No. 10-05-00299-CR
Opinion delivered and filed November 15, 2006. DO NOT PUBLISH.
Appeal from the 361st District Court, Brazos County, Texas, Trial Court No. 04-04735-Crf-361. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
FELIPE REYNA, Justice.
Jerry Lyn Taylor pleaded guilty to three counts of sexual assault of a child and a fourth count of indecency with a child. The jury assessed punishment at twenty years' imprisonment and a $10,000 fine for each count. The court ordered that Taylor's sentence on the fourth count run consecutively with the sentences for the first three counts. On appeal, Taylor asserts three points of error: (1) the court's cumulation order is void for lack of specificity; (2) the court's cumulation order violates due process; and (3) during the punishment phase, the court abused its discretion by admitting photographs evidencing extraneous offenses. We affirm.
POINT OF ERROR ONE
In his first point of error, Taylor contends the court's cumulation order is void for lack of specificity. "A sentence is a final judgment and should be sufficient on its face to effect its purpose without resort to evidence in aid thereof." Ex parte Lewis, 414 S.W.2d 682, 683 (Tex.Crim.App. 1967). The judgment should "convey to the authorities at the Texas Department of Corrections or any County jail clear and unequivocal orders of the trial court so that they may know definitely how long to detain the convict or prisoner." Id. Thus, a valid cumulation order should contain: (1) the trial court number of the prior conviction; (2) the correct name of the court where the prior conviction was taken; (3) the date of the prior conviction; (4) the term of years of the prior conviction; and (5) the nature of the prior conviction. Ward v. State, 523 S.W.2d 681, 682 (Tex.Crim.App. 1975). However, orders containing less than these five elements have also been held valid. See id. Here, the court's order on Count 4 reads as follows: This sentence shall run consecutive to the case specified below to Counts 1, 2, and 3. At the punishment hearing, the court stated: Counts 1, 2, and 3 will be served concurrently which means once Counts 1, 2, and 3 have been served, Count 4 will then be served.
Taylor argues that the written order is void for lack of specificity because it does not provide the requisite information for informing prison officials the sentences with which Count 4 is cumulated or when the sentence for Count 4 begins to run. However, a cumulation order is sufficient if it references "the previous conviction's cause number" and the court "entering the order is the same court which heard the prior cause." Ex parte San Migel, 973 S.W.2d 310, 311 (Tex.Crim.App. 1998); see also Lewis, 414 S.W.2d at 683. Here, the cause number is the same for all four counts and the judgment was rendered on all four counts on the same day in the same court. See San Migel, 973 S.W.2d at 311; see also Lewis, 414 S.W.2d at 683. Furthermore, unlike cases where the order states, "this sentence shall run consecutive to the case specified below," but fails to specify any other case, the order here very clearly states that the sentence for Count 4 "shall run consecutive to the case specified below to Counts 1, 2, and 3." Humphries v. State, No. 10-05-00150-CR, 2006 Tex. App. Lexis 7908 at, *2 (Tex.App.-Waco Aug. 30, 2006, no pet.) (not designated for publication); see also San Migel, 973 S.W.2d at 311. The court's order is clear that the sentence on Count 4 will be served following the concurrent sentences on Counts 1-3 of the judgment rendered in the same cause. Therefore, the court's cumulation order is "sufficiently specific" to enable Taylor and the TDCJ to "identify the prior with which the newer conviction is cumulated" and to know how long to detain Taylor. San Migel, 973 S.W.2d at 311; see Lewis, 414 S.W.2d at 683; see also Humphries, 2006 Tex. App. Lexis 7908, at *2. We overrule Taylor's first point of error. POINT OF ERROR TWO
Taylor's second point of error challenges the court's cumulation order on grounds that the order violates due process because it increased his sentence beyond the statutory maximum. "Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000). However, Apprendi is not violated "when a trial court orders the cumulation of sentences which individually lie within the statutory range of punishment but for which the cumulative total exceeds the prescribed statutory maximum for any single offense." Marrow v. State, 169 S.W.3d 328, 330 (Tex.App.-Waco 2005, pet. ref'd), cert. denied, ___ U.S. ___, 126 S. Ct. 1147, 163 L. Ed. 2d 1006 (2006); see U.S. v. Davis, 329 F.3d 1250, 1253-55 (11th Cir. 2003); see also U.S. v. McWaine, 290 F.3d 269, 275-76 (5th Cir. 2002); U.S. v. Feola, 275 F.3d 216, 218-20 n. 1 (2d Cir. 2001); Baylor v. State, 195 S.W.3d 157, 160 (Tex.App.-San Antonio 2006, no pet.); Tyson v. State, 172 S.W.3d 172, 176 (Tex.App.-Fort Worth 2005, pet. ref'd). Taylor claims the court's cumulation order improperly increased his sentence in excess of the statutory maximum. He does not dispute that the individual sentences imposed were within the statutory range. See Marrow, 169 S.W.3d at 330; see also Baylor, 195 S.W.3d at 160; Tyson, 172 S.W.3d at 176. Accordingly, it was entirely proper for the court to render an order where the "cumulative total exceeds the prescribed statutory maximum for any single offense." Marrow, 169 S.W.3d at 330. We overrule Taylor's second point of error. POINT OF ERROR THREE
In point of error three, Taylor argues that the court abused its discretion by admitting certain exhibits depicting extraneous offenses. Specifically, Taylor admits the exhibits were "arguably relevant," but were repetitious, unnecessary, prejudicial, and constitute evidence of extraneous offenses. The State responds that Taylor failed to preserve his complaint for appeal. Preservation
To preserve a complaint for appeal, a party must lodge a timely and specific objection, obtain an adverse ruling, and then either "object each time the inadmissible evidence is offered or obtain a running objection." See TEX. R. APP. P. 33.1(a); see also Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App. 1999); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim App. 2003). Failure to pursue the objection to an adverse ruling forfeits the right to complain on appeal. See TEX. R. APP. P. 33.1; see also Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). To preserve a Rule 404 complaint, a party must object "that the evidence was offered to prove an extraneous uncharged offense not within the permissible scope of 404(b) and was offered to show that appellant was a criminal generally." Camacho v. State, 864 S.W.2d 524, 533 (Tex.Crim.App. 1993). To preserve a Rule 403 complaint, a specific objection on the basis of Rule 403 is required. See Montgomery v. State, 810 S.W.2d 372, 388-89 (Tex.Crim.App. 1991); see also Williams v. State, 191 S.W.3d 242, 261 (Tex.App.-Austin 2006, no pet.). During the punishment phase, the court overruled Taylor's objection to the admission of exhibits 5, 7, 15, 16, 17, 18 and 23. Exhibits 5 and 7 comprise several pornographic videotapes. Taylor objected to exhibit 5 on the basis of relevance and Rule 403. When objecting to exhibit 7, Taylor specifically referenced his objection to exhibit 5. Having specifically objected to these exhibits on the basis of Rule 403, Taylor has preserved a Rule 403 complaint as to these exhibits. See Montgomery, 810 S.W.2d at 388; see also Williams, 191 S.W.3d at 261. Exhibits 15-18 include nude photographs of Taylor and exhibit 23 contains photographs of children. Taylor renewed his previous objections to relevance and forgery. However, Taylor did not object on Rule 403 grounds and his general reference to previous objections was insufficient to preserve a Rule 403 complaint as to these exhibits. See Montgomery, 810 S.W.2d at 388-89; see also Williams, 191 S.W.3d at 261; Lasher v. State, No. 10-02-00198-CR, 2006 Tex. App. Lexis 6001 at *3-4 (Tex.App.-Waco 2006, no pet.). At no time did Taylor lodge a Rule 404 objection to any of the seven exhibits. Taylor's relevancy and forgery objections did not "address the correct evidentiary basis for the exclusion." Camacho, 864 S.W.2d at 533. By neglecting to do so, Taylor failed to preserve his Rule 404 complaint for appellate review. See id. Accordingly, with the exception of his Rule 403 complaint regarding exhibits 5 and 7, Taylor's objections do not comport with his complaint on appeal. See Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002); see also Medina v. State, 7 S.W.3d 633, 643 (Tex.Crim.App. 1999); Montgomery, 810 S.W.2d at 388-89; Williams, 191 S.W.3d at 261. Taylor cannot use one legal theory to "support a different legal theory on appeal." Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990). Therefore, we will address the admissibility of exhibits 5 and 7 only under Rule 403. Admissibility
A court's decision to admit or exclude evidence is reviewed for abuse of discretion. See Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App. 1996). Relevant evidence is admissible, unless its "probative value is substantially outweighed by the danger of unfair prejudice." Tex. R. Evid. 403. In the punishment phase, the State may offer evidence of "any matter the court deems relevant to sentencing," including the defendant's character. TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (Vernon 2006). "Determining what is relevant then should be a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case." Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999). Exhibits 5 and 7 comprise a total of seven pornographic videotapes. The victim testified that Taylor brought such tapes to a hotel where he and the victim viewed some of the tapes and then engaged in various sexual acts. Detective Jay Bob Newcomb testified to locating the tapes in Taylor's home. The tapes were found in the same place as other items Taylor possessed while at the hotel with the victim. The tapes were admitted into evidence, but the record does not reflect that the jury viewed any of these tapes either in whole or in part. In light of the victim's testimony that she and Taylor viewed pornographic materials, the tapes are probative as a "sample of the type of material" Taylor showed the victim. Irvin v. State, No. 05-04-01661-CR, 2006 Tex. App. Lexis 4626, at *6-7 (Tex.App.-Dallas May 30, 2006, no. pet.) (not designated for publication). The jury could reasonably conclude that the tapes "played a role in motivating" Taylor to commit sexual assault and showed Taylor's sexual interests. Nenno v. State, 970 S.W.2d 549, 565 (Tex.Crim.App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App. 1999); see Farr v. State, No. 05-00-01864-CR, 2001 Tex. App. Lexis 8350, at *5-6 (Tex.App.-Dallas Dec. 18, 2001, no pet.) (not designated for publication). Thus, the tapes are probative of Taylor's character and assisted the "jury in determining the appropriate sentence" to impose. Rogers, 991 S.W.2d at 265; see Lamb v. State, 186 S.W.3d 136, 144 (Tex.App.-Houston [1st Dist.] 2005, no pet.). The probative value of the videotapes is not "substantially outweighed by the danger of unfair prejudice" and the court did not abuse its discretion by admitting the tapes. TEX. R. EVID. 403; see Jones, 944 S.W.2d at 651. We overrule Taylor's third point of error. Having overruled Taylor's three points of error, we affirm the judgment.