OPINION ON REMAND
This сase of aggravated sexual assault of a child comes to us on remand. On original submission, we considered Appellant Dionicio Vega Garza’s first point and, relying on
Davis v. State,
CQ and her mother Susan lived together in a trailer home. Susan began dating Appellant during the summer of 1994. One afternoon, Susan went to the store to buy some cigarettes and left CQ and Appellant alone together. While Susan was away, Appellant sexually assaulted CQ by rubbing his penis against her and by penetrating her female sexual organ. CQ was seven years old at the time.
II. POINTS ON APPEAL
In his second point 1 , Appellant complains that, during voir dire, the State improperly questioned prospective jurors by attempting to bind them to a specific set of facts. In point three, he insists that he was improperly restricted from asking CQ in court whether she had ever accused another person of committing the offense Appellant was charged with. Appellant also complains that he was not allowed to impeach a State’s witness by questioning her about a prior inconsistent statement. The fourth point contends that the trial court erred by sustaining the State’s objection when Appellant tried to ask about other suspects. Fifth, Appellant asserts it was error to exclude a document from evidence that a State’s witness had used in preparation for her testimony. In point six, Appellant questions the court’s refusal to let him impeach CQ’s crеdibility. Appellant argues in point seven that the trial court should not have allowed the State to impeach him with his prior inconsistent statements made to a Child Protective Services (“CPS”) employee. In point eight, Appellant argues that the court should have instructed the jury to find whether his statements to the CPS worker were voluntary. Last, Appellant claims that during closing argument the prosecutor improperly commented on Appellant’s failure to present a witness who could contradict CQ’s testimony.
A. QUESTIONING DURING VOIR DIRE
As a general rule, a trial judge is afforded broad discretion in conducting and controlling the voir dire proсeeding.
See Shipley v. State,
In voir dire, a proper question seeks to discover a juror’s views on an issue that is applicable to the case at bar.
See Shipley,
Appellant objected that the following portion of the prosecutor’s voir dire was an impermissible attempt by the State to bind the veniremember to a specific set of facts:
One last thing, medical testimony. The State is not required to bring any medical testimony. Okay? Let me ask Ms. Bridges. Would you require the State to bring you any medical evidence?
Although a party may not bind a juror to a specific set of facts,
see White,
Appellant also challenges the following portion of the pro'secutor’s voir dire that attempted to learn whether any of the veniremembers would have a problem believing a child witness. Appellant asserts that thе statements and questions improperly committed the venire to a specific set of facts:
Our Constitution says — both the Texas Constitution and the Federal Constitution — that a defendant has an absolute right to face their accuser whether they are three or they are 93. Okay? So, you know, more likely than not you will hear from a child. Okay? So now my questions are kind of going along the lines of — what we are trying to do, both the State and the Defense, are trying to get fair and impartial individuals that don’t have preconceived notions.
And maybe because of someone’s life experience, because they have children or they don’t have children, they think, you know what, any kid, any child, if their head isn’t above this railing when they walk in here, I am not going to believe a word they say. Is there anybody that feels that way?
Or maybe just because they are a child, a little person, under this height, that you know what, if you bring somebody in shorter than this — let’s say a particular age, or under seven, under seven, I’m sorry, I can’t believe them.
Nevertheless, those inquiries by the prosecutor were proper for the purpose of learning whether any veniremember had bias
6
or prejudice
7
against a child’s testimony. The testimony of a child victim by itself is sufficient to support a conviction for sexual assault,
see Ruiz,
B. RIGHT OF CONFRONTATION AND IMPEACHMENT OF WITNESSES
The Sixth Amendment insures that in “all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. Implicit within this light, as applied to the states via the Fourteenth Amendment, is the defendant’s right of cross-examination.
See Davis v. Alaska,
1. Right to Cross-Examine CQ
Appellant insists that the trial court abused its discretion by denying his Sixth Amendment right to confront CQ by asking her whether she had ever claimed that someone other than Appellant had sexually abused her. Appellant questioned CQ about this matter out of the jury’s presence and CQ testified that Appellant was the only person she had accused of molesting her. She also swore that she did not think she had ever stated otherwise. Appellant neither elicited any controverting testimony from any witness nor established that CQ had accused any other person.
Before a witness may be impeached with a prior inconsistent statement, the party offering the impeaching testimony must establish that the prior statement was made by the witness whom the party is now trying to impeach.
See
Tex.R. Evid. 613;
Bigby v. State,
2. Right to Cross-Examine Kitty Newbern
Appellant also argues that the trial court abused its discretion by denying his Sixth Amendment right to confront Kitty Newbern
8
by cross-examining her before the jury about a prior inconsistent statement she allegedly made. Newbern testifiеd outside the jury’s presence that Marlene Tucker
9
never told her that CQ had been held down by her mother while Appellant sexually assaulted her.
10
New-
Although Newbern admitted that, because she failed to consult her file notes, she testified erroneously at the parental-rights termination hearing, she correсted her hearing testimony by stating that her notes confirmed that a CPS worker named Paul Scott, not Tucker, told her that CQ had been héld down and sexually molested. Newbern testified that CQ never told her that CQ’s mother held CQ while Appellant sexually assaulted her. It is improper to impeach a witness on an immaterial or collateral matter. See
Flannery v. State,
C. ALLEGATIONS OF ADDITIONAL SUSPECTS
Appellant insists that the trial court abused its discretion by erroneously restricting him from questiоning Detective Murphy about other suspects. Outside the jury’s presence, Detective Murphy testified that he had received third-hand information that CQ had been molested by a male in her home and that everyone assumed that it was Christopher Reinarz. The trial court sustained the State’s objection, ruling that the testimony was irrelevant. See Tex.R. Evid. 401. Appellant argues on appeal that any evidence of another suspect would certainly be relevant.
The burden of demonstrating the relevancy of proposed testimony rests on the proponent of the evidence.
See Holt v. State,
Detective Murphy never testified that CQ had identified Reinarz as her molester or that any physical or forensic evidence pointed to him. Detective Murphy simply stated that he had only assumed that Rein-arz was a suspect and that he had no basis for his assumption other than inadmissible hearsay. While relevant evidence is always presumed to be admissible, irrelevant evidence is never admissible.
See
Tex.R. Evid. 402. Therefore, the trial court did not abuse its discretion by excluding Detective Murphy’s testimony regarding Reinarz as a suspect because it could have found that there was no connection other than speculation based on inadmissible hearsay finking Reinarz as a possible suspect.
See id
401, 402;
Nolen v. State,
D. WRITINGS USED TO REFRESH RECOLLECTIONS
' When a witness uses a writing to refresh her memory before or during examination, the adverse party may demand to inspect the writing, to cross-examine the witness thereon, and to intro
Appellant argues that the trial court abused its discretion by excluding from evidence an intake summary that Kelly Hutchinson, a CPS supervisor, reviewed and relied on during her testimony for the State. On cross-examination, Appellant questioned Hutchinson abоut the sexual abuse allegations she had investigated. Hutchinson testified that there were allegations of sexual intercourse between Appellant and CQ. Appellant then tried to introduce two sentences of the intake report: “[CQ] told her foster mother that mother’s boyfriend had had sexual intercourse with her” and “[Mother] knows about this in that [Mother] admits to walking in on Johnnie making [CQ] perform oral sex on him.” Because Appellant had a right to introduce the relevant portions of the writing under Rule 612, the trial court erred by excluding the portions that related to Hutchinson’s testimony.
See Robertson,
Because the trial court’s error is not constitutional, we will examine whether the error affected Appellant’s substantial rights.
See
Tex.R.App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury’s verdict.
See King v. State,
Due to the fact that Rule 44.2(b) is virtually identical to Rule 52(a) of the Federal Rules of Criminal Procedure,
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we look to federal caselaw for guidance in applying this rule.
See Mosley v. State,
We cannot say that the trial court’s-failure to admit the writing relied on by Hutchinson had a substantial influence on the jury’s verdict. The sentences Appellant sought to introduce in no way contradicted the substance of Hutchinson’s testimony. There was testimony that Appellant was CQ’s mother’s boyfriend and that they often referred to him as “Johnny.” CQ testified that Appellant penetrated her female sexual organ with his penis. Hutchinson would not have been impeached by the report, and therefore, the trial court’s error in excluding the report did not have a substantial or injurious effect on the jury’s verdict and did not affect Appellant’s substantial rights.
See King v. State,
Appellant contends that the trial court abused its discretion by refusing to allow a witness to testify about CQ’s reputation for truthfulness. Appellant asserts that he asked Debra Davis, who was one of CQ’s counselors, to testify about CQ’s reputation for truthfulness and that the court’s sua sponte determination that CQ was truthful was an abuse of discretion.
Once a witness has testified, evidence pertaining to the witness’ bad reputation for truthfulness may be introduced to attack that witness’ credibility.
See
Tex.R. Evtd. 608(a). A reputation witness’ testimony cannot be based upon specific acts of conduct of the witness whose credibility is being attacked but rather upon a synthesis of “observations and discussions which results in a conclusion as to the individual’s reputation.”
Adanandus v. State,
Appellant attempted to introduce Davis’ testimony to establish that she had heard that CQ had a bad reputation for being truthful. Although Davis admitted that she had heard that CQ was untruthful, Davis stated that CQ’s foster father was the only person whom she had heard that from. Davis also swore that she personally believed that CQ was truthful and that CQ’s foster father’s credibility was suspect. Becausе Davis had only heard about CQ’s untruthful nature from one person, the testimony Appellant sought to elicit from her was not based upon a “synthesis of observations and discussions.”
Adanandus,
F. THE RIGHT TO COUNSEL AND APPELLANT’S INTERVIEW IN JAIL
1. Fifth Amendment Claim
Kelly Hutchinson, a CPS employee, met with Appellant on January 17,1996 while he was an inmate of the Tarrant County Jail. At that time, the court had appointed counsel to represent him. Hutchinson told Appellant she was there to investigate the allegations of sexual abuse concerning CQ. During their exchange, Appellant admitted that hе had awakened and found CQ in bed with him. Appellant also denied sexually abusing CQ, but he stated that if any sexual contact had occurred, it must have been when he was asleep. Appellant called Hutchinson later that day or the following day and asked her if she would meet with him again. Hutchinson agreed and during this second interview, Appellant reiterated that if any sexual contact occurred, it was while he was sleeping.
Before admitting this testimony, the trial court held a
Jackson v. Denno
12
hearing and found that Hutchinson was not acting as a law enforcement officer when she interviewed Appellant in jail and that his statements were voluntary. The court then proceeded tо allow Hutchinson’s testimony about the jail interview, but only if Appellant denied what he told her in jail. Appellant challenges the trial court’s ruling by arguing that Hutchinson’s testimony was improper impeachment testimony and should not have been allowed because Hutchinson failed to warn Appellant before interviewing him. The Fifth Amendment provides that no person shall be denied fife, liberty, or property without due process of law.
See U.S.
Const, amend. V. This privilege serves to protect persons
Miranda
holds that when a criminal suspect is placed in custody, law enfоrcement personnel must comply with certain procedural safeguards in order to protect the suspect’s privilege against compulsory self-incrimination under the Fifth Amendment.
See id.
at 444,
A person who becomes an employee of a regulatory agency such as CPS does not automatically acquire the status of a law enforcement officer.
See e.g., Cates v. State,
In
Paez,
the Court of Criminal Appeals held that an investigator with the Texas Department of Human Resources (“DHR”) was not an extension of the police because she was not conducting a child abuse investigation at the time the defendant inculpated herself.
See Paez,
The Court of Criminal Appeals was faced with an analogous situation five years later. However, the court declined to adopt a bright line rule and distinguished
Paez
on its facts.
See Cates,
Hutchinson testified on direct-examination that her function as a CPS investigator was to investigate allegations of abuse or neglect and to ultimately act in a manner that would provide safety for the child. She stated that the focus of her investigation was to find out what happened to CQ and she explained to Appellant that she was there because of a civil proceeding pertaining to the allegations of sexual abuse against him. On cross-examination, Hutchinson testified that she had been
Part of Hutchinson’s job as a CPS worker was to report allegations of sexual abuse. In fact, she contacted the police in November 1995 with accusations that Appellant had sexually assaulted CQ, which ultimately led to his arrest. Because the primary factors courts should consider when reviewing the record are the investigator’s motivations and the purpose for conducting the interview, see id. at 172-73, we conclude thаt Hutchinson was acting as an extension of the police. Although Hutchinson swore that she was not associated with law enforcement in any manner and that she was not licensed to carry a firearm, unequivocal testimony by a witness that he or she is not a law enforcement officer or that he or she does not have the power to arrest is not dispositive. See id. at 173.
Additionally, we conclude that Hutchinson deliberately elicited incriminating information in violation of Appellant’s Fifth Amendment right against self-incrimination and, as a general rule, any evidence that is obtained illegally is inadmissible.
See
U.S. Const, amend. IV. But, where a defendаnt’s direct examination is incompatible with the evidence, the self-incriminating statements may be used to impeach the defendant’s credibility as long as they were made voluntarily.
See United States v. Havens,
Appellant testified that his statements were involuntary, but after reviewing the record as a whole, it is apparent that his statements were voluntary and not the result of any threat, force, or coercion by Hutchinson. Appellant testified that he agreed to speak with Hutchinson and that she did not threaten him in any manner. Hutchinson was unarmed and she did not promise Appellant anything in exchange for his cooperation. She identified hеrself as a CPS worker and explained that she was there to investigate allegations of sexual abuse. While Appellant claims that he would hot have spoken with Hutchinson had he known that she would inform the district attorney’s office of what he said, he admitted that he spoke to Hutchinson because he believed that she was going to help him. A defendant’s subjective belief is insufficient to render his statement involuntary,
see Lykins v. State,
2. Sixth Amendment Claim
Appellant also contends that his Sixth Amendment right to counsel had attached at the time the statements were made. Under the Federal Constitution, the Sixth Amendment right to counsel attaches upon the commencement of adversarial proceedings.
See Kirby v. Illinois,
Generally, where the Sixth Amendment right to counsel has attached, any statement deliberately elicited from an accused is inadmissible at his trial.
See United States v. Henry,
G. JURY CHARGE
Where the voluntariness of a defendant’s statement is raised by the evidence, the jury, as the trier of fаct, should be charged to find whether the defendant voluntarily provided the statement.
See Smith v. State,
Appellant argues that the trial court erred by failing to charge the jury on the voluntariness of his statements to Hutchinson. In
Thomas v. State,
Similarly, we find that the evidence here failed to raise an issue that would require the trial court to instruct the jury on voluntariness as required by article 38.22, section 7 of the Texas Code of Criminal Procedure. Appellant admitted that when he spoke with Hutchinson, he was not under the impression that he had to speak with hеr. Appellant agreed to speak with her without any threats or promises from her. Appellant admitted that he called Hutchinson the day after her first visit with him and asked her to meet with him again. Appellant admitted to speaking with Hutchinson freely, hoping that she might help him. In light of these facts, the trial court did not err by refusing to submit an instruction to the jury regarding the voluntariness of Appellant’s statement. We overrule point eight.
H. JURY ARGUMENT
Appellant argues that the State improperly commented on his failure to bring forth testimony during the guilt or innocence phase of the trial. Permissible jury argument falls within one of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) pleas for law enforcement; and (4) response to opposing counsel.
See Felder v. State,
In reviewing complaints about comments made during closing argument, appellate courts review the comments within the context of the entire argument.
See Drew v. State,
The theme of Appellant’s closing argument alleged the inconsistency of the State’s case. Appellant argued that the State had not met its burden of proving his guilt beyond a reasonable doubt because the State’s evidence was inconsistent with his alleged guilt. For example, Appellant argued that CQ could not remember her age at the time of the abuse or how many times the abuse had occurred.
The State responded on rebuttal that Appellant’s own testimony was inconsistent and that CQ had named Appellant in a videotape as the perpetrator. The prosecutor’s rebuttal argument said that if CQ’s allegations were inconsistent, Appellant would have produced a witness to attest to that fact. Appropriately, the trial court instructed the jury to disregard that portion of the prosecutor’s argument. Almost any improper argument can be cured by such an instruction.
See id.
The State does not exceed the bounds of permissible jury argument by commenting on a defendant’s failure to call competent and material witnesses.
See Rousseau v. State,
III. CONCLUSION
Because we have overruled each оf Appellant’s remaining points, and because there is no error requiring reversal of his conviction, we affirm the trial court’s judgment.
Notes
. We addressed point one in our original opinion.
. It is well within a trial court’s discretion to impose reasonable restrictions on the exercise of voir dire examination.
See Clark v. State,
. For example, a potential juror may be biased against the law. This is true where he or she refuses to consider or apply the relevant law.
See Sadler v. State,
. Prejudice means the forejudgment of an issue or possessing of a preconceived opinion concerning someone’s guilt or innocence. See Black’s Law Dictionary 1179 (6th ed.1990).
.The denial of a proper question to the veni-re is always reversible error.
See Maddux,
. See supra note 3.
. See supra note 4.
. Newbern, a nurse at Catholic Charities, performed a sexual assault exam on CQ after she made her outcry.
. Tucker was CQ’s foster mother. References to CQ’s "mother” are to her biological mother.
.Tucker also denied making such a statement to Newbern and testified that CQ never told her (Tucker) that.
. Rule 52(a) states: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Fed. R.Crim.P. 52(a).
.
Jackson v. Denno,
. Hutchinson eventually turned over the file to the district attorney’s office.
. The Supreme Court has not established a bright line marking when adversarial proceedings begin.
See United States v. Gouveia,