Opinion
No. 05-03-00390-CR.
Opinion Filed January 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F01-43326-MJ. Affirm.
Before Justices MORRIS, WRIGHT, and RICHTER.
OPINION
Pursuant to a guilty plea, a jury convicted Billy Joe Kirk of the aggravated sexual assault of K.B., a child under fourteen years of age. The jury assessed punishment at ten years confinement and a $10,000 fine and recommended both be suspended. Now on appeal, appellant complains in four issues that the trial court (a) failed to comply with the mandatory provisions of article 26.13(b) of the Texas Code of Criminal Procedure, (b) abused its discretion in admitting certain evidence and "circumscribing" his right to cross-examine two witnesses, and (c) erred in overruling his objection to improper jury argument. We affirm.
Article 26.13(b)
In his first issue, appellant asserts the court failed to comply with article 26.13(b) of the Texas Code of Criminal Procedure by accepting his guilty plea without first conducting an "independent inquiry" to determine if he was mentally competent and the plea was free and voluntary. In response, the State argues an independent inquiry was unnecessary because the record did not rebut recitations in the court's documents showing the court was assured of appellant's competency and voluntariness of the plea. We agree with the State. Under article 26.13(b), a court may not accept a guilty plea unless it appears the defendant is mentally competent and the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2004). Recitations in the court's charge and judgment that the defendant appeared mentally competent and entered his plea freely raise a strong presumption of competency and voluntariness. Rachuig v. State, 972 S.W.2d 170, 177 (Tex. App.-Waco 1998, pet. ref'd). Moreover, when the defendant's mental competency is not questioned at the time of the plea, the court need not inquire or hear evidence on that issue. Kuyava v. State, 538 S.W.2d 627, 628 (Tex.Crim.App. 1976). This is particularly true where the court has had an opportunity to observe the defendant in open court, hear him speak, observe his demeanor, and engage him in colloquy as to the voluntariness of his plea. Id. In this case, the written plea agreement, the court's charge and the judgment all recite appellant appeared competent and entered his plea voluntarily. In addition, no issue was made of appellant's mental competency at the time of the plea. In fact, the record reflects the court discussed appellant's rights with him prior to accepting his plea, appellant stated he understood them, and then confirmed he was entering his plea freely and voluntarily. During this period, the court had the opportunity to hear appellant speak and observe his demeanor. We conclude, given this record, that an "independent inquiry" to determine whether appellant was mentally competent and whether his plea was free and voluntary was unnecessary. We resolve appellant's first issue against him.Admission of Evidence
In his second issue, appellant complains the court erred in overruling his objection to the following italicized portion of appellant's estranged wife's testimony:[PROSECUTOR]: Okay. When was the last time that you and the Defendant talked about anything?
[WITNESS]: He called me [two months ago] and told me we were already divorced and that — he told me what he was getting out of the divorce and that I better show up . . .
[DEFENSE COUNSEL]: Your honor, I'm going to object as to outside the scope of relevancy at this point.
[COURT]: Sustained.
[PROSECUTOR]: Was it a pleasant conversation?
[WITNESS]: No, he was just kind of threatening me.
[DEFENSE COUNSEL]: Again, Your Honor, as[k] the jury to disregard the statement of the witness.
[COURT]: Overruled.Appellant maintains this testimony was inadmissible under Texas Rule of Evidence 404, which prohibits the admission of specific evidence of extraneous wrongs or acts to prove a defendant is guilty of the charged offense. See Tex. R. Evid. 404. However, as the record reflects, appellant did not object on this ground at trial. An objection in the trial court that does not comport with a complaint on appeal does not preserve error. See Tex.R.App.P. 33.1(a); Guevara v. State, 97 S.W.3d 579, 582 (Tex.Crim.App. 2003). We resolve appellant's second issue against him.
CROSS-EXAMINATION
In his third issue, appellant asserts the court abused its discretion by limiting appellant's cross-examination of the complainant's mother, who testified as the outcry witness, and the complainant's best friend, who testified appellant had touched her inappropriately. Specifically, appellant asserts the court erred in ruling Texas Rule of Evidence 608(b) prohibited appellant from cross-examining the mother and friend about an incident where the complainant and friend "falsely accused" a third party. Appellant maintains he was harmed by the court's ruling because the State's case rested primarily on the complainant's testimony and the cross-examination would have shown that the complainant and friend "were untruthful . . . [the] complainant may have embellished her accusations against appellant and/or that [the friend] may have embellished hers or manufactured them out of whole cloth." We reject appellant's contentions. We review a trial court's decision to limit cross-examination under an abuse of discretion standard. Love v. State, 861 S.W.2d 899, 901-04 (Tex.Crim.App. 1993). We will reverse the court's ruling when the court acts arbitrarily and unreasonably, without reference to guiding rules or principles of law, and appellant has been harmed. Id.; Woods v. State, 14 S.W.3d 445, 451 (Tex. App.-Fort Worth 2000, no pet.). Under Texas Rule of Evidence 608(b), "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' [sic] credibility . . . may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence." Tex. R. Evid. 608(b). In this case, appellant sought to impeach the credibility of the complainant and her friend by introducing evidence of a "specific instance of conduct" — the false accusation of a third party — which is exactly what rule 608(b) proscribes. The trial court did not act arbitrarily. We resolve appellant's third issue against him.Jury Argument
In his final issue, appellant complains of improper jury argument. In his closing, appellant urged the jury for a probated sentence because the evidence showed he penetrated the victim "just" one time. Appellant's counsel reminded the jury in his last few seconds of closing that it was "[o]ne girl, one time." During her closing, the prosecutor responded as follows:But the excuse they're making, one girl, one time, that girl, [K.B.], this man's granddaughter, that girl, one time. How dare they come in here and minimize that behavior.Appellant objected to the italicized portion of the remarks on the ground the prosecutor was improperly interjecting her opinion. The trial court overruled the objection. Appellant now maintains the court erred in its ruling because the remarks were "an impermissible attempt by the prosecutor to assail [a]ppellant's counsel and suggest counsel tried to minimize or distort the gravity of the case." However, this complaint does not comport with appellant's trial objection. Appellant has waived error. See Tex.R.App.P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). We resolve appellant's fourth issue against him. We affirm the trial court's judgment.