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Thornton v. State7/20/1999
was the driver." Citing rule 613(a) of the Texas Rules of Evidence, appellant argues he was entitled to impeach Watley by showing he had given prior inconsistent testimony concerning whether appellant denied driving the cab. See Tex. R. Evid. 613(a) (formerly Tex. R. Crim. Evid. 612(a)).
The admission of evidence is left to the sound discretion of the trial court. See Jackson v. State 575 S.W.2d 567, 570 (Tex. Crim. App. 1979). Rule 613(a) provides:
"In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. . . .Tex. R. Evid. 613(a)."
The record reflects that appellant laid the proper predicate for impeachment by telling Watley the contents of the alleged inconsistent statement and the time, place, and person to whom it was made. See McGary v. State, 750 S.W.2d 782, 786 (Tex. Crim. App. 1988), Miller v. State, 666 S.W.2d 269, 274 (Tex. App.--Dallas 1984, pet. ref'd). Once the predicate is laid, the admissibility of the prior inconsistent statement depends on whether the witness denies or unequivocally admits making the statement. If the witness denies making the statement, the prior statement may be offered to impeach the witness. See McGary, 750 S.W.2d at 786. However, if the witness unequivocally admits making the statement, it is inadmissible, the rationale being that the witness impeached himself by admitting the prior inconsistent statement. Id. The rule governing admissibility of prior inconsistent statements should be liberally construed, and the trial court has the discretion to receive any evidence which gives promise of exposing a falsehood. Aranda v. State, 736 S.W.2d 702, 707 (Tex. Crim. App. 1987).
Initially, on cross-examination, Watley testified that he did not recall his testimony at the administrative license suspension hearing regarding whether appellant denied driving the cab. The State concedes that, if appellant had offered the tape recording following this testimony, it would have been admissible. The State, however, contends that Watley, when recalled by appellant, unequivocally admitted that he did not testify at the hearing that appellant had denied driving the cab. Thus, the State argues that appellant explained his statements as contemplated by rule 613(a). After being recalled by appellant, Watley never made an unequivocal admission that he had given prior inconsistent testimony. When asked if it was possible the authenticated tape of the administrative hearing showed he did not testify that appellant denied driving the cab, Watley testified that it was possible. Watley further agreed with appellant's counsel that it was fair to say that he might have forgotten it. The most Watley was willing to admit was that, if the tape of the administrative hearing showed he failed to mention appellant denied driving the cab, he "wouldn't dispute it."
The appellant's admission was not unequivocal. His answers were based on questions that assumed facts not in issue_i.e.:
""If there were a tape of the hearing . . .", "You might have forgotten . . . ." Watley's answers could only be considered unequivocal if the facts upon which the questions were as
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