No. 14-02-00718-CR, No. 14-02-00722-CR, No. 14-02-00724-CR
Opinion filed July 17, 2003. Do Not Publish — Tex.R.App.P. 47.2(b).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause Nos. 874,842; 895,768; 895,769
Panel consists of Chief Justice BRISTER and Justices FOWLER and FROST.
SCOTT BRISTER, Chief Justice.
A jury found appellant guilty of three felony counts of aggravated sexual assault of a child and assessed punishment at 30 years' confinement. The facts of this appeal are known to the parties, so we do not recite them here. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.1. We affirm.
1. Hearsay
First, appellant contends the trial court erred in admitting hearsay testimony. Although his brief is not entirely clear, this appears to refer to the testimony of two witnesses over objection regarding statements made by the complainant immediately after the assault. The State argues the statements were admissible as excited utterances. We review the trial court's decision for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). Technically, neither statement was hearsay. A statement is not hearsay if 1) the declarant testified and was subject to cross-examination concerning the statement, 2) the statement is consistent with the declarant's testimony, and 3) the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. Tex.R.Evid. 801(e)(1)(B). Here, the complainant testified to the statements and was cross-examined by defense counsel. Throughout the trial, appellant argued he was the victim of a false accusation motivated by marital conflict, greed, and revenge. Therefore, the trial court properly admitted the statements to show the complainant made them before she could have been improperly influenced, and were not a recent fabrication. Furthermore, as the complainant had previously testified without objection to the same facts, appellant waived any error. See Reyes v. State, 84 S.W.3d 633, 638 (Tex.Crim.App. 2002) (finding a party waives error regarding improperly admitted evidence if that same evidence is admitted elsewhere without objection). Thus, the issue is overruled. 2. Extraneous Offense
Second, appellant argues the trial court erred in admitting evidence of an extraneous offense because the State failed to provide adequate and reasonable notice. Appellant complains testimony by the complainant's therapist involving an alleged extraneous offense did not properly provide him with notice, contending the State failed to discuss each alleged aggravated sexual assault with specificity. Assuming without deciding whether the State failed to provide proper notice, appellant waived any error by failing to object when the complainant first brought out the same evidence. See Reyes, 84 S.W.3d at 638. Consequently, we overrule this issue. 3. Request for a Mistrial
In his final issue, appellant argues the trial court erred in denying his request for a mistrial after sustaining his objection to testimony by the complainant's therapist. A mistrial should be granted only when an objectionable event is so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant. See Geuder v. State, 76 S.W.3d 133, 138 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Because curative instructions are presumed efficacious to withdraw from jury consideration almost any argument that is objectionable, trial conditions must be extreme before a mistrial is warranted. See id. Here, the excluded testimony concerned allegations that were no more serious than those admitted, but simply took place in another room. Because the trial court properly instructed the jury to disregard, and that instruction is presumed effective, a mistrial was not appropriate. The trial court did not err, and thus we overrule appellant's final issue. The judgment is affirmed.