante. One of the men, Armijo did not know which, then took Harris’ gun and “[t]hey started running and shooting all over the place.” “The one with the green shirt” ran by the car and shot into it, killing Armijo, Sr.
The State then elicited, still on direct, that at the police lineup early the next morning, Armijo, Jr., told police he could identify no one, but that this had been “a lie.” Armijo explained that he had not identified appellant because, as he said, “I was scared he might come out and get me.”
On crossexamination Armijo’s perceptions of the shooting itself were not tested. Instead defense counsel focused on a statement the boy had given police the night of the shooting in which he had said he did not know what the two men looked like nor what they had worn. Armijo admitted that at the lineup he had been told that the one way mirror would prevent those in the lineup from seeing him. It was further established that, once he heard the first shots, Armijo pushed his sister to the floorboard of the car where they remained until the two men had run well past them.
Then, the following occurred, and with it were engendered appellant’s three grounds of error at issue here:
“Q: Has anybody talked to you about this case?
A: Yes.
Q: The Prosecution, the prosecutors, Mr. Bax and Mr. Moen?
A: Yes.
Q: Have the police talked to you?
A: Yes.
Q: Yesterday?
A: Yes.
Q: Did they talk to you any other times?
A: Yes.
Q: Did they talk to you on Saturday?
A: Yes.
Q: Did they talk to you today?
A: Yes.
Q: Who talked to you?
A: I forgot his name.
Q: Mr. Bax?
A: Yes.
Q: And Mr. Moen?
A: Yes.
Q: Any police officers talk to you?
A: Yes.
*483 Q: So after you have talked to these people, you have changed your complete version of the facts and they are completely different from what you told the police back on the night of the incident; isn’t that correct?
A: Yes.”
At this time there was an outburst “from a woman in the back of the courtroom,” later shown to be Marie Armijo, Jose Armijo, Jr.’s, mother. She was escorted out by the bailiff, not to return until she herself testified toward the end of the State’s case in chief. Thus she did not hear the bulk of the State’s eyewitness testimony. But, though she spoke no English, she did hear her son’s testimony, translated to her by her sister-in-law.
D.
After a hearing, and over repeated objections by appellant on the grounds now raised on appeal, Marie Armijo was allowed briefly to take the witness stand and testify through an interpreter. She testified that on the night of the shooting she had gone to the hospital where her husband had been taken, while Jose, Jr., went to the police station to give a statement. She did not see Jose again until 8:30 the following morning. At this time he cryingly told her:
“... that he had seen the person that had done it and he was able to identify the person, but he was very much afraid to tell the police about that and didn’t think he should tell them.”
Further, she testified that since his father’s death, Jose, Jr., had not been the same carefree child as before, and that “[h]e was afraid of the person that had shot his father.” It was established that on the Saturday prior to her testifying, Marie Armijo had informed prosecutors that her son could identify the killer. Finally she confirmed that her son had also been afraid to testify at trial. 5
On crossexamination it was established that Marie Armijo had made the outburst at the end of her son’s testimony, which had been translated for her. Then:
“Q: Have you talked to your son since then?
A: Yes, sir.
Q: Did you talk to your son yesterday?
A: Yes, about he was a witness and what was the truth.
Q: Did he talk about the facts in this case?
A: Yes, sir.”
Again objection was made that the witness had been allowed to testify in violation of the rule. The objection was overruled.
On redirect Mrs. Armijo was allowed to explain her previous outburst in the courtroom as follows:
“A: Well, it was because I wanted to make certain that it was the truth, what my son was saying, because he told me that that was the truth.”
The witness was then excused.
With the foregoing in mind I proceed to discussion of appellant’s grounds of error complaining of Marie Armijo’s testimony.
II.
A.
The objections to hearsay and bolstering are fairly easily disposed of. Prior to Mrs. Armijo’s testimony a short hearing was held out of the presence of the jury. The State argued that Armijo’s testimony would be offered to rebut the insinuation raised during crossexamination of Jose, Jr., that his explanation for not identifying appellant at the police lineup, viz: that he was afraid, was concocted by prosecutors *484 and by the boy himself. 6 The State contended that the boy’s prior consistent statement — that he told his mother as early as the next day that he had seen Harris’ killer in the lineup but was afraid to identify him to police — was admissible to refute the defensive insinuation that Jose Armijo, Jr.’s explanation for not identifying appellant at the lineup had been recently fabricated. Indeed, the testimony was admissible for this purpose, see 1 R. Ray, Texas Law of Evidence Civil and Criminal § 774 (Texas Practice 3rd ed. 1980), and the trial court so ruled.
Appellant seems to have argued to the court that Mrs. Armijo’s testimony improperly bolstered her son’s incourt identification of appellant, by confirming that Jose really could have identified appellant at the police lineup. They objected that the fact that Jose told his mother after the police lineup that he really could identify the killer was not a “prior consistent statement” capable of rehabilitating his statement to police. But that was not the purpose for which the testimony was offered. At no time in her testimony did Mrs. Armijo indicate that Jose told her that appellant had been in the lineup or that Jose could identify him. The State very scrupulously directed her responses to the fact that Jose had seen the killer in the lineup, without identifying him, but was afraid to tell police at that time. Thus, her testimony did not “bolster” that of her son, but rehabilitated him. See Sledge v. State, 686 S.W.2d 127 (Tex.Cr.App.1984); Pless v. State, 576 S.W.2d 83 (Tex.Cr.App.1979). Nor, of course, was it hearsay, as it was not admitted to prove the truth of the fact asserted therein, but only to show that Jose had previously made the statement. These grounds of error are therefore correctly overruled.
B.
Appellant also argued, however, and most vigorously, that admission of Mrs. Armijo’s testimony violated the trial court’s own order at the beginning of trial that all witnesses be placed under the rule.
Article 36.03, V.A.C.C.P., reads in relevant part:
“At the request of either party, the witnesses on both sides may be sworn and placed in the custody of an officer and removed out of the courtroom to some place where they cannot hear the testimony as delivered by any other witness in the cause. This is termed placing witnesses under the rule.”
The purpose of the rule is “to prevent the testimony of one witness from influencing the testimony of another.” Cook v. State, 30 Tex.App. 607 , 18 S.W. 412 (1892). The genesis of the rule is said to lie in the History of Susanna, a book of the Apocrypha:
“The story of Susanna is familiar. Her accusers testified in the presence of each other to her guilt. She was about to be condemned when Daniel interposed, saying: Tut these two aside, one far from another, and I will examine them.’ His examination disclosed such discrepancies in their testimony as resulted in the release of Susanna and the condemnation of her accusers. Since then the importance of the separation of witnesses has been regarded as a valuable adjunct to the cross-examination of witnesses and a right accorded whenever demanded in the trial of causes [citations omitted].”
Bishop v. State, 81 Tex.Cr.R. 96 , 194 S.W. 389 (1917).
It had long been held under the common law that “[t]he admissibility of witnésses who have violated the rule, or who have not been placed under the rule, is within the sound discretion of the court, and such discretion will be presumed to be correctly exercised until the contrary appears.” Cook v. State, supra. That holding was essentially codified in art. 645, Vernon’s Ann.C.CT. (1925), now Article 36.04, V.A. C.C.P., which provides, inter alia, that *485 “[t]he enforcement of the rule is in the discretion of the court,” see Wilson v. State, 158 Tex.Cr.R. 334 , 255 S.W.2d 520 (1953), and was most recently reiterated in Green v. State, 682 S.W.2d 271 (Tex.Cr.App.1984).
The trial court abuses its discretion when its refusal to enforce the rule works to the injury or prejudice of the accused. Hougham v. State, 659 S.W.2d 410 (Tex.Cr.App.1983); Haas v. State, 498 S.W.2d 206 (Tex.Cr.App.1973); Murphy v. State, 496 S.W.2d 608 (Tex.Cr.App.1973). Relevant criteria for determining injury are (1) whether the witness actually heard, either (2) a defense witness whom he then contradicts, or (3) a prosecution witness whose testimony he subsequently corroborates, (4) on an issue of fact bearing upon guilt or innocence. Hougham v. State, supra (Clinton, J., concurring); Day v. State, 451 S.W.2d 508 (Tex.Cr.App.1970); Wilson v. State, supra. Archer v. State, 703 S.W.2d 664 (Tex.Cr.App.1986).
The record clearly indicates that Mrs. Armijo actually heard the testimony of her son. Though that testimony had to be translated to her, her outburst and explanation for it indicate that she well understood the testimony which she subsequently corroborated. Furthermore, during the interim between her son’s testimony and her own, they discussed the facts and “what was the truth.” Thus the only impediment to a finding of abuse of discretion on the part of the trial court in allowing Mrs. Armijo’s corroborating testimony is a determination whether what she corroborated was “an issue of fact bearing upon guilt or innocence.” It is to this end that I have so painstakingly set out, in Part I of this opinion, the evidence upon which the jury relied to find appellant, not Roberto Flores, killed Officer Harris.
Jose Armijo, Jr., was the only State’s witness who saw both appellant and Flores and could testify unambiguously that appellant perpetrated the shooting. His were the only perceptions that went unim-peached. To my mind his testimony is all that stands between appellant and an acquittal for insufficient evidence. See Part IB, ante.
The critical factor for the jury in assessing Jose’s testimony, in view of his prior inconsistent statements to police, was his credibility as a witness. In anticipation of this, and to soften its inevitable effect upon the jury, the State elicited the prior statement, along with an explanation, during Jose’s direct testimony. A great deal depended upon the plausibility of the explanation, and a blow to that could prove critical. Thus, though Marie Armijo did not testify to facts bearing directly upon determination of appellant’s guilt or innocence, her testimony directly impacted the credibility of the witness whose testimony most bore upon appellant’s guilt or innocence. Having heard her son’s testimony, she was in an ideal position to know precisely how to testify in order to rehabilitate him. It seems to me there is a considerable likelihood her testimony affected the jury’s verdict — indeed, it may have sealed the finding of guilt in a case otherwise rife with doubt.
The majority finds the situation in Green v. State, supra, analogous to that here, and thus concludes there has been — indeed, there “can be” — no abuse of discretion shown. To my mind Green is easily distinguishable. There the witness Stevens had been in attendance the entire trial and had overheard Green speaking informally in the courtroom. Thus she was in a position to dispute defense testimony that Green did not have a speech impediment, which was a critical issue in the case. However, Stevens “was apparently not connected with the case in any way and simply heard [the defendant] speak.” The same cannot, be said of Marie Armijo. Her husband had been shot to death only moments after the events in issue at appellant’s trial, and her son was the State’s principal witness. Her emotional investment in the case was clearly manifested by her outburst in the courtroom at the conclusion of Jose, Jr.’s testimony.
The majority derives far more from the somewhat lean analysis in Green than will withstand scrutiny. From the language quoted the majority identifies a “two-step *486 approach” to measuring abuse of discretion in enforcement of the rule. If the witness had no connection with the proponent’s case in chief and was not contemplated as a “likely” witness at the outset “because of lack of personal knowledge regarding the offense,” “no abuse of discretion can be shown.” Only “if the witness was one who had personal knowledge of the offense and who the party clearly anticipated calling to the stand” will the test as refined in Archer v. State, supra, even come into play. In other words, rebuttal or impeachment witnesses are effectively insulated from enforcement of the rule. Green did not purport to mandate such a “two-step approach,” however. There we merely observed that there are two identifiable classes of witnesses: those who were initially placed under the rule, and those who were not because not originally believed to be necessary either to the State’s case in chief or to rebut anticipated defense evidence. There is no suggestion that a prejudice analysis would be inapposite to an appellate determination of whether permitting the testimony of a member of the latter class who has listened to all or portions of the trial was an abuse of discretion. There is only the observation that the witness Stevens was “not connected with the case in any way_” By this I perceive the Court meant it could imagine no respect in which Stevens’ having heard the evidence at trial could have influenced the substance of her testimony.' While this is at best a questionable application of the prejudice test ultimately adopted in Archer, supra, it plainly does not dispense with that test.
Nevertheless, on the dubious authority of Green , the majority recasts enforcement of the rule, without other precedent or any foundation in the language of Article 36.03, supra. I do not believe that vindication of the policy considerations underlying enforcement of the rule can in reason be made contingent upon the foresight (or lack of same) of the parties in predicting who their “necessary” witnesses will be.
Meaning to impute no bad faith on the part of the prosecution nor malice in the trial court, nonetheless, and limited to the facts of this particular case, I would hold that allowing Marie Armijo to testify in violation of the rule constituted an abuse of discretion. Because I believe a genuine miscarriage of justice has occurred, I respectfully dissent.
TEAGUE, J., joins.
. Effective September 1, 1986, these provisions were repealed. See now Tex.R.Cr.Evid., Rule 613. Appellant was tried in 1982.
. Deplorably, the record is riddled with instances of witness identification of persons and places which, though they must have been clear to all present at trial, cannot be ascertained from the cold record — instances of unspecified pointing, of identifying "him” with no indication of to whom 'him” refers.
3. Vera later identified appellant as the driver.
. In fact, even with Armijo’s testimony I personally have substantial doubt that appellant was the triggerman here. Of course I recognize this Court has no authority to pass upon the weight and preponderance of the evidence. Combs v. State, 643 S.W.2d 709 (Tex.Cr.App.1982); Gold v. State, 736 S.W.2d 685, 690 (Tex.Cr.App.1987).
. Just before Ms. Armijo’s testimony the court allowed Houston Police Officer Edward Cavazos to testify, over objections of bolstering and hearsay, that the day before Jose Armijo, Jr., had testified, he had indicated to Cavazos that he was uneasy about appellant’s presence in the courtroom. Cavazos also testified that he in no manner directed Jose as to how he should testify in court. As with Ms. Armijo's testimony, the State argued this was admissible to counter defensive insinuations that Jose’s explanation was implausible. It should be noted that Officer Cavazos’ testimony does not, however, refute any suggestion of recent fabrication, since he did not describe a prior consistent statement. See analysis in Part II A, post. In fact, Officer Cavazos’ testimony may well have served no rehabilitative function whatsoever, merely bolstering Jose’s explanation. See Sledge v. State, 686 S.W.2d 127 (Tex.Cr.App.1984).
. The crossexamination set out at p. 482, ante, was obviously intended to invite the jury to infer that Jose, in league with police and prosecutors, had made up the story told on direct examination. This suggestion necessarily includes the insinuation that a few days prior to trial Jose’s "explanation” for the prior inconsistent statement was also fabricated.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9857350. Public record. Not legal advice.