Opinion
No. 05-02-01015-CR.
Opinion Issued April 23, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 283rd District Court, Dallas County, Texas, Trial Court Cause No. F01-52293-T. Affirmed.
Before Justices JAMES, BRIDGES, and RICHTER.
OPINION
John Dallio appeals his conviction of attempted sexual performance by a child. Appellant entered a plea of no contest, and the trial court assessed punishment at fifteen years' confinement. In a single point of error, appellant argues the trial court erred in permitting the arresting police officer to voice his opinion regarding appellant's future dangerousness. We affirm the trial court's judgment. At the hearing on punishment, Dallas police detective Gregory Joe Dugger testified he had pretended to be a thirteen-year-old boy named "Tony" and had conducted internet chats with appellant via email during April and May 2001. The State introduced a lengthy exhibit containing approximately thirty emails from appellant to Tony and more than twenty replies from Tony. In the emails, appellant goes into explicit detail regarding the sexual activities in which he wishes to engage with Tony, and appellant repeatedly attempts to arrange a meeting with Tony. At the end of the punishment hearing, the trial court sentenced appellant to fifteen years' confinement, and this appeal followed. In a single point of error, appellant argues the trial court erred in admitting Dugger's testimony that appellant would be a danger to children in the future if he were allowed to communicate with them the same way he communicated with Tony. At trial, appellant objected that Dugger was giving a "lay opinion as a police officer" and was not qualified as an expert in the field of psychology qualified to give such opinion testimony. Appellant did not object to the content of Dugger's testimony but to Dugger's qualifications to offer his testimony. If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Tex. R. Evid. 701. The admissibility of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 537 (Tex.Crim.App. 2002). Here, Dugger's testimony was based on his personal experiences with appellant, who believed he was writing to a thirteen-year-old boy and planning to meet the boy in order to have sexual intercourse. Dugger testified that appellant sent "Tony" emails as part of appellant's plan to meet with Tony for immediate sexual intercourse. The record contains the text of approximately thirty emails of a predatory sexual nature which appellant sent to Tony. We conclude this evidence was rationally based on Dugger's perceptions and helpful to a determination of whether appellant would be dangerous to other children if he were permitted to communicate with them in the way he communicated with Tony. See id.; Osbourn, 92 S.W.3d at 535-36 (discussing admissibility of lay witness testimony); Fierro v. State, 706 S.W.2d 310, 317 (Tex.Crim.App. 1986) (properly qualified lay witness may offer opinion concerning future dangerousness of capital murder defendant). We overrule appellant's single point of error. We affirm the trial court's judgment.