Opinion
No. 05-07-00714-CR
Opinion Filed August 29, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 15th Judicial District Court Grayson County, Texas, Trial Court Cause No. 054895-15.
Before Justices FITZGERALD, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
A jury found appellant Joseph Andrew Godwin guilty of five counts of aggravated sexual assault of a child. The trial court assessed his punishment at fifty years' confinement. Godwin appeals, contending the trial court erred in admitting evidence of a relationship between Godwin and a teenaged co-worker. Because the issues in this appeal involve the application of well-settled principles of law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. Discerning no abuse of discretion, we will affirm the trial court's judgment. Throughout the trial proceedings, Godwin's defensive theory was that Sherri Godwin, his wife at the time and the complainant's mother, had coached the complainant to lie about abuse in order to gain leverage in the couple's divorce. The State proposed to offer evidence to rebut this theory. Specifically, the State proffered evidence that Godwin was engaged in an extramarital relationship with a teenaged co-worker. Because Sherri knew of the relationship, the State argued, she had all the "leverage" she needed for the divorce action and would not need to use her child to propagate a falsehood. The record of the trial court's hearing on the admissibility of the evidence indicates the court was thorough and cautious in making its decision. It asked questions concerning relevance and possible prejudice. In the end, the court allowed the evidence, with the limitation that the co-worker's age could not be addressed. The State then offered the testimony of the police officer who discovered evidence of the relationship and testimony of the co-worker herself. The latter testified she had a non-sexual relationship with Godwin, who bought her flowers and diamond earrings. She also conceded Godwin had kissed her and had taken her to a motel room. Godwin appeals the trial court's judgment, arguing the trial court should have excluded this evidence of extraneous bad acts under either rule 404(b) or rule 403. We review a trial court's decision to admit evidence under an abuse of discretion standard. See McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005). If the trial court's decision was within the "bounds of reasonable disagreement," we do not disturb the ruling. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005). As a prerequisite to presenting a complaint for appellate review, the record must show appellant made his complaint to the trial court by a timely objection. Tex. R. App. P. 33.1(a); see also Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App. 1995) (defendant must make timely objection to preserve error in admission of evidence.) Godwin complains that the trial court allowed the police officer and his co-worker to testify to the relationship Godwin had with the co-worker. He argues the testimony was introduced "simply to arouse the jury's hostility or sympathy" and that it likely caused the jury to make its findings on an improper basis. However, our review of the record indicates that the same evidence Godwin challenges was placed before the jury without objection. Early in the trial, before the police officer or co-worker testified, Sherri Godwin testified. The relevant questioning began as follows: Q. Mrs. Godwin, was there discord in your marriage with the defendant prior to [the complainant] making this outcry? A. Yes. Q. And did you have suspicions about extra-marital affairs? A. Yes. Q. Specifically related to the defendant? A. Yes. Q. Did you ever go anywhere and see him with another woman? A. Yes. Sherri went on to testify where she had seen her husband and the other woman together, and to identify the other woman as one of her husband's co-workers, whom Sherri knew by name. (This woman Sherri identified was the same co-worker who would testify later to the relationship with Godwin.) On cross-examination Sherri agreed that she and her husband had then gotten into such a heated argument that she had called the police. As the questioning continued, Sherri referred in a more veiled manner to the relationship: Q. Were you upset with Mr. Godwin because you felt he put his job before his family? A. I was upset because of the attention he was giving the people at work. Q. Were you upset he was gone too long at KFC? A. Yes.