Carty, Linda Anita:
Black; age 42 at crime (DOB: 10-5-1958); kidnaping and murder of Latin
female age 20 (and victims infant son) in Houston on 5-16-2001;
sentenced on 2-21-2002.
On 05/16/2001 Carty
and three co-defendants invaded the home of a 25 year old female. The
victim and her three day old baby were kidnapped and two other victims
were beaten, duct taped, and left in the residence.
The 25 year old
female was hog-tied with duct tape, a bag was taped over her head, and
she was placed in the trunk of a car. This victim died from
Linda Anita Carty (born 5 October 1958) is a
woman possessing both United States and British citizenship on death
row in Texas. She was convicted and sentenced to death in February
2002 for the abduction and murder of 20-year-old Joana Rodriguez,
allegedly in order to steal her new born son.
Carty claims she was framed by drug dealers in
response to her work as an informant and has appealed her conviction.
Her appeals have been unsuccessful and the appeal procedure has been
exhausted. Barring the granting of clemency, she stands to become the
first female British national to be executed since Ruth Ellis in 1955,
and the first British black woman executed in more than a century.
Born in St. Kitts to Anguillan parents, Carty holds
British citizenship as St. Kitts was a British colony at the time of
her birth. She emigrated to the United States in 1982 and is a citizen
of the United States.
In 1992, Carty was convicted of auto theft and
impersonation of an FBI agent. She was sentenced to 10 years
probation, on the condition she would work as a drug informant. While
working as an informant, she provided information leading to two
arrests. Her services came to an end when she was arrested on drug
However, in media interviews Carty has claimed that
she was recruited by a friend from the Houston Police Department and
that her work for the DEA helped land seizures of thousands of
dollars' worth of narcotics and led to the imprisonment of scores of
According to the Texas Department of Criminal
On 16 May 2001, Carty and three co-defendants
[Gerald Anderson, Chris Robinson, and Carlos Williams] invaded the
home of a 25 year old female. The victim and her three day old baby
were kidnapped and two other victims were beaten, duct taped, and
left in the residence. The 25 year old female was hog-tied with duct
tape, a bag was taped over her head, and she was placed in the trunk
of a car. This victim died from suffocation.
Investigators initially suspected Carty after they
discovered that she had told people she was going to have a baby
despite not appearing pregnant. While interviewing neighbors in the
apartment complex, police heard from one neighbor that she sat with
Carty in a car, saw a child's car seat in the car, and was told by
Carty that she was pregnant; this was remarkable to the witness
because Carty didn't appear pregnant.
Police then telephoned Carty and asked her to meet
with them. She told them that a car she had rented and her daughter's
car may have been used in the crime. She was placed under arrest. Then
she directed them to a location where both cars were found: the live
baby was in one, and the suffocated victim was in the back of the
other. Carty's fingerprints were in both cars. They found various
items of baby paraphernalia.
The following evidence was presented during the
In early May 2001, Carty and her husband
separated. Carty then informed him that she was pregnant with his
On the day before the murder, 15 May 2001, Carty
told her neighbor, Florence Meyers that she was pregnant and that
the baby was going to be born the next day. Meyers testified that
Carty did not appear to be pregnant.
Carty told her husband on 15 May that she was
going to have a baby boy the next day. When he met her at the police
station on 16 May after she had been arrested, he asked her if the
baby had been born and she told him "not yet."
On 15 May, Carty told Sherry Bancroft, an
employee at Public Storage, that she had indeed had the baby and
that he was at home with his father.
The victim's husband testified that while the
intruders were in his home, one of them answered his cell phone and
said, "We are inside here. Do you want it?" Then he yelled that
"she" was outside and that they had to go. The intruders left,
taking the baby with them.
Carty's cell phone records were introduced, and
showed eleven calls logged between 12:50 a.m. and 2:50 a.m. on 16
May 2001, between Carty's phone and the cell phone number that led
police to Gerald Anderson. Seven of those calls were placed between
1:09 a.m. and 1:14 a.m.
Sarah Hernandez testified that she met Carty when
they were both serving time in jail. Carty asked Hernandez to write
a letter for her because she did not want the letter to be in her
own handwriting. Carty wrote out what she wanted the letter to say,
and Hernandez copied it. Hernandez said the letter was supposed to
be from someone named Oscar. The letter said Carty was being set up
by "Chris and Zeb," who borrowed Carty's car and put the baby in it.
The letter stated they had a grudge against Carty.
Carty's mother testified that her daughter did
not mention to her that she was pregnant when they talked on 13 May
or on the following days, and Carty did not appear to be pregnant
around that time.
Conviction and appeals
Carty was convicted of murder on February 19, 2002.
On February 21, she was sentenced to death by lethal injection.
The imposition of a death sentence in Texas results
in an automatic direct appeal to the Texas Court of Criminal Appeals.
This appeal was rejected on April 7, 2004. Carty then appealed to the
Fifth Circuit Court of Appeals. This appeal was rejected on September
19, 2009. On 26 February 2010, Carty appealed to the U.S. Supreme
Court, in which the British government filed an amicus curiae brief as
a friend of the Court. However, on May 3, 2010, the Court refused to
review the case, denying certiorari. The Texas Board of Pardons and
Paroles has the option to recommend clemency to the Governor of Texas.
However, such recommendations are rare.
Carty, her lawyers and her supporters contend that
she has been unjustly sentenced to death for a murder that she did not
commit. Reprieve claims that her defence attorney did not present
mitigating evidence. They assert that no forensic evidence exists that
places her at the scene of the crime, although Carty's fingerprints
were found in the car containing the victim's body.
Carty has claimed that she was framed by three men
for her work as an informant with the Drug Enforcement Administration.
Carty stated that "...it was too difficult just to kill me, so they
hatched this plot." "Anderson, Robinson, and Williams, the other
co-defendants in the kidnapping and murder, were given prison terms
but none received the death penalty after testifying against Carty.
Baker Botts, the law firm handling Carty's appeal,
have argued that her trial attorney, Jerry Guerinot, handled her
defense in an incompetent manner. Michael Goldberg of Baker Botts
accuses Guerinot of failing to call any witnesses who might have
persuaded the jury that she did not deserve execution.
In addition, they assert that Guerinot met with
Carty for only one fifteen-minute interview. This has been rejected by
Guerinot's co-counsel. Carty also claims that on one occasion she was
interviewed without counsel being present.
Carty's case received media attention in September
2009 when her image was placed on the fourth plinth in Trafalgar
Square by her British supporters. However, there has been little media
coverage in the U.S.
Carty is presently being held at the Mountain View
Unit of the Texas Department of Criminal Justice; the unit contains
the state's female death row.
Carty was the subject of a Channel 4 documentary,
called The British Woman on Death Row. It first aired on
Channel 4 in the UK on 28 November 2011. In 2012, she appeared on a
segment of Werner Herzog's series On Death Row, broadcast on
Discovery Channel's Investigation Discovery.
High court nixes death-row appeal of woman in Houston slaying
Supreme Court rejects plea from British woman on death row
By Renée C. Lee - The Houston Chronicle
May 3, 2010
The Supreme Court has refused to review the case of a British woman
sentenced to death for killing a Houston mother and stealing her baby
The justices rejected an appeal from Linda Carty, who complained her
trial lawyers were deficient.
Twenty-year-old Joana Rodriguez had just given birth days earlier when
four men busted into her Houston apartment on May 16, 2001,
pistol-whipped her husband and abducted her and her newborn.
Rodriguez's body was later found in the trunk of a car with a plastic
bag over her head. Her arms and legs were bound with duct tape and her
mouth and nose also had been covered with tape. An autopsy revealed
Authorities said Carty, a neighbor, plotted the kidnapping because she
wanted Rodriguez's baby in a desperate attempt to keep her
Carty, 51, was found guilty of capital murder in February 2002. She is
one of 10 women on Texas death row. The British government and
anti-death penalty groups have taken up her cause.
Carty, who claims she had ineffective counsel and maintains her
innocence, was optimistic before the ruling.
“I think there's a possibility they will take it,” Carty said during
an interview last week at the Texas Department of Criminal Justice
Mountain View Unit, just west of Waco.
Texas officials will now set an execution date and Carty, a British
citizen, will become the only woman to have a slot on the state's
execution calendar. It could be years before she's actually put
It is rare for women to get the death penalty in the United States and
even rarer for them to be put death. Fifty-four women are on death row
and in the modern era (1973 to 2009) of the death penalty, only 11
women have been executed.
Part of the reason is that few women commit capital offenses, but Ohio
Northern University law professor Victor Streib, who has studied women
and death penalty for 25 years, suggests there's a secondary reason.
The justice system, Streib said, treats women differently than men.
“Women aren't sentenced to death at trial as often as you think,”
Streib said. “And once they're sentenced to death, they're more likely
to have the sentence reversed by an appellate court. As a society,
we're nervous about taking women's lives.”
That's even true in Texas, the nation's death penalty capital, he
said. The state has executed only three women since 1973. The last
female execution in the U.S. was in Texas in 2005. Francis Newton, of
Harris County, was put to death for killing her husband and children
in 1987. She sat on death row for nearly 20 years.
denied, but . . .
Most prosecutors and judges deny there's a bias, but the statistics
show otherwise, said Streib, who publishes an annual report, Death
Penalty for Female Offenders.
Harris County District Attorney Pat Lykos declined to comment on the
issue because of pending death penalty cases, but other prosecutors
who have handled capital cases involving women said they review them
the same as they do those involving men.
“Our policy has always been if we feel someone committed a crime that
merits the death penalty, we're going to seek it no matter who they
are or what their gender is,” said Bob Gill, assistant chief of the
criminal division of the Tarrant County District Attorney's Office.
Collin County's first assistant district attorney, Gregory Davis,
tried two death penalty cases against women when he worked for the
Dallas County District Attorney's Office from 1992-2002.
Darlie Routier, the North Texas mother sentenced to death for killing
her children in 1996, was one of them. Davis said he had some
hesitation about pursuing the death penalty against Routier only
because it had never been done before in the county.
“From a practical standpoint, you have to take into account the
attitude of jurors and the jurisdiction,” Davis said. “But in the
Routier case, I didn't feel that was significant because of the
terrible brutality and lack of remorse.”
He said he believes there is a public perception that women are not as
violent as men, and jurors are sometimes less likely to impose death
sentences against women. And when looking at mitigating factors, they
are also more prone to listen to emotional appeals from women than
men, he said.
“They have a hard time finding these women are a future danger,”
Streib said it's difficult to pinpoint why some women get the death
penalty and others do not because the justice system is not a rational
process. But women who kill like men (kill strangers or commit a
senseless act) or commit a brutal, bloody crime tend to get a death
sentence, he said.
Roe Wilson, who handles post-conviction writs for the Harris County
District Attorney's Office, described the facts in Carty's case as
“heinous.” Carty, who pretended to be pregnant, had planned to cut the
baby out of Rodriguez's stomach and had brought surgical supplies to
do it, Wilson said. When she learned the woman already had the baby,
she abducted her, she said.
Witnesses also said they saw Carty put the plastic bag over the
mother's head while she lay in the trunk.
Carty, who came to the United States in the early 1980s, contends that
she was framed by the other suspects who learned she was an informant
with the U.S. Drug Enforcement Agency. One of them had borrowed her
car the day of the crime, she said.
She said the state's case is fabricated and had she had proper counsel
during her trial, she wouldn't be on death row. In lower court appeals
filed by her appellate attorneys with Baker Botts law firm, Carty
claims her state-appointed attorney met with her two weeks before her
trial for only 15 minutes. He also failed to properly investigate her
case, to interview and inform her common-law husband of his right to
spousal immunity and to notify the British consulate about her case.
While the lower courts denied her requests for a new trial, they
admitted there were mistakes made in her defense, said Michael
Goldberg, a partner with Baker Botts.
The law firm is representing Carty for free at the request of the
“I believe with all my heart that she deserves to have a trial so a
jury can hear a real case with a real defense on her behalf,” Goldberg
said. “We have 20 key witnesses who were never called and could have
testified that Linda is not a murderer and not a danger to society."
In the Court of Criminal Appeals of Texas
Linda Carty, Appellant
The State of Texas
On Direct Appeal of Harris County
Price, J., delivered the opinion
for a unanimous Court.
O P I N I O N
The appellant was convicted in February
2002 of capital murder.
(1) Pursuant to the
jury's answers to the special issues set forth in Texas Code of
Criminal Procedure Article 37.071, §§ 2(b) and 2(e),
(2) the trial judge
sentenced the appellant to death.
(3) Direct appeal to
this Court is automatic.
(4) The appellant
raises eleven points of error. We
In points of error one and two, the appellant
claims the evidence of her guilt is legally and factually insufficient
because it rests exclusively on uncorroborated accomplice-witness
testimony. She would have us apply legal and factual sufficiency
standards to our review of the accomplice-witness testimony under
Article 38.14. The appellant's argument confuses a review of evidence
under the accomplice-witness rule as set out in Article 38.14 with
legal and factual sufficiency reviews.
(5) We will review the
evidence under the standard appropriate to Article 38.14.
Article 38.14 provides, "A conviction cannot be had
upon the testimony of an accomplice unless corroborated by other
evidence tending to connect the defendant with the offense committed;
and the corroboration is not sufficient if it merely shows the
commission of the offense." Under this rule, the reviewing court
eliminates all of the accomplice testimony from consideration and
examines the remaining portions of the record to see if there is any
evidence that tends to connect the accused with the commission of the
(6) The corroborating
evidence need not be sufficient by itself to establish guilt; there
simply needs to be other evidence tending to connect the defendant to
(7) We have noted that
"unlike extrajudicial confessions, testimony of an accomplice need be
corroborated only as to facts 'tending to connect the defendant with
the offense committed[,]' and not as to the corpus delicti itself."
(8) And "[t]he
non-accomplice evidence does not have to directly link the appellant
to the crime, nor does it alone have to establish his guilt beyond a
reasonable doubt . . . . [T]here must simply be some
non-accomplice evidence which tends to connect appellant to
the commission of the offense alleged in the indictment."
The appellant claims that Chris Robinson, Josie
Anderson, Marvin "Junebug" Caston, and Zebediah Combs were accomplices
as a matter of law.
(10) We will assume,
without deciding, that the appellant is correct. Even if we set aside
the testimony provided by these witnesses, the evidence sufficiently
tends to connect the appellant to the offense to satisfy the
requirements of Article 38.14. The following is a summary of the
The victim, Joana Rodriguez; her husband, Raymundo
Cabrera; and Cabrera's cousin, Rigoberto Cardenas lived in apartment
36 at Sandy Glen Apartments in Houston. The victim's and Cabrera's
son, Ray, was born on May 12, 2001. The victim and the baby came home
from the hospital the following day. At about 1:00 a.m. on May 16,
2001, four men kicked in the victim's and Cabrera's front door,
demanded marijuana and money, ransacked their apartment, and tied up
Cabrera and Cardenas. The intruders took about $800 in cash and left
with the victim and the baby. Before leaving, one of the men answered
his cell phone and said, "We are inside here. Do you want it?" Then he
yelled that "she" was outside and that they had to go. After they
left, Cardenas managed to free himself and untie Carbrera. They called
Police were dispatched to the scene at about 1:15
a.m. In the following hours, another tenant in the complex, Florence
Meyers, told police about an encounter with the appellant that seemed
suspicious. The appellant lived in apartment 38, and Meyers lived in
apartment 40. On the evening of May 15, 2001, Meyers saw the appellant
sitting in a car in the parking lot of the apartment complex. Meyers
identified the car as the same one that was later identified as the
Pontiac Sunfire rented in the appellant's daughter's name. The
appellant invited Meyers to sit and visit with her. The appellant told
Meyers that she was pregnant and that the baby was going to be born
the next day. There was an infant's car seat in the back seat. Meyers
testified that the appellant did not appear to be pregnant.
Based on their conversation with Meyers, police
contacted the appellant on her cell phone and asked her to meet them
at the apartment complex. She told police she was driving her
"daughter's brown car" and that it would take about 30 minutes to
reach the apartments. The appellant arrived in another vehicle driven
by a friend of her husband. The appellant agreed to accompany the
police to the station. There, the appellant gave a statement and told
police that she had loaned her rental car and her daughter's car to
some people she believed might be involved in the instant offense.
After the appellant was placed under arrest, she directed officers to
a house at 6042 Van Zandt Street. A black Chevrolet Cavalier belonging
to the appellant's daughter, Jovelle Carty, and a tan or gold Pontiac
Sunfire rented in Jovelle's name were both parked at the house. The
victim's baby was found alive in the Cavalier. The victim's body was
found in the trunk of the Sunfire. Her arms and legs were bound with
duct tape, her mouth and nose were also taped, and she had a plastic
bag over her head which appeared to be taped around the bottom. The
cause of death was determined to be homicidal suffocation. The
appellant's fingerprints were found in both cars. Inside the cars, the
officers found duct tape, nylon rope, Lysol spray, baby clothes, baby
blankets, a diaper bag containing infant formula, and other baby
paraphernalia. The diaper bag also contained a live round of
ammunition of the type and size that could be fired from a .38 caliber
gun. A .38 caliber gun was found by police in a drawer inside the
house at 6042 Van Zandt Street.
The appellant's husband, Jose Corona, testified
that in the two-and-a-half to three years that he and the appellant
had lived together, the appellant had told him three times that she
was expecting a baby. In the first two instances, she eventually told
him that she had miscarried. The appellant did not allow Corona to go
with her to any prenatal doctor visits and Corona believed the
appellant had lied about the pregnancies. At the beginning of May
2001, Corona decided to leave the appellant. When he told her he was
leaving, the appellant told him she was pregnant again. Corona did not
believe her and moved out. The appellant continued to call Corona
repeatedly throughout the month of May. She called him on May 15, and
told him she was going to have a baby boy the next day. On May 16, she
called and told him she was going to have the baby that day. When
Corona saw the appellant later that day at the police station, he
asked her if the baby had been born already and she told him "not
yet." Corona found out later that the appellant had never been
pregnant. During the early part of May 2001, Corona saw the appellant
in the possession of a gun that he identified as similar in appearance
to the .38 caliber gun officers found at the house on Van Zandt.
After Corona moved out in early May, the appellant
began moving her things to a storage unit because the apartment lease
was to terminate at the end of the month.
Sherry Bancroft, an employee at Public Storage,
testified that the appellant had an existing storage unit in their
facility and rented a second one on May 10. She had known the
appellant for several months and saw nothing different about her
appearance on that day. On May 12, the appellant rented a third unit,
and told Bancroft that she was expecting a baby boy who would be born
that day. She told Bancroft that she was already in labor. The
appellant returned on May 15 around 6:30 p.m. and was there until at
least 7:30 p.m. She told Bancroft that she had indeed had the baby and
that he was at home with his father. She retrieved a baby blanket and
two baby outfits from one of her units. Bancroft identified the car
that the appellant was driving on the evening of May 15 as the Pontiac
Sunfire. Two additional witnesses testified that they knew the
appellant and that she had told them in the days immediately before
the offense that she was expecting a baby.
The appellant's cell phone records led police to
Gerald "Baby G" Anderson who eventually gave a statement and was
charged with capital murder in this case. The appellant's cell phone
records were introduced, reflecting eleven calls logged between 12:50
a.m. and 2:50 a.m. on May 16, 2001, between the appellant's phone and
the cell phone number that led police to Anderson.
(11) Seven of those
calls were placed between 1:09 a.m. and 1:14 a.m.
Sarah Hernandez testified that she met the
appellant when they were both serving time in jail. The appellant
asked Hernandez to write a letter for her because the appellant did
not want the letter to be in her own handwriting. The appellant wrote
out what she wanted the letter to say, and Hernandez copied it.
Hernandez said the letter was supposed to be from someone named Oscar.
The letter said something about the appellant being set up by "Chris
and Zeb," who borrowed the appellant's car and put the baby in it. The
letter stated they had a grudge against the appellant because she was
black and because the appellant's brother, who was a DEA agent, had
The appellant's daughter, Jovelle, testified that
she rented the Pontiac Sunfire at the appellant's request to assist in
moving some of the appellant's things to the storage unit. Jovelle
also testified that in the last three years, the appellant miscarried
three times and that baby items were purchased in anticipation of
these babies. Jovelle was in Florida at the time of the offense, and
the appellant had permission to drive her daughter's black Cavalier
while she was gone.
The appellant's mother, Enid Carty, testified that
the appellant did not mention to her that she was pregnant when they
talked on May 13 or on the following days, and the appellant did not
appear to be pregnant around that time. The appellant had told her the
previous January that she had had a miscarriage. Enid also testified
that the appellant arrived at her house in a taxi cab between 8:00 and
9:00 a.m. on May 16, 2001, took the keys to Jovelle's black Chevrolet
Cavalier, and drove off in the Cavalier.
Based upon the above discussion, the following
non-accomplice evidence, taken as a whole, is sufficient to "tend to
connect" the appellant to the commission of the victim's kidnapping
1. The appellant lived two apartment numbers down
from the victim in the same complex.
2. One of the accomplices answered a cell phone
during the commission of the offense and stated that "she" was outside
and asked her if she wanted "it."
3. The appellant's cell phone records reflect seven
calls made between the appellant's phone and a phone that may have
been used by accomplice Anderson between 12:50 a.m. and 1:14 a.m on
May 16, 2001. Cabrera testified that the intruders broke in around 1
a.m., and police testified they were dispatched to the scene around
4. The appellant was obsessed with having a baby
and lied about being pregnant to many people, including her daughter
and husband. In the days before the offense, the appellant told many
people that she was pregnant and that her baby was due in the next
couple of days. The appellant told many people that she expected to
deliver a baby boy on the day before the kidnapping. On the evening of
May 15, 2001, about 5 hours before the kidnapping, the appellant told
the manager at her storage unit that she had already delivered the
baby and that he was at home with his father.
5. The appellant retrieved a baby blanket and two
sets of baby clothes from her storage unit on the evening of May 15,
2001. She was driving the Pontiac Sunfire rental car in which the
victim's body was found the next evening.
6. Hours before the kidnapping, the appellant was
sitting outside of the apartment complex in the Pontiac Sunfire and
there was an infant's car seat in the back.
7. The appellant arrived at her mother's house in a
taxi around 8 or 9:00 a.m. on May 16, and borrowed her daughter's
8. The appellant told police that she might have
loaned cars to people involved in the instant offense.
9. On the evening of May 16, the appellant led
police to the house where the Cavalier and the Sunfire were located.
The baby was found in the Cavalier and the victim was found in the
trunk of the Sunfire. The appellant had driven both of these cars in
the days and hours before and after the kidnapping.
10. The appellant was seen in possession of a gun
similar in appearance to the gun found at the house on Van Zandt.
Ammunition fitting such gun was found in the diaper bag which was
found in the Cavalier with the baby.
11. The appellant asked a fellow inmate to write a
letter which represented that it had been written by someone else and
stated that the appellant had been set up.
Thus, even without the testimony of the witnesses
who were potentially accomplices, the evidence "tends to connect" the
appellant to the commission of the crime.
Points of error one and two are overruled.
In points of error three and four, the appellant
claims that the evidence is legally and factually insufficient
to establish that Anderson, Caston, and Combs were not
accomplices. The appellant argues these points together with her first
and second points, on the theory that the evidence does not
sufficiently "tend to connect" the appellant to the crime without the
testimony of these accomplices. Because we hold the evidence tends to
connect the appellant to the crime without relying on the testimony of
any of the alleged accomplices, points of error three and four are
moot. We also note that legal and factual sufficiency reviews are
appropriate for assessing the sufficiency of the evidence to support
an element of the offense charged.
(13) Whether a
witness is an accomplice is not an element of the offense. Points of
error three and four are overruled.
In points of error five and seven, the appellant
claims the trial court abridged her right to confrontation as embodied
in the Sixth Amendment to the United States Constitution when it
refused to permit defense counsel to cross-examine Robinson and Combs,
alleged accomplice-witnesses, using their prior inconsistent
videotaped statements. During the cross-examinations of Robinson and
Combs the appellant sought to play each witness's entire videotaped
statement to refresh his memory and to impeach him with
inconsistencies. The trial court denied the appellant's requests to
play the statements before the jury.
The right to confrontation might be denied when
appropriate cross-examination is improperly limited.
(14) However, a trial
court maintains broad discretion to impose reasonable limits on
cross-examination "to avoid harassment, prejudice, confusion of the
issues, endangering the witness, and the injection of cumulative or
Here, the appellant was permitted to impeach
Robinson and Combs with the contents of their statements made to the
police. Additionally, she was permitted to (and did) call to the stand
the officers who took the statements to question them about
inconsistencies between the witnesses' statements and their trial
testimony. The appellant sought to have the videotapes played in their
entirety and did not make any effort to edit the tapes or identify
which portions of the tapes were appropriate for impeachment. It is
not the responsibility of the trial court "to sort through and edit
the videotapes in order to determine which statements might impeach
Moreover, the appellant does not demonstrate the
proper predicate was laid to establish the impeachment value of the
tapes. Under the Rules of Evidence, the use of extrinsic evidence of a
prior inconsistent statement "is contingent upon the witness's
response when confronted with the alleged inconsistent statement."
(17) Under former
Rule of Criminal Evidence 612(a), which was identical to the present
(18) we laid out the
predicate to the admission of the inconsistent statement:
The proper predicate for impeachment by prior
inconsistent statement requires that the witness first be asked if he
made the contradictory statement at a certain place and time, and to a
certain person. If the witness denies making the contradictory
statement, it can then be proved by the prior inconsistent statement.
If the witness admits the prior inconsistent statement, however, the
prior statement is not admissible.
The rationale behind the predicate is that "[w]hen
the contradictions are confessed, evidently there is no use or purpose
for the impeaching testimony; for this work [the witness] performs
The appellant argues that the trial court did not
permit her to lay the proper predicate because it would not allow her
to play the videotaped statements for the witnesses to review.
However, Rule 613(a) does not require that a witness be allowed to
review a prior inconsistent statement, but only that a prior
inconsistent written statement be provided to opposing
counsel on request.
Our review of the record reveals that, while the
witnesses equivocated about making some of the alleged prior
inconsistent statements, they conceded and explained most of the
claimed inconsistencies. The appellant does not point to any statement
by the witnesses at trial denying a statement that was actually made
on the tape. She therefore fails to show that the videotaped
statements had impeachment value or that her right to
cross-examination was improperly limited by the trial court. Points of
error five and seven are overruled.
In her ninth point of error, the appellant claims
the trial court abridged her right to confrontation as embodied in the
Sixth Amendment to the United States Constitution when it refused to
permit defense counsel to cross-examine Caston, an alleged
accomplice-witness, using his prior inconsistent videotaped statement.
The appellant did not offer Caston's videotaped statement for record
purposes. By failing to make an offer of proof, the appellant failed
to preserve this issue for review.
(22) Point of error
nine is overruled.
In points of error six, eight, and ten, the
appellant claims the same violations under the Texas Constitution that
are alleged in points of error five, seven, and nine under the United
States Constitution. Because the appellant does not provide separate
argument and authority under the Texas Constitution, she has forfeited
(23) Points of error
six, eight, and ten are overruled.
In her eleventh point of error, the appellant
claims her counsel was ineffective by failing to make an offer of
proof of Caston's videotaped statement. To establish a claim of
ineffective assistance of counsel, the appellant must show (1) that
counsel's performance was deficient; and (2) that the deficient
performance prejudiced the appellant.
(24) In proving
prejudice, the appellant must show a reasonable probability that but
for counsel's errors, the result of the proceeding would have been
(25) Review of
counsel's performance is highly deferential and there is a strong
presumption that counsel's performance fell within the wide range of
reasonable professional assistance.
During direct examination, Caston conceded that he
had lied in making his videotaped statement and agreed that he did not
tell the police everything he knew because he was afraid of going back
to prison. On cross-examination, defense counsel questioned Caston
about his videotaped statement. Caston did not disagree with defense
counsel's characterizations of his responses on the videotaped
statement, and gave explanations for those that were confusing or
otherwise inconsistent with his testimony. The appellant does not
point to any place in the record where Caston denied an inconsistency
between his testimony and his videotaped statement.
As discussed previously, when a witness admits to a
prior inconsistency, extrinsic evidence of the inconsistency is not
(27) In the absence
of argument and authority demonstrating that the extrinsic evidence
was admissible, the appellant fails to demonstrate that counsel's
performance was deficient in failing to offer the extrinsic statement
for record purposes. In addition, the appellant fails to prove how the
outcome of her appeal would have been different had counsel preserved
the issue. Point of error eleven is overruled.
The judgment of the trial court is affirmed.
Delivered: April 7, 2004
Do Not Publish
1. Tex. Penal Code §19.03(a).
2. Unless otherwise indicated,
all references to Articles refer to the Texas Code of Criminal
3. Tex. Code Crim. Proc. Art.
4. Tex. Code Crim. Proc. Art.
37.071 § 2(h).
5. See Cathey v. State,
992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999).
6. Solomon v. State, 49
S.W.3d 356, 361 (Tex. Crim. App. 2001).
8. Gribble v. State,
808 S.W.2d 65, 71 n.13 (1990).
9. McDuff v. State, 939
S.W.2d 607, 613 (1997) (internal citations omitted) (emphasis
10. Specifically, the defendant
claims that Robinson was an accomplice as a matter of law and that the
evidence was legally insufficient to establish that Anderson, Caston,
and Combs were not accomplices. In the alternative, the appellant
claims that Anderson, Caston, and Combs were accomplices as a matter
11. Hearsay objections
precluded testimony as to the name of the person to whom the phone was
registered, but testimony suggested that the phone was used by
Anderson or was at least associated with Anderson.
12. Tex. Code Crim. Proc. Art.
13. See Malik v. State,
953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997).
14. Carroll v. State,
916 S.W.2d 494, 497 (Tex. Crim. App. 1996) (internal citation
15. Lopez v. State, 18
S.W.3d 220, 222 (Tex. Crim. App. 2000).
16. See Willover v. State,
70 S.W.3d 841, 847 (Tex. Crim. App. 2002).
17. Clark v. State,
881 S.W.2d 682, 701 n.11 (Tex. Crim. App. 1994); Tex. R. Evid. 613(a)
(stating that extrinsic evidence of an inconsistent statement is not
admissible if the witness unequivocally admits having made the
18. Current Rule of Evidence
613(a) provides in pertinent part:
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 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.
19. McGary v. State,
750 S.W.2d 782, 786 (Tex. Crim. App. 1988) (internal citations
omitted) (internal quotation marks omitted).
20. Ibid. (quoting
Walker v. State, 17 Tex. App. 16 (1884)).
21. Tex. R. Evid. 613(a)
(providing "[i]f written, the writing need not be shown to the witness
at that time, but on request the same shall be shown to opposing
22. Tex. R. App. Proc. 33.1.
23. Heitman v. State,
815 S.W.2d 681, 690 n.22 (Tex. Crim. App. 1991).
24. Thompson v. State,
9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
27. Tex. R. Evid. 613(a).