Opinion
No. 07-17-00105-CR
02-08-2018
MARVIN RAY SHILLING, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 54th District Court McLennan County, Texas
Trial Court No. 2015-599-C2 , Honorable Matt Johnson, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Marvin Ray Shilling (appellant) appeals his three convictions for aggravated sexual assault of a child and two for indecency with a child by contact. Three issues pend for our consideration. One and two involve the trial court's decision to deny his motion for mistrial. The third issue deals with the admission of outcry testimony. We affirm.
Because this appeal was transferred from the Tenth Court of Appeals, we decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court's decision would be inconsistent with the precedent of the transferor court. TEX. R. APP. P. 41.3.
Issues One and Two - Mistrial
The State and appellant agreed to redact portions of a video interview between appellant and law enforcement officials. The portions to be redacted encompassed a potential extraneous offense involving a purported assault committed upon the mother of the victim. Though the redacted version was to be played to the jurors, the unredacted version was actually shown to them. Approximately fourteen minutes into the video, the jurors heard appellant refer to the alleged assault and explain what happened. That led to an objection upheld by the trial court. The trial court also directed the jury to disregard that portion of the video encompassing the reference, which was found at time code 14:30 through 14:41. Thereafter, appellant's counsel said: "I'd also ask the Court because this is a direct violation of what we agreed to earlier, I'm going to ask for a mistrial." The latter was denied, however. Appellant now argues that the trial court erred in denying him a mistrial. We overrule the issues.
Appellant referred to the alleged assault at least twice in the video. The first time occurred at the time 5:00 through about 5:18. The second time was at the 14:30 time code. While he objected to the latter, no objection was made to the former. So, appellant now complains about evidence that was previously admitted without objection. Normally, this circumstance cures any error in admitting the evidence. See Newland v. State, 363 S.W.3d 205, 210 (Tex. App.—Waco 2011, pet. ref'd) (so holding). No less is true regarding the denial of a mistrial under the current circumstances. Simply put, appellant was obligated to object to both the evidence and purported misconduct by the prosecutor at the earliest opportunity. See Johnson v. State, No. 10-05-00275-CR, 2006 Tex. App. LEXIS 8278, at *1-2 (Tex. App.—Waco Sept. 20, 2006, no pet.) (mem. op., not designated for publication). He did not. We cannot fault the trial court for denying a mistrial when the very same evidence was admitted via the very same supposed mistake by the prosecutor without appellant complaining of either.
Alternatively, we note that the proper way to preserve a complaint is to object, request an instruction to disregard, and then move for a mistrial. Sawyers v. State, 724 S.W.2d 24, 38 (Tex. Crim. App. 1986); Gonzalez v. State, 522 S.W.3d 48, 64 (Tex. App.—Houston [1st Dist.] 2017, no pet.). Since the objection must be made at the earliest opportunity, Johnson v. State, supra, it logically follows that the request for an instruction to disregard and a motion for mistrial must also be made at the earliest opportunity. Appellant did not do this; so, he failed to preserve the purported error.
Issue Three - Outcry
Next, appellant contends that the trial court erred in overruling his objection to outcry testimony. He believed that the proper outcry witness was a police officer to whom the victim reported the event, not the forensic interviewer who later spoke with the child about the assault and testified to the conversation at trial. We overrule the issue.
The child victim appeared and testified, as did the SANE nurse who examined the child. Both related to the jury detailed evidence of appellant's conduct encompassing the same evidence imparted by the outcry witness. Assuming arguendo that the trial court erred in permitting the outcry witness to reiterate what the child said, the mistake was rendered harmless due to the admission, without objection, of like evidence elsewhere. Lamerand v. State, ___ S.W.3d ___, ___, 2018 Tex. App. LEXIS 370, at *12-13 (Tex. App.—Houston [1st Dist.] Jan. 11, 2018, no pet. h.) (so holding when the outcry testimony was redundant of the victim's); Dotie v. State, No. 05-04-01523-CR, 2006 Tex. App. LEXIS 7200, at *5-6 (Tex. App.—Dallas Aug.16, 2006, no pet.) (not designated for publication) (holding the same).
Having overruled each issue, we affirm the judgments of the trial court.
Per Curiam
Do not publish.