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Evidence Click here for the full text of this decision FACTS:The appellant was tried by a jury and convicted of aggravated sexual assault of a child. At trial, the defense attempted to introduce the testimony of a CPS caseworker who interviewed the victim about the incident. The state argued that if such testimony were allowed, the state would be entitled to introduce, in its entirety, a videotape of the interview. Although the videotape contained numerous references to uncharged offenses, the trial court ruled that the state could introduce the entire tape into evidence if the caseworker testified, under the rule of optional completeness. Texas Rule of Evidence 107. Defense counsel did not call the caseworker to testify. Appellant was convicted and sentenced to 40 years imprisonment. HOLDING:Reversed and remanded. In Jackson v. State, 992 S.W.2d 469 (Tex. Crim. App. 1999), this court explained the difficulties raised by appellate review of cases in which the defendant chose not to testify: “The Court would have been required to engage in the difficult task of speculating about (1) the precise nature of the defendant’s testimony, (2) whether the trial court’s ruling would have remained the same or would have changed as the case unfolded, (3) whether the government would have sought to impeach the defendant with the prior conviction, (4) whether the accused would have testified in any event, and (5) whether any resulting error in permitting impeachment would have been harmless.” None of these concerns would be applicable in this case, because the state did not seek to introduce the video tape to impeach the caseworker’s proposed testimony, but argued instead that the mere fact of her limited testimony in response to the proffered question would trigger the automatic admission of the video in its entirety. The state’s argument that the “opening of the door” would require the automatic admission of the entire videotape is completely without support. The plain language of rule 107 indicates that to be admitted under the rule, the omitted portion of the statement must be “on the same subject” and must be “necessary to make it fully understood.” It is true that to prove that something is not mentioned during an interview, one would need to consider the entire interview. Arguably, under this logic, the entire interview would be “on the same subject” as the proposed testimony, i.e., the absence of particular details. However, it is difficult to see how the entire videotape would be necessaryto explain or to make the testimony understood. The testimony of the live witness would establish that the weapons were not inquired about and not mentioned by M.S. during the videotaped interview. The state never contended that the tape would impeach the caseworker’s testimony, nor that her testimony would create confusion, distortion or a false impression about the interview. In fact, if the caseworker had testified as defense counsel anticipated, the evidence on the video would have bolstered her testimony. On the other hand, if the video had been admitted, the references to uncharged offenses likely would have createdconfusion, rather than helping to dispel it. This holding is consistent with the recent opinion Willover v. State, 70 S.W.3d 841 (Tex. Crim. App. 2002). In light of the information before the trial court, there is no theory of law that would require the introduction of the entire videotape into evidence without any showing of necessity by the state. As a witness to the interview, the caseworker could have impeached M.S.’s credibility by testifying to a single, narrow matter. Because the information on the videotape was in no way necessary to make that testimony fully understood, as required by rule 107, the videotape would not have been admissible. OPINION:Meyers, J.; Price, Johnson, Holcomb and Cochran, JJ., join. Womack, J., concurs. CONCURRENCE:Johnson, J. “I join the opinion of the Court. If it is true that error is not preserved in a situation such as this, despite timely objection, because the inadmissible evidence was not admitted, then error is also, by analogy, not preserved, despite timely objection, when admissible evidence is not admitted. Under this logic, a trial court may rule incorrectly with impunity merely by refusing to admit the proffered evidence, whatever its nature. If the incorrect ruling significantly affects the ability of either party to present its case, surely we do not wish to shield that incorrect ruling from review. Surely we do not want to force an appellant to chose between calling the witness and having the inadmissible inflammatory evidence admitted, to his probable detriment, or not calling the only witness who can testify about a substantive issue or an issue of mitigation.” DISSENT:Keller, P.J.; Keasler, and Hervey, JJ., join. “It is true that the State did not raise this particular preservation argument before the Court of Appeals although it raised a related preservation claim that the was rejected. And it is also true that the State did not file a cross-petition. Nevertheless, preservation of error is a systemic issue that a first-level appellate court ought to raise on its own motion and one that a discretionary review court may choose to address if warranted by the circumstances. There is no escaping that the Court’s opinion holds to be inadmissible evidence that was never admitted – making this opinion advisory in nature. And, the procedural posture of the case renders problematic any attempts to review the merits or to conduct a harm analysis. We should either dismiss the petition as improvidently granted or hand down an opinion holding that error was not preserved. Because the Court does neither, I respectfully dissent.”

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