No. 14-07-00110-CR
Memorandum Opinion filed July 29, 2008. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 351st District Court, Harris County, Texas, Trial Court Cause No. 1013210.
Panel consists of Justice YATES, GUZMAN, and BROWN.
EVA M. GUZMAN, Justice.
A jury found appellant, Rodger Eugene Mansfield, Jr., guilty of the sexual assault of K.M., a person under the age of fourteen, and assessed punishment at twenty years confinement in Texas Department of Criminal Justice, Institutional Division, and imposed a fine of $5,000. The trial court sentenced appellant accordingly. In two issues, appellant challenges the trial court's evidentiary rulings at the punishment phase of his trial. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The complainant, K.M., who was eighteen at the time of trial, is appellant's daughter. At the guilt-innocence phase of trial, she testified that, when she was between six and nine years old, appellant touched her on and in her vagina with his hand and fingers "too many times to count." K.M. further testified that appellant touched her again when she was between the ages of nine and eleven or twelve. According to K.M., appellant told her what he was doing was wrong and begged her not to say anything. K.M. stated that she loved and trusted her father, believed him when he said he would stop, and wanted her father to change, but he did not do so. K.M. stated that when she was fifteen years old, she told her girlfriend and her girlfriend's mother what had happened. Appellant testified in his own defense and denied K.M.'s accusations. The jury found appellant guilty. K.M. testified for the State during the punishment phase of appellant's trial. When the State asked K.M. to recite a poem she had written and offered the poem in evidence, appellant objected on (1) the ground it was "simply not relevant to any issue in this case," and (2) "the additional ground of the federal confrontation cross-examination grounds and hearsay, not able to confront or cross-examine her at the time the poem was written." The court overruled the objection and K.M. testified: The title of the poem is "Try to let Go!" Not forgiven, but yes you're missed, as the sadness swallows me whole. The pain you caused, may God spare your soul. I hope to let go, still the grudge stands firm. The fatherhood used [sic] show, and I thought of no harm. Now you're gone, locked away. My heart is sore, but at least now I'm safe. Still missing the father I long for. The bottle remodeled his face, he now is no more. You . . . a beast has taken his place. My feelings so mixed and unpure. I look to a spirit to lift my anger. Jesus Christ has taught me well. I know now he is my savior . . . Sorry, dad, for promising I'll never tell.
Appellant's fiancee and his brother's girlfriend testified on his behalf. In addition, appellant called his father, Rodger Mansfield, Sr. ("Mansfield"). Without objection, Mansfield testified he had known appellant for his entire life and appellant had not been convicted of any felonies in this or any other state. Defense counsel then asked Mansfield whether his son had been on felony probation, and the State objected on the ground the information was outside the witness's personal knowledge. The court sustained the objection, and the following transpired: Q. (By Mr. Burkholder [defense counsel]) Are you familiar with your son's criminal record?
A. [Mansfield] Yes.
Q. Has he received probation, felony probation in this or any other state?
MR. LEGRANDE [the prosecutor]: Objection, Your Honor, outside personal knowledge.
THE COURT: Sustained.
MR. BURKHOLDER: May we approach the bench?
THE COURT: Yes.
(At the Bench, on the record)
MR. BURKHOLDER: I don't understand why he can't testify, Your Honor.
THE COURT: He doesn't [sic] live with him the whole time, he hasn't been with him the whole time.
MR. BURKHOLDER: It goes to the weight, Your Honor, not the credibility.
THE COURT: I sustained the objection.
Defense counsel subsequently repeated his request to call Mansfield "to establish the very limited purpose that [appellant] has not been placed on probation, felony probation in this state or any other state. I believe he's sufficiently familiar with his son's criminal record that he can testify to those facts." The court responded that appellant had not always lived with his father: "He went to Alaska for a year, so he doesn't know of his own personal knowledge." The court again overruled appellant's objection to exclusion of the evidence. Defense counsel then indicated he was calling appellant to testify, but would not be doing so, but for the court's ruling. On direct examination, appellant testified he had not been convicted of a felony or placed on felony probation in this or any other state. On cross-examination, the State questioned appellant about his five-to six-month stay in Alaska during the investigation of K.M.'s accusations, the circumstances of his arrest in Alaska for the present offense, his extradition to Texas, and his failure to make child support payments. Appellant admitted that during the arrest he was unruly, intoxicated, and had pleaded guilty to disorderly conduct and criminal mischief. When asked whether he respected the jury's verdict, appellant replied he did not. The jury was charged on community supervision as follows: The defendant filed a sworn motion for community supervision herein, alleging that he has never before been convicted of a felony in this State or any other State. Our statute provides that where the Jury finds the defendant guilty and the punishment assessed by the Jury shall not exceed ten years imprisonment in the institutional division of the Texas Department of Criminal Justice, and the Jury shall find in their verdict that the defendant has never before been convicted of a felony in this or any other state, the Jury may recommend that the defendant be granted community supervision.
. . .
Now, having found the defendant guilty and if the punishment assessed by you is not more than ten years confinement in the institutional division of the Texas Department of Criminal Justice, and if you further find that he has never been convicted of a felony in this State or any other State, you may in your discretion recommend that the defendant be given community supervision. If you desire the defendant to be placed on community supervision, let your verdict show that you find that the defendant has never been convicted of a felony in this State or in any other State and further show that you recommend community supervision.
If you do not desire to recommend community supervision, you will not mention the matter of community supervision at all in your verdict.
The jury assessed appellant's punishment at twenty years confinement and a fine of $5,000, and made no mention of community supervision in its verdict. The trial court rendered judgment on the jury's verdict. This appeal timely ensued. II. ISSUES PRESENTED
Appellant's complaints in this court are directed at errors alleged during the punishment phase of his trial only. In his first issue, appellant argues the trial court arbitrarily applied the lack-of-personal-knowledge standard in Texas Rule of Evidence 602 to exclude evidence he offered to meet his burden of proving he was eligible for community supervision. In his second issue, appellant argues the trial court "committed reversible error" in allowing K.M. to read her poem to the jury. III. STANDARD OF REVIEW
We review the trial court's evidentiary rulings for abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App. 1990) (en banc). We will not disturb the trial court's ruling if it is "within the zone of reasonable disagreement." Winegarner v. State, 235 S.W.3d 787, 790 (Tex.Crim.App. 2007). Instead, we will uphold the ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). IV. ANALYSIS
A. Felony Probation Testimony
In his first issue, appellant complains of the trial court's exclusion of Mansfield's testimony regarding whether appellant had ever received felony probation. As noted above, the State objected to this testimony based on a "lack of personal knowledge," under Texas Rule of Evidence 602. As is relevant here, this rule provides: "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." TEX. R. EVID. 602. The trial court, in sustaining the State's objection to this testimony, stated appellant had not always lived with his father (Mansfield) and also referred specifically to the time appellant spent in Alaska. Appellant's only response to this ruling was that he did not understand why Mansfield could not testify and that whether Mansfield had personal knowledge of appellant's criminal record went to the weight of the evidence, rather than "the credibility." But because there was uncontroverted evidence that appellant had not resided with his father his entire life, and, in fact, had been to Alaska for several months, we cannot say that the trial court's exclusion of this evidence under Rule 602 was outside the "zone of reasonable disagreement." Winegarner, 235 S.W.3d at 790. Here, however, appellant argues that the trial court's interpretation of the personal-knowledge requirement is inconsistent with case law interpreting Rule 602. In support, he relies on Trevino v. State, 577 S.W.2d 242 (Tex.Crim.App. 1979), and Wright v. State, 178 S.W.3d 905 (Tex.App.-[Houston 14th Dist.] 2005, pet. ref'd). Neither of these cases support appellant's argument. First, the issue in Trevino was not whether the trial court abused its discretion in admitting or excluding evidence, but whether the defendant had presented sufficient evidence of his eligibility for community supervision to submit the issue to the jury. Trevino, 577 S.W.2d at 243. Thus, it is inapposite. In Wright, the appellant asserted that the State's in-court demonstration of its theory of how the murder victim died confused "high drama" with reality and deprived the appellant of a fair trial. 178 S.W.3d at 910, 917. As part of that issue, the appellant argued the court should not have allowed the demonstration because, contrary to Rule 602, the State's witness testifying in support of the demonstration had no personal knowledge of the events about which he testified, and the State failed to show the demonstration was substantially similar to the events it sought to portray. Id. at 918. The witness upon whose testimony the demonstration was based was a crime-scene detective who had viewed both the decedent's body and the scene itself and observed the appellant's erratic behavior after the crime. Id. This court concluded, "All of these facts [the detective] knew from personal knowledge and experience, and his testimony about them did not violate Rule 602." Id. We further concluded that, under Texas Rule of Evidence 701 , "[t]hose parts of the demonstration for which [the detective] lacked personal knowledge were admissible as lay opinion because they were reasonable inferences from those facts he did know by personal knowledge." Id. at 918-19. Importantly, in this case, appellant did not assert Rule 701 as a basis for admission of Mansfield's testimony at trial. Failure to present a particular argument to the trial court in support of the admission of excluded evidence waives that argument for appeal. Reyna v. State, 168 S.W.3d 173, 176-79 (Tex.Crim.App. 2005); see also Clark v. State, 881 S.W.2d 682, 692-94 (Tex.Crim.App. 1994) (en banc). Here, appellant conflates Rules 602 and 701 in his briefing, arguing that Mansfield's testimony regarding whether appellant had ever been placed on felony probation was a reasonable inference from facts within Mansfield's personal knowledge. But because appellant did not present this argument to the trial court, it has been waived. See Reyna, 168 S.W.3d at 176-79; Clark, 881 S.W.2d at 692-94. Appellant additionally argues we should look beyond the abuse-of-discretion standard. Relying on Holmes v. South Carolina, he argues the trial court's application of Rule 602 deprived him of his constitutional right to present a defense. See 5547 U.S. 319, 330-31, 126 S. Ct. 1727, 1734-35 (2006) (holding criminal defendant's federal constitutional rights violated by evidence rule under which defendant could not introduce proof of third-party guilt if prosecution had introduced forensic evidence that, if believed, strongly supported a guilty verdict). As discussed above, however, appellant never presented this argument to the trial court. Thus, appellant has not preserved his constitutional argument for appeal. We conclude the trial court did not abuse its discretion in excluding Mansfield's testimony that appellant had not been placed on felony probation, and because he did not present the argument to the trial court, we decline to review appellant's constitutional argument stemming from exclusion of that evidence. Accordingly, we overrule appellant's first issue. B. Admission of K.M.'s Poem
In his second issue, appellant contends the trial court committed reversible error by allowing K.M. to read her poem to the jury. On appeal, he argues (1) the poem was inadmissible under Rule 401 because it was not relevant, and (2) the poem was inadmissible under Rule 403 because the prejudicial nature of the poem outweighed its probative value. See TEX. R. EVID. 401, 403. In the trial court, however, appellant objected to the evidence only on the grounds of relevancy, hearsay, and denial of his right to confrontation. He did not request that the trial court balance the probative value of the evidence against its prejudicial effect. He has therefore forfeited review of this question, and we consider only his Rule 401 argument that the evidence was not relevant. See Bell v. State, 938 S.W.2d 35, 49 (Tex.Crim.App. 1996) (holding that when defendant objected on relevance but not on Rule 403, Rule 403 issue was not preserved for review). At the punishment phase, the State and the defendant may offer evidence on "any matter the court deems relevant to sentencing. . . ." TEX. CODE CRIM. PROC. ANN. art. 37.07, sec. 3(a)(1) (Vernon Supp. 2007). "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX. R. EVID. 401. Matters relevant to sentencing include, but are not limited to, the defendant's character, opinions regarding his character, and the circumstances of the offense for which he is being tried. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1); Miller-El v. State, 782 S.W.2d 892, 896-97 (Tex.Crim.App. 1990) (en banc). A victim's emotional trauma may be a circumstance of the offense relevant to sentencing. See Stavinoha v. State, 808 S.W.2d 76, 78-79 (Tex.Crim.App. 1991) (en banc) (applying Miller-El to hold evidence of victim's emotional trauma admissible at punishment for aggravated sexual assault). K.M.'s poem was relevant to show that the consequences of appellant's act included K.M.'s sadness at having lost the sense of safety she once knew with her father, her mixed feelings, her anger, her need to apologize for her promise not to tell, and implicitly, for breaking that promise. During the guilt-innocence phase, K.M. had testified she first learned that what her father was doing was wrong only when he told her so and asked her not to tell anybody. Like the defendant priest in Stavinoha, appellant preyed on K.M.'s vulnerabilities and could easily have anticipated the impact his betrayal of trust would have on K.M. See 808 W.S.2d at 79. As did the Stavinoha court, we conclude K.M.'s poem had a bearing on appellant's personal responsibility and his moral guilt and was therefore admissible. See id. Having concluded that K.M.'s poem was relevant and that appellant did not preserve error with regard to whether its potential for unfair prejudice outweighed its probative value, we overrule appellant's second issue. V. CONCLUSION
We overrule appellant's two issues. Accordingly, we affirm the judgment of the trial court.