Opinion
No. 05-04-00955-CR
Opinion issued September 28, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416th District Court, Collin County, Texas, Trial Court Cause No. 296-81036-03. Affirmed.
Before Justices FITZGERALD, LANG-MIERS and MAZZANT.
OPINION
Christopher J. Garduno appeals his convictions for aggravated sexual assault of a child and indecency with a child. In two issues, he argues that the trial court erred in failing to properly admonish him and in allowing two witnesses to state the punishment he should receive. We affirm the trial court's judgment.
Background
Appellant was charged in a two count indictment with aggravated sexual assault of a child and indecency with a child. He pled guilty to both counts of the indictment and elected to have the jury assess punishment. The jury returned with a punishment verdict of life on count one of the indictment and 20 years in prison on count two. This appeal followed.Sex Offender Registration Admonishment
In his first point, appellant argues that the trial court failed to admonish him regarding the sex offender registration requirements. Article 26.13(a) of the Texas Code of Criminal Procedure requires the trial court to admonish a defendant, either orally or in writing, of the sex offender registration consequences of his plea. Tex. Code Crim. Proc. Ann. art. 26.13(a)(5), (d). When the trial court fails to apprize a defendant of the registration consequences of his plea it violates the mandatory language of article 26.13(a). The question then becomes whether the error requires reversal. This requires us to conduct a harm analysis of the statutory error pursuant to Texas Rule of Appellate Procedure 44.2(b), under which we disregard the error unless it affected appellant's "substantial rights." Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002); Webb v. State, 156 S.W.3d 653, 655 (Tex.App.-Dallas 2005, pet. filed); Hwang v. State, 130 S.W.3d 496, 499 (Tex.App.-Dallas 2004, pet. ref'd). A record showing that the appellant was informed, either by the court or in some other way, about the specific consequences of his plea creates a rebuttable presumption that he knew the consequences. Webb, 156 S.W.3d at 656. Although both parties agree that the trial court failed to warn appellant of the sex offender registration consequences of his plea, the record shows he was aware of the statutory registration requirements. During voir dire, for example, appellant's attorney asked whether sex offender registration could be considered punishment. During his opening statement, appellant's counsel discussed the stigma and life-long obligations inherent in a sexual offense, including the sex offender registration requirement. Furthermore, during the punishment hearing appellant clearly indicated that he understood the registration requirement:Q. [DEFENSE COUNSEL]: Now, you know about the sex offender registration law?
A. I do, yes.
Q. What's you understanding of that?
A. Within — from what I understand, within seven days of being convicted as a sex offender that you must register with the local police.
Q. And that [sic] that's available for the public to know?
A. Yes, sir.
Q. And if you moved to another city, then what are you supposed to do?
A. You have to transfer that. You must register with them.
Q. And how long does that registration last for?
A. For life.
Q. For life. The rest of you life?
A. Yes, sir.Because the record shows appellant was aware of the statutory registration requirement and that it did not affect his decision to plead guilty, he cannot establish that he was harmed by the trial court's failure to admonish him. Appellant's first point of error is overruled.
Punishment Testimony
In his second point of error, appellant contends that the trial court erroneously permitted two witnesses to testify regarding the punishment he should receive. Appellant correctly points out that a witness may not recommend a particular punishment to the factfinder. Sattiewhite v. State, 786 S.W.2d 271, 290 (Tex.Crim.App. 1989); Thompson v. State, 95 S.W.3d 537, 541 (Tex.App.-Houston [1st Dist.] 2002, no pet.). A trial court, however, has broad discretion in determining the admissibility of evidence presented at the punishment phase of trial. Davis v. State, 68 S.W.3d 273, 282-83 (Tex.App.-Dallas 2002, pet. ref'd). We will not disturb a trial court's determination regarding the admissibility of relevant evidence unless an abuse of discretion has been shown. Id. An abuse of discretion will be found "only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992). This is not such a case. The first witness, Anita Harkley, testified that appellant befriended her two sons and showed them a pornographic videotape. Harkely was asked by the prosecutor:Q. [PROSECUTOR]: How would you feel as a parent if the defendant were ever to get out of prison?
DEFENSE COUNSEL: Your Honor, I'm going to object.
THE COURT: Objection sustained. Ask your next question.
Q. [PROSECUTOR]: How would you feel about your family if the defendant were not incarcerated?
DEFENSE COUNSEL: Your Honor, I'm going to object to that.
THE COURT: Objection sustained. Ask your next question.
Q. [PROSECUTOR]: Do you have any fears about the future of your family?
DEFENSE COUNSEL: Your Honor, same objection. That's outside the scope of the hearing. It's improper for the witness to express an opinion about what specifically should happen.
THE COURT: The objection is sustained. Ask your next question.
Q. [PROSECUTOR]: Ms. Harkley, what fears or concerns do you have for yourself and your family in relationship to this defendant?
DEFENSE COUNSEL: Your Honor, I'm going to make an objection to that question also on the same basis.
THE COURT: The objection is overruled to that question. Answer the question.
THE WITNESS: My concern is mostly about my son's concerns. One of his anxieties about coming this morning was he was afraid of any kind of possible retribution in the future for having a part in this trial, and that's not something I'm personally afraid of. I don't think that will happen. So my fears are not so much for my family but for any other suspecting families in the future.The second witness, Dalton Gillespie, the victim, testified about appellant's molestation of him during the years appellant helped care for him. Gillespie was asked by the prosecutor:
Q. You know that he's admitting that he did these things to you?
A. Yes.
Q. And that the jury has to decide whether he should get probation or whether he should go to jail.
A. [Nods head].
Q. How do you feel about him now?
DEFENSE COUNSEL: Your Honor, I'm going to object. That appears to call for an improper response as to what he wants to see happen.
THE COURT: Objection to that question is overruled.
Q. How do you feel about the defendant now, about Chris?
A. Whether he should go to jail or not?
Q. How do you feel about him — about him?
A. I feel that it was very cruel what he did to just me and a lot of other kids that I heard about.
Q. How would you feel if you knew that he was out?
A. Of jail?
DEFENSE COUNSEL: Your Honor, I'm going to object to that as an improper question concerning what should happen.
THE COURT: Objection is overruled. Answer the question if you can.
Q. How would you feel if you knew that Chris was out of jail?
A. I would feel pretty bad for other — or for kids he met, because he could do the same thing he did to me to another kid, and that's — and he could ruin their life.The trial court did not abuse its discretion when it overruled defense counsel's objections. The court was receptive to appellant's objections to questions specifically inquiring of the victim's punishment wishes, and those objections were sustained. But when the focus of the witnesses' testimony turned to the affects of appellant's actions on his victims and their families, the trial court overruled defense counsel's objections. We are not persuaded by appellant's argument that the questions which the trial court allowed the witnesses to answer were nothing more than clever ways of asking what punishment they thought appellant should receive. The questions did not inquire as to the type of punishment appellant should receive, nor did the witnesses recommend any type of punishment in their answers. Furthermore, to the extent Gillespie's comments may have constituted a punishment recommendation, the complaint was waived. After counsel's objections were overruled, Gillespie was asked about his reasons for testifying and whether he would feel safe if appellant were not incarcerated. Gillespie commented without objection, "That he's a child molester, and that's pretty bad, and I think he needs — he needs to go to jail. . . ." Where the same evidence or argument is presented elsewhere during trial without objection, no reversible error exists. Nelson v. State, 126 S.W.3d 700, 703 (Tex.App.-Amarillo 2004, pet. ref'd). Appellant's second point of error is overruled, and the judgment of the trial court is affirmed.