Summary
finding objection under Rule 404(b) not preserved by relevance objection
Summary of this case from Cavazos v. StateOpinion
No. 05-10-00763-CR
02-23-2012
RAYMOND CHARLES JACKSON, JR., Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued February 23, 2012
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F08-60876-YH
MEMORANDUM OPINION
Before Justices Bridges, Richter, and Murphy
Opinion By Justice Bridges
Appellant Raymond Charles Jackson, Jr. appeals his conviction for aggravated sexual assault of a child younger than fourteen years of age and his accompanying sentence of twenty years' imprisonment. In three issues, appellant contends the trial court committed reversible error when it: (1) overruled appellant's objection to the testimony of Clarence Littleton; (2) submitted an improper charge to the jury; and (3) denied appellant's two requests for mistrial following improper arguments from the prosecutor. We affirm. BACKGROUND
Appellant and Claudia, C.F.'s mother, were engaged to be married in 2002. Appellant moved in with Claudia and C.F., but the engagement ended in November 2002. Appellant moved out of the house but returned for a few weeks in January 2003. He then moved out permanently.
In 2008, C.F. revealed that appellant had sexually abused her. At trial, thirteen-year-old C.F. testified the abuse took place when she was eight-years-old and detailed the incident of abuse. She testified that, while her mother was at work, appellant took C.F. into her mother's bedroom and threw her onto the bed. He stood in front of her and took off his clothes before overpowering C.F. and ripping off her shirt and pants. Appellant touched her "upper body," that is her chest and stomach. He also touched her "bottom areas," where she "pee[s]" and "poo[s]." Appellant rubbed his hands in a "back and forth" motion and C.F. screamed for him to stop. Appellant then took off her underwear and got on top of her and used his penis to touch her vagina in a moving motion. Appellant also used his penis to touch C.F.'s chest and stomach. C.F. remembered she felt "nasty." After the incident, appellant threatened to hurt Claudia if C.F. ever said anything. C.F. later told her grandmother about the incident when she was twelve years old.
Courtney Golden, a forensic interviewer with the Dallas Children's Advocacy Center, testified. She conducted the interview of C.F. following C.F.'s outcry. Golden stated, "Sensory details are important because when a child gives sensory details, it really shows how they felt when the abuse was happening." Golden testified C.F. was able to provide "sensory detail," specifically, C.F. "indicated it felt nasty. That would be a detail about how it felt on her body." Golden further testified she believed C.F. was credible.
C.F.'s grandmother, Linda, testified that C.F. first made her outcry about appellant's sexual abuse to her. Linda confirmed C.F. described how appellant rubbed his penis up and down her vagina. Claudia confirmed that Linda arrived at her home later that evening, which is when Claudia first learned about the abuse.
Andrea Schultz, an expert on the topic of delayed outcry, explained that a delayed outcry is common with children who have been abused. Shultz indicated that it is "very common" for a child, even years later, to remember the details about the sex abuse but forget some of the surrounding details. She also stated anger is a sign indicating that suggestibility is unlikely.
In addition to the testimony regarding the abuse of C.F., testimony regarding appellant and Claudia's prior relationship was also elicited. During his case in chief, appellant called Claudia as a hostile witness. During that testimony, Claudia discussed her tumultuous relationship with appellant, the mental illness warrant she filed against him in 2003, and the protective order she sought against him in 2008.
Appellant's counsel continued by asking Claudia about a 2004 television news report entitled "Parol Officers Gone Wild." Claudia explained she was a probation officer at the time and that the news report accused her of having dated appellant while he was a parolee in violation of her department's policy. Claudia denied the reporter's allegations and believed appellant played a "very intricate part" in the investigation, leaving her "[m]ostly perplexed and angry." She also admitted that just four months prior to accusing appellant of sexually abusing C.F., a court had denied her 2008 request for protective order.
The prosecutor sought clarification as to why a 2003 protective order had been granted against appellant. Claudia testified that appellant had thrown her on the couch, left a bruise on her neck, had broken into her house, put a knife to her throat stating he would "kill" her, and had showed up uninvited with a shotgun. In addition, Claudia explained that in 2005, appellant violated the protective order when he held a large pocket knife and said, "I'll kill you." She further testified appellant had driven by her house or church in the Fall of 2007, "shooting the finger. . . you know, to say that, you know, 'I'm going to get you.'"
During the course of Claudia's testimony, appellant lodged no objections and requested no limiting instructions.
Following Claudia's testimony, the prosecutor called Clarence Littleton, Claudia's co- worker, as a rebuttal witness and the following exchange took place:
[Prosecutor]: Do you recall a time when [appellant] came to visit your office in search of Claudia []?Appellant did not request a limiting instruction after his relevance and hearsay objections were overruled and did not cross-examine Littleton.
[Littleton]: Yes.
[Prosecutor]: Tell me what happened.
[Littleton]: He saw me outside. He started talking with me, telling me about Claudia had broken off the wedding that they were supposed to have, and I think she broke it off maybe a week or something before they were to get married.
[Defense Counsel]: Objection. Relevance. Hearsay.
[Prosecutor]: Your Honor, he's a rebuttal witness. He's directly rebutting what
Defense Counsel just got into with [Claudia], and the Defendant's statement.
[The Court]: What is it rebutting?
[Prosecutor]: It's rebutting what Defense Counsel said with [Claudia]; and furthermore, Your Honor, the Defendant's own statement, a statement against party opponent.
[Defense Counsel]: The Defendant hasn't testified, Judge.
[The Court]: Overruled. Go ahead.
[Prosecutor]: Go ahead.
[Littleton]: Okay. After-he was upset about Claudia breaking off the wedding, and it was at that point he told me he would kill her and everybody else.
I at that point-when he left me, he was headed down to see the parole supervisor, who was John King. I went in and made a phone call to call that office. They told me they were already aware of it.
. . .
[Prosecutor]: At some point he said he'll kill her, he'll kill everybody?
[Littleton]: Yes.
[Prosecutor]: And then after that he told you that he had a shotgun that he kept in the bushes?
[Littleton]: Yes.
[Prosecutor]: And that he waiting for Claudia [] to come out and see if she was with anybody?
[Littleton]: Yes.
. . .
[Prosecutor]: When he said waiting to see if she'd come out with anybody-
[Littleton]: Anybody-well, I guess anybody that he thought she was dating.
[Prosecutor]: So, he-
[Defense Counsel]: Renew my objection to hearsay and relevance, Judge.
[The Court]: Overruled.
At the close of trial, the jury convicted appellant of aggravated sexual assault of a child younger than fourteen years of age, and the trial court sentenced him to twenty years' imprisonment.
ANALYSIS
I. OBJECTION TO LITTLETON'S TESTIMONY
In his first issue, appellant contends the trial court committed reversible error when it overruled appellant's objection to the testimony of Clarence Littleton. A trial court's decision to admit or exclude evidence based on its relevancy is reviewed for an abuse of discretion. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). So long as the trial court's ruling falls within the zone of reasonable disagreement, we should affirm. Page v. State, 213 S.W.3d 332, 337 (Tex. Crim. App. 2006).
Appellant has chosen not to argue the alleged merit of his hearsay objection on appeal and, therefore, we do not consider it in this opinion.
Specifically, appellant contends that the alleged threats made by him had no connection to the alleged sexual assault and were, therefore, "irrelevant, confusing, and inflammatory to the jury." In his briefing, appellant argues his general relevance objection encompassed a rule 404(b) and rule 403 objection to Littleton's testimony. We disagree.
A. Rule 404(b)
We first turn to appellant's argument that his relevance objection included a rule 404(b) objection. Rule 404(b) provides, in pertinent part, as follows:
(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
Tex. R. Evid. 404(b). Texas law allows review under rule 404(b) when an appellant does not precisely recite rule 404(b) when making an objection, but when the circumstances apprise the trial court of the nature of the complaint. See Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1977). As stated above, the only objections appellant raised in his brief were his relevance objections. The court of criminal appeals has determined that, with regard to a rule 404(b) objection, the proper legal basis for appellant's trial objection "should have been 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." Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990). Appellant's relevancy objections, therefore, did not address the correct evidentiary basis for the exclusion of Littleton's testimony. See Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993) (en banc). An objection stating one legal theory may not be used to support a different legal theory on appeal. Id. (citing Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Johnson, 803 S.W.2d at 292)).
Even though appellant acknowledges asserting only a relevancy objection, he contends a rule 404(b) objection was properly lodged since "the contextual clues support a finding that the trial court knew [appellant] was objecting to Littleton's testimony because it was extraneous bad acts evidence." The record does not support such a conclusion.
In the first instance, appellant lodged a relevancy objection when Littleton testified appellant was upset that Claudia broke their wedding plans. At the time appellant objected, there were no contextual clues that appellant was making a rule 404(b) objection. See Resendez v. State, 306 S.W.3d 308, 312-13 (Tex. Crim. App. 2009) (stating the reasons for requiring a specific objection to the trial court). In fact, the record reveals the trial court had no apparent knowledge about what the prosecutor wanted to accomplish with Littleton's testimony until the trial judge asked: "What is it rebutting?" When the prosecutor explained what Littleton was rebutting, appellant failed to further object and dropped the matter, allowing the prosecutor to question Littleton regarding the threats without objection or a request for a limiting instruction.
In the second instance, appellant again lodged a relevancy objection when Littleton testified about appellant's decision to wait and see if Claudia would come out with anyone he thought she was dating. However, Littleton had already testified to appellant's decision to wait and see if Claudia came out with anybody. Texas law requires a party to object every time allegedly inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). See also Tex. R. App. P. 33.1(a); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (To preserve error, a party must make a timely and specific objection or motion at trial, and there must be an adverse ruling by the trial court.) Therefore, appellant failed to preserve his rule 404(b) objection for appellate review. See Comacho, 864 S.W.2d at 533.
B. Rule 403
Appellant further contends his relevancy objection encompassed a rule 403 analysis. We disagree. Rule 403 provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. A specific rule 403 objection must be raised to preserve the issue for appellate review. See Padrino v. State, No. 05-05-01596-CR, 2007 WL 241159 (Tex. App.-Dallas Jan. 30, 2007, no pet.) (citing Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd)). In the instant case, defense counsel did not invoke rule 403 or claim the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. He raised only a general relevancy objection. Therefore, his rule 403 objection is not preserved for appellate review. See Lopez, 200 S.W.3d at 251. Having concluded appellant failed to preserve a rule 404(b) or rule 403 objection, we overrule appellant's first issue. See Powell, 63 S.W.3d at 438.
II. JURY CHARGE
In his second issue, appellant contends "[t]he prejudicial effect of the irrelevant testimony of Littleton was magnified by the improper jury charge which provided a limiting instruction only to 'offenses' instead of the broader category of 'other bad acts' and instructed the jury that the extraneous 'offenses' could only be used to assess the defendant's credibility when the [appellant] did not testify."
When reviewing a claim of jury charge error, the court of appeals applies a two-step process. First, we must determine if an error actually exists in the charge. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If there is error, we must then determine if the error caused sufficient harm to warrant reversal. Hutch v. State, 922 S.W.2d 166, 170-71 (Tex. Crim. App. 1986); Almanza, 686 S.W.2d at 171. The degree of harm necessary depends on whether the appellant preserved the error by objection. Id. Appellant concedes he failed to object to the charge and, therefore under a harm analysis, the conviction cannot be reversed unless the jury charge resulted in "egregious harm" to appellant. Almanza, 686 S.W.2d at 171. Egregious harm exists when the error is so great as to deprive a defendant of a fair and impartial trial. Id.
Thus, we first turn to whether error actually existed in the charge. See Middleton, 125 S.W.3d at 453. Appellant complains of the following portion of the jury charge:
If you find beyond a reasonable doubt that there is evidence in this case in regard to the defendant's having committed an offense other than the offense for which he is on trial, you cannot consider such other offenses, if any, for any purpose unless you find and believe from the evidence beyond a reasonable doubt that the defendant committed such other offense, if any, and even then you may only consider such offense, if any, to aid you, if it does aid you, in assessing his credibility, and for no other purpose. You must not consider the commission of an extraneous offense, if any, as any evidence of guilt.(Emphasis added). Rule 105(a) provides as follows: (a) Limiting Instruction. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.
Tex. R. Evid. 105(a) (emphasis added). An objection to the admission of evidence and a request for a limiting instruction must be made when the evidence is introduced for a party to be entitled to a limiting instruction regarding the proper use of the evidence. Delgado v. State, 235 S.W.3d 244, 251 (Tex. App. 2007); Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001).
As noted in our discussion of appellant's first issue, appellant failed to request a limiting instruction with regard to Littleton's testimony at the time the evidence was introduced. Accordingly, the trial judge had no obligation to include a limiting instruction in the jury charge. See Delgado, 235 S.W.3d at 251. We overrule appellant's second issue.
We note, however, that the trial court did, to the benefit of appellant, limit the evidence in question to a determination of appellant's credibility.
--------
III.REQUESTS FOR MISTRIAL
In his final issue, appellant contends the trial court committed reversible error when it denied his two requests for mistrial following the improper arguments of the prosecutor. Specifically, appellant complains of the following two arguments made during the State's closing argument:
(1) "And ladies and gentlemen, don't think for one minute that we don't get guilties in this Courthouse every single day based on the credibility of one witness alone"; and (2) "My favorite, ladies and gentlemen, is that "mama lies" defense. That one is so popular that it's used nationwide by the defense bar. In fact, it's recommended by two out of three defense attorneys."
In reviewing a trial court's ruling on a motion for mistrial, we must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). Under these circumstances, we review the trial court's refusal to grant a mistrial under an abuse of discretion standard. See Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). We consider the following factors to determine whether an improper jury argument warrants a mistrial:
(1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks);Archie, 221 S.W.3d at 700.
(2) the measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and
(3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction).
A. First Request for Mistrial
The first request for mistrial occurred following the prosecutor's argument regarding the State's ability to obtain guilty convictions based on the credible testimony of a single witness. Under the first factor, we must determine the magnitude of the prejudicial effect of the prosecutor's remarks. See id. We note that, during voir dire, the prosecutor asked all potential jurors whether they could convict appellant based upon the credibility of a single witness. During the State's opening statement, the prosecutor argued, "[I]f you believe what that one witness said, as you told me you could do . . . you told me you could convict." Appellant's closing argument also raised the issue when defense counsel argued: "I love the State's voir dire. I can always tell the strength of their case [when the question is] if you have one witness . . . can you convict?" In the context of this record, we conclude the prosecutor's remarks had a low prejudicial effect, if any. See id.
With regard to the second factor, we look to the measures adopted to cure the misconduct. See id. The trial court sustained appellant's objection and granted an instruction to disregard. We must presume the jury followed the trial court's instructions unless the evidence shows they did not. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998); Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (appellant must rebut the presumption by pointing to evidence that the jury failed to follow the trial court's instructions). Appellant has not shown the jury failed to follow the trial court's instruction. Thus, we conclude appropriate curative measures were taken by the trial court. See Archie, 221 S.W.3d at 700.
Under the third factor, we consider the strength of the evidence supporting appellant's conviction. See id. To obtain a conviction for aggravated sexual assault of a child younger than fourteen years of age, the State must have shown appellant intentionally or knowingly caused the penetration of the anus or sexual organ of a child by any means if the victim is younger than fourteen years of age. Tex. Penal Code Ann. § 22.021 (West 2011). C.F. testified she was eight years old when appellant took off her underwear and got on top of her and used his penis to touch her vagina in a moving motion. Shultz testified that a delayed outcry was normal in child victims and that the possibility of suggestibility is unlikely in child victims who express anger like C.F. Linda and Claudia corroborated her outcry with Linda confirming that C.F. described how appellant rubbed his penis up and down her vagina. Moreover, C.F. provided sensory detail ("it felt nasty"), which Golden testified was significant to C.F.'s credibility. Based upon the record, therefore, we conclude the evidence supported appellant's conviction.
Thus, the trial court did not abuse its discretion in denying appellant's first request for mistrial. See Hawkins, 135 S.W.3d at 77.
B. Second Request for Mistrial
The second request for mistrial occurred following the prosecutor's remark regarding appellant's attack on the credibility of Claudia and the use of the "mama lies" defense by two out of three defense counsel. The record before us indicates appellant's defensive strategy largely focused on painting Claudia as a liar who coached C.F. into lying about the incident. The jury also heard witnesses called to rebut this defensive strategy. Although the prosecutor's comment was inappropriate, we conclude it was not unduly prejudicial in the context of this trial. See Archie, 221 S.W.3d at 700.
Turning to the second Archie factor, we note the judge sustained appellant's objection and granted his request for the jury to disregard. Again, we must presume the jury followed the trial court's instructions unless the evidence shows they did not. See Colburn, 966 S.W.2d at 520. Appellant has failed to demonstrate the jury disregarded the trial court's instruction. Thus, we conclude the trial court took appropriate curative measures. See Archie, 221 S.W.3d at 700.
Finally, under the third factor, we have already determined there was sufficient evidence to support appellant's conviction. See id. Therefore, we conclude the trial court did not abuse its discretion in denying appellant's second request for mistrial. See Hawkins, 135 S.W.3d at 77.
We overrule appellant's third issue.
CONCLUSION
Having overruled appellant's three issues, we affirm the judgment of the trial court.
DAVID L. BRIDGES
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100763F.U05
Court of Appeals Fifth District of Texas at Dallas
JUDGMENT
RAYMOND CHARLES JACKSON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00763-CR
Appeal from the Criminal District Court of Dallas County, Texas. (Tr.Ct.No. F08-60876- YH).
Opinion delivered by Justice Bridges, Justices Richter and Murphy participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered February 23, 2012.
DAVID L. BRIDGES
JUSTICE