I know Harris v. New York and sec. 5 of 38.22 permits a defendant's statement otherwise inadmissible under Miranda or sec. 3 of 38.22 to be used to impeach the declarant once he testifies. But is there any other exception to the "No . . . unless" provision of sec. 3 that would permit use of the statement to rebut a defendant's charge that another fabricated her testimony?

My facts (in a case recently tried) were as follows: A is on trial for possession of a controlled substance discovered on the person of B. B (another passenger in the vehicle in which A was riding) testifies that she obtained possession of the substance from A at the time of the traffic stop (being told by A to hide his drugs as C, the driver, was stopping the vehicle). As an aside I should note that the court concluded B's testimony was subject to 38.14 (as a matter of law) although I think it can be argued she was merely an accomplice after the fact. Anyway, the officer also found in the floorboard (wrapped in a paper towel) near where A's feet would have been located a pipe- obviously designed for use of the drug in question and which contained residue thereof. After discovery of the pipe, the officer very arguably subjected all the occupants (particularly including A) to circumstances physically depriving them of freedom of movement in a significant way. Without benefit of Miranda warnings he then inquired about the pipe and received the reply from A that it "was his". While we could obviously argue about whether cases like Balentine, 71 S.W.3d at 771 might provide an escape hatch, assume arguendo that A's statement was obtained as a result of custodial interrogation.

During B's testimony, without any objection from defense counsel, she states she overhead the statement A made to the officer and recites its content (and further states she had observed A use the pipe to smoke what he contemporaneously described as "good dope"). B, however, is subjected to fierce cross-examination designed to show that she had lied about being an eyewitness to the offense of possession by A.

After such cross-examination, can the officer testify to A's admission about the pipe, despite 38.22 sec. 3? Wasn't the statement arguably "found to be true" once B came forward to describe what she had seen? Or maybe this is an example of the "other statement that may be admissible under law" spoken of in sec. 5? Would it be reversible error when the same testimony had already come in through another witness? Had any objection under 38.22 been waived?

John Stride or John Rolater or anyone else care to say whether they would have elicited the officer's testimony to "shore up" B? I recognize neither of you two spend time in the courtroom, but I think it is a fair question considering your expertise in this area of the law. I hope the issue does not recur anytime soon for me, but I would still like to know the correct answer.

I'm assuming you thought you were sunk without the PO's testimony so you did what you had to do to secure the conviction. (A strategy issue that is difficult for anyone absent from the proceedings to evaluate.)

This is probably one of those situations where waiver of the complaint is almost the same as harmless error. The defendant should have forfeited any complaint on appeal because he failed to object to the passenger's earlier testimony. Similarly, the objected-to testimony is harmless because the defendant failed to object to the same evidence introduced elsewhere. But the harmless analysis also requires an evaluation of the amount of emphasis placed on the objected-to testimony.

I am not sure there really is any support for introducing the PO's testimony. The "found to be true" is a not applicable because it is the discovery of facts previously UNKNOWN to police. Is it possible you could craft an appellate argument around the res gestae exception?

The fact that B had observed A using the pipe as "his" was not known to the officer (or anyone else other than perhaps A or C) at the time A made the statement.

It just seems to me that use of the officer's testimony should become permissible for the limited purpose of rebutting the attack on B's credibility. While the defendant did not take the stand and say B lied about the pipe, that was the net effect. And, yes, I did think this testimony was necessary to perhaps obtain a conviction (which proved an accurate assessment since the jury voted to acquit).

In your book you seem to say the res gestae exception is limited to some broader response than the interrogation calls for. But, since no one knows what "res gestae" means maybe that would be the right argument. Is there some reason why the statute has not been amended to clarify what was meant by "res gestae"?

Perhaps you should try both arguments on the merits then. Sometimes a nebulous legal expression has its value! I think of res gestae as something very similar to an excited utterance and argued the same (apparently with some sucess) before the 5th COA in Brown v. State, 92 sw3d 655 (5/03).

Since the pipe is probably contraband, you could file a forfeiture suit (ignoring for now the impracticality of forfeiting an item of nominal value), get the forfeiture heard first, establish that the pipe is his (he either defaults or shows up to defend, then either testifies OR invokes right not to incriminate himself and you win). Purpose of the forfeiture suit is basically to make the ownership issue res judicata in the criminal case. And in the civil case, maybe the owner's statement to the officer comes in as an admission by a party opponent? Could work, but would be a lot of work.