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Click here for the full text of this decision FACTS:The appellant was charged with sexual assault and indecency with a child for having consensual sexual relations with Nailah, a minor. The appellant did not deny having such a relationship, but his defense was that Nailah was at least 17 years old at the time. The trial court admitted, over the appellant’s objection, several out-of-court statements made by Nailah to two different witnesses as prior consistent statements under Texas Rule of Evidence 801(e)(1)(B). After the appellant was convicted, he appealed and claimed that the trial court erred in admitting these statements. The court of appeals stated that, although hearsay is generally not admissible, a prior consistent statement is not hearsay if it is “consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” The court of appeals held that a proper predicate must be laid that “illustrates a charge of fabrication has been made.” Then, “the prior consistent statement must have been made at a time before the declarant had a motive to testify falsely.” The court of appeals stated that merely questioning “a witness’s recollection of events or dates through rigorous cross-examination does not equate to a charge of fabrication. To hold otherwise subjects all defendants who challenge the memory of prosecution witnesses to the improper admission of prior consistent statements.” The court of appeals rejected the state’s argument that the appellant’s cross-examination suggested both recent fabrication and improper influence or motive, and the court of appeals held that the trial court erred in admitting hearsay testimony. Finding that error harmful, the court of appeals reversed appellant’s conviction and remanded the case for a new trial. HOLDING:Reversed and remanded. Rule 801(e)(1)(B) gives substantive, nonhearsay status to prior consistent statements of a witness “offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” The rule sets forth a minimal foundation requirement of an implied or express charge of fabrication or improper motive. The appellant argues that no fair reading supports the state’s assertion that the defense made any charge of recent fabrication of improper motive. According to the appellant, the state relied upon a single cross-examination question by defense counsel (“Your lawyer tell you that you knew that?” referring to the date of her first sexual encounter with appellant as a time before her 17th birthday) as raising a charge of recent fabrication. This question made clear what had already been implied by defense counsel’s earlier questions: that Nailah’s lawyer had given her the dates to establish that she was underage at the time of the incidents and that she was lying when she testified that she was underage to make her case in a civil suit. The appellant’s position, at the time of final argument, was that Nailah had unsuccessfully conspired with her civil attorney to fabricate dates that would support her civil suit, and, having lost that suit, she would wreak revenge at this criminal trial by fabricating even more different dates than the ones to which she had testified during her civil deposition. The court of appeals concluded the state failed to lay a proper predicate that illustrates a charge of fabrication had been made. The court of appeals is correct that the state’s explanation to the trial judge of precisely how the defense had implied that Nailah was fabricating portions of her testimony was cryptic at best. However, the state cannot lay a proper predicate for the admission of a prior consistent statement. That predicate is laid by the content, tone and tenor of defense cross-examination. It either does or does not open the door to the admissibility of a prior consistent statement by an express or implied suggestion that the witness is fabricating her testimony in some relevant respect. In deciding that question, the trial court must consider the totality of the cross-examination, not isolated portions or selected questions and answers. A reviewing court, in assessing whether the cross-examination of a witness makes an implied charge of recent fabrication or improper motive, should focus on the purpose of the impeaching party, the surrounding circumstances and the interpretation put on them by the trial court. Courts may also consider clues from the voir dire, opening statements and closing arguments. From the totality of the questioning, giving deference to the trial judge’s assessment of tone, tenor and demeanor, could a reasonable trial judge conclude that the cross-examiner is mounting a charge of recent fabrication or improper motive? If so, the trial judge does not abuse his discretion in admitting a prior consistent statement that was made before any such motive to fabricate arose. The trial court did not abuse its discretion in admitting Nailah’s prior consistent statements. OPINION:Cochran, J., delivered the opinion of the unanimous court.

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