Opinion
No. 05-03-00118-CR.
Opinion Filed February 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-74419-Is. Affirm.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
OPINION
Appellant appeals his conviction for indecency with a child under seventeen years of age. After finding appellant guilty, the jury sentenced appellant to sixty years' confinement, and a $6,000 fine. In six issues, appellant generally contends (1) the trial court erred in admitting evidence of extraneous offenses, (2) the trial court erred in denying his motion for continuance, and (3) fundamental error occurred when a State's witness testified as a "human polygraph." For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for indecency with a child. The complainant alleged was appellant's five year old daughter. At trial, the child testified appellant committed the offense by putting her hand on his penis. After hearing this and other evidence, the jury found appellant guilty as charged. This appeal followed. In his first point of error, appellant contends the trial court erred in admitting evidence that his mother (the child's grandmother) offered the child money if she agreed not to testify against appellant. Appellant first contends the trial court erred in admitting evidence of the bribe under rule 404(b) of the rules of evidence because he was not given notice of the State's intent to do so. According to appellant, rule 404(b), including its notice provisions, applies to extraneous acts committed by third parties. Under rule 404(b), if the State intends to offer evidence of extraneous offenses in its case in chief, it must, upon timely request by the defendant, give reasonable notice in advance of trial of its intent to do so. See Tex. R. Evid. 404(b); see Esponosa v. State, 853 S.W.2d 36, 39 (Tex.Crim.App. 1993). If a defendant does not request notice under rule 404(b), he is not entitled to notice. See Esponosa, 853 SW.2d at 39. Here, appellant only requested notice of extraneous offenses committed by him. Because appellant did not request notice of extraneous offenses committed by third persons, rule 404(b) did not require the State to give appellant such notice. See Tex. R. Evid. 404(b). In this issue, appellant also contends the trial court erred in overruling his hearsay objection to the child's testimony about the bribe. Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d); Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App. 1995). An out-of-court statement offered for the purpose of showing what was said rather than for the truth of the matter asserted is not hearsay. Dinkins, 894 S.W.2d at 347; Nixon v. State, 587 S.W.2d 709, 711 (Tex.Crim.App. 1979). Here, the child testified her grandmother offered her money not to testify. The statement was offered to show the child maintained her allegations despite being offered a benefit to recant them. In other words, the evidence was offered to show that the words were spoken and the effect those words had on the child. As such, the evidence was not offered for the truth of the matter asserted and was not hearsay. See Brooks v. State, 900 S.W.2d 468, 474 n. 6 (Tex.App.-Texarkana 1995, no pet.). Finally, appellant asserts the trial court's admission of the evidence violated rules 402 and 403 of the rules of evidence. Appellant's only "argument" under rule 402 is the conclusory statement that acts of a third party are not relevant to a defendant's actions. Appellant also suggests the evidence was not admissible under rule 403, but he provides no substantive argument or analysis to support this contention. Rule 38.1(h) of the rules of evidence requires an appellant to include in his brief "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." See Tex.R.App.P. 38.1(h). Here, appellant makes no effort to analyze how rules 402 or 403 affect the particular facts of this case. We are not required to make appellant's appellate arguments for him. We conclude this contention is inadequately briefed and presents nothing to review. See Stahle v. State, 970 S.W.2d 682, 692 (Tex.App.-Dallas 1998, pet. ref'd). We resolve the first issue against appellant. In his second and third issues, appellant contends the trial court erred in admitting evidence that he attempted to bribe the outcry witness. At trial, Robert Perez, Jr., the child's maternal uncle and the outcry witness, testified that after appellant was arrested, appellant offered him a bribe if Perez agreed not to testify. According to appellant, evidence of the bribe was inadmissible because he was not given reasonable notice of the State's intent to introduce the extraneous offense evidence. As noted above, appellant requested notice under 404(b) if the State intended to introduce evidence of extraneous offenses committed by him. Thus, under rule 404(b), appellant was entitled to "reasonable" notice. See Tex. R. Evid. 404(b). Whether notice is reasonable depends upon the facts and circumstances of each individual case. Owens v. State, 119 S.W.3d 439, 443-44 (Tex.App.-Tyler 2003, no pet.); Scott v. State, 57 S.W.3d 476, 480 (Tex.App.-Waco 2001, pet. ref'd). The trial court's determination on whether notice is reasonable is reviewed under an abuse of discretion standard. See Hayden v. State, 66 S.W.3d 269, 271 (Tex.Crim.App. 2001). Therefore, we will not reverse a trial court's decision unless the decision is outside the "zone of reasonable disagreement." See Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003); Owens, at 119 S.W.3d at 444. The record shows that the prosecutor interviewed Perez in his office on January 6, 2003, the day before trial. At that interview, the prosecutor learned for the first time that appellant attempted to bribe Perez. The prosecutor immediately gave appellant notice that the State intended to introduce evidence of the bribe. The prosecutor further informed appellant that Perez would be available for appellant to interview at appellant's convenience. Trial commenced the following day, January 7, 2003, but the State did not call Perez until January 9, 2003, at which time it elicited evidence of the extraneous conduct. While appellant was not given much notice in this case, there is no suggestion that the prosecutor acted in bad faith in failing to give additional notice. After reviewing the record, we conclude the trial court's determination that the State's notice was reasonable under the circumstances was within the "zone of reasonable disagreement." We resolve the second and third issues against appellant. In his fourth issue, appellant contends the trial court erred in admitting two hearsay statements the child made to witnesses other than the outcry witness. First, appellant complains that Detective Glen Slade was permitted to testify about what the child told him regarding the offense. The record shows the trial court specifically admitted the complained-of testimony as a prior consistent statement under rule 801(e)(1)(B) of the rules of evidence. However, appellant asserts only that the trial court erred in admitting the testimony because Slade was not the outcry witness. Appellant provides no argument or authority to show the trial court abused its discretion in determining the statement was admissible under rule 801(e)(1)(B). Therefore, this issue is inadequately briefed and presents nothing to review. See Tex.R.App.P. 38.1(h) (brief must contain a clear and concise argument for the contentions made with appropriate citations to authorities and the record); see also Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App. 2000); Billy v. State, 77 S.W.3d 427, 429 (Tex.App.-Dallas 2002, pet. ref'd). Under this issue, appellant also asserts the trial court erred in overruling his hearsay objection to Maria Martinez's testimony. Martinez is the child's maternal grandmother. Martinez testified that after the child told Martinez what appellant had done, Martinez told the child to repeat the story in front of appellant. The prosecutor then asked Martinez what was appellant's response. Appellant made a hearsay objection. The trial court overruled appellant's objection and the witness responded that appellant told the child that she should forget about the incident. On appeal, appellant asserts the trial court erred in admitting the child's out-of-court statement. However, appellant direct us only to evidence of his own out-of-court statement. Thus, the record does not support appellant's complaint. Further, appellant's own statement was, of course, admissible as an admission by a party opponent. See Tex. R. Evid. 801(e)(2). We resolve the fourth issue against appellant. In his fifth issue, appellant contends the trial court erred in denying his motion for continuance. Appellant cites no argument or authority under this issue. Therefore, this issue is inadequately briefed and presents nothing to review. See Tex.R.App.P. 38.1(h); Rocha, 16 S.W.3d at 20; Billy, 77 S.W.3d at 429. We resolve the fifth issue against appellant. In his sixth issue, appellant contends the trial court erred in admitting Detective Slade's testimony that he was an expert in interviewing children. According to appellant, this evidence was improper because it equated to polygraph evidence. Although appellant admits he did not object to this testimony, he nevertheless asserts it constituted fundamental error. We disagree. To complain of the officer's testimony, appellant was required to lodge a timely, specific objection. See Tex.R.App.P. 33.1(a)(1); see also Leach v. State, 548 S.W.2d 383, 385 (Tex.Crim.App. 1977) (defendant must object to improper polygraph evidence to preserve error); Berotte v. State, 992 S.W.2d 13, 17 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (same). Because appellant did not object to the officer's testimony, he cannot now complain of it on appeal. We resolve the sixth issue against appellant. We affirm the trial court's judgment.