Opinion
No. 05-02-01032-CR.
Opinion Filed February 3, 2004. DO NOT PUBLISH, Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F99-71254-Hu. Affirmed.
Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
A jury convicted Lemon Carl Boyd of aggravated sexual assault of a child under fourteen and assessed punishment at forty years in prison. In a single point of error, he complains the trial court erred in allowing the State to ask an improper question during punishment. We affirm. B.B. testified appellant began sexually molesting her when she was eleven years old. At the time, appellant was her stepfather. At the punishment hearing, appellant called his pastor, George Pryor, as a character witness. Pryor testified he had known appellant for more than twenty years and appellant was a deacon and trustee at the church, New Birth Baptist Church. Pryor said as trustee, appellant primarily paid the bills; as deacon, he was a "spiritual leader" at worship services and helped with church repairs. Pryor testified he did not think appellant had been previously convicted of a felony. Pryor also testified he had discussed with defense counsel conditions that a convicted sex offender would have to abide by if placed on probation, and Pryor said he would be "glad to" help appellant live up to those conditions, including one that he not be allowed to be around children under seventeen. The State then asked the following questions:
[PROSECUTOR]: Sir, do you believe that someone who has been convicted of sexually assaulting a 13 — I'm sorry — an 11-year-old child should get probation? Do you think that's justice?
[WITNESS]: I don't know all the —
[DEFENSE COUNSEL]: Objection, Your Honor. Objection to asking him to commit to what type of punishment the Defendant should receive.
[TRIAL JUDGE]: Overruled. Go ahead.
[DEFENSE COUNSEL]: Excuse me. Invades the province of the jury.
[TRIAL JUDGE]: Overruled.
[PROSECUTOR]: Do you think that's a just punishment? I mean, you said you would help him abide by the conditions and I respect your answer there, but do you think that's justice for a grown man having sex with an 11-year-old girl?
[WITNESS]: Well, I haven't heard the things that you've heard.
[PROSECUTOR]: Okay, so you don't know what the allegations are against [appellant]?
[WITNESS]: I don't know all of the testimonies.
[PROSECUTOR]: Well, let me ask you this, sir. You said that [appellant] was a spiritual leader at the church; is that right?
[WITNESS]: Yes.
[PROSECUTOR]: And sir, what does the Bible say about dads having sex with their minor daughters?
[WITNESS]: It's forbidden.Appellant complains the highlighted questions violated the rule that a "witness is not permitted to advise the jury what he/she thinks is an appropriate punishment." Assuming without deciding that the trial judge abused her discretion in allowing the question, no harm is shown. We review the record for harm under the nonconstitutional standard provided in Texas Rule of Appellate Procedure 44.2(b). Under rule 44.2(b), we disregard all nonconstitutional errors that do not affect the appellant's substantial rights. A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. Simpson v. State, 119 S.W.3d 262, 266 (Tex.Crim.App. 2003). Here, Pryor did not recommend any punishment to the jury. He did not indicate one way or another whether appellant should receive probation. Rather, when asked the question, Pryor stated that he did not hear the testimony to determine whether probation was a just punishment in this case. Under these circumstances, we cannot say that the error had a substantial and injurious effect in the jury's decision to assess punishment at forty years. We overrule the sole point of error. We affirm the trial court's judgment.