Opinion
NO. 01-17-00416-CR
08-14-2018
AARON LLOYD JACKSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court Harris County, Texas
Trial Court Case No. 1492127
MEMORANDUM OPINION
A jury found appellant, Aaron Lloyd Jackson, guilty of aggravated sexual assault and assessed his punishment at fifty-five years' confinement. In his sole issue on appeal, appellant argues that the trial court erred in excluding relevant evidence that the scene of the alleged offense appeared to have been staged by the complainant.
See TEX. PENAL CODE ANN. § 22.021(a)(1)(A), (2)(A) (West Supp. 2017).
We affirm.
Background
The complainant in this case, C.T., who suffered from several mental health disorders, including chronic anxiety and depression, schizoaffective disorder, and post-traumatic stress disorder, lived alone in a one-bedroom apartment. She became acquainted with appellant when she repeatedly saw him around the apartment complex while she was taking out her trash or caring for stray animals that lived in the area. Over time, she and appellant used drugs together on at least a couple of occasions, and she discussed her mental health history with him.
On the day of the assault, the complainant stated that she had interacted with appellant earlier in the day. She returned to her apartment and prepared some milk to feed a stray cat. She stated that, as she placed the bowl of milk outside her door, appellant rushed her and pushed her back into her apartment, knocking over a chair as he did so. A brief scuffle occurred, and the complainant was able to run to her bedroom, where she retrieved a small "flip-out" knife that she attempted to use to scare appellant into leaving her apartment. Appellant took the knife from her and threatened her with it, holding the knife to her throat at one point. The complainant stated that she "froze" and appellant removed her pants, pulled her underwear aside, and eventually penetrated her. After he had finished, he cleaned himself on her bedding and then started taking things from the complainant, including her phone and laptop. The complainant followed him, attempting to retrieve her belongings. She testified that she wanted to retrieve her phone so that she could call her parents and the police. She stated that she was "distraught" and "disoriented," and she was eventually able to use someone else's phone to call her parents, who then called the police.
The first officer to interview the complainant and review the scene of the assault, Officer J. Simpson-Bailey, wrote in her offense report that she formed the opinion that the apartment appeared "staged" and that the complainant's account lacked credibility. However, further investigation resulted in appellant's being arrested and charged with aggravated sexual assault.
The complainant testified at trial regarding the details of the assault. The State also presented evidence that, after the complainant spoke with Officer Simpson-Bailey at the apartment complex, her parents drove her to the hospital where she received a sexual assault examination and treatment for two cuts to her arm. The complainant later identified appellant as her assailant through a photographic array presented by a police investigator, and forensic testing concluded that a DNA sample taken from appellant during the investigation matched the DNA recovered as part of the complainant's sexual assault examination.
At the beginning of appellant's case-in-chief, his counsel called Officer Simpson-Bailey as a witness. Officer Simpson-Bailey testified that when she responded to the call, she met the complainant in the leasing office of the apartment complex and took a statement. The complainant told Officer Simpson-Bailey that she was "bipolar schizoaffective," and the complainant relayed the basic details of the assault. The officer noticed cuts on the complainant's arms, and she also observed that the complainant seemed "zone[d] out, out of it." Officer Simpson-Bailey testified that the complainant "appeared lethargic and like she was under the influence of some unknown substance" and that she "spoke in a monotone manner." Officer Simpson-Bailey stated, "I tried to obtain a description of the suspect, tried to get a sequence of events, but she was having a hard time giving me a correct sequence of the events." Officer Simpson-Bailey then went to examine the complainant's apartment, where the assault took place. She stated that everything in the apartment "appeared to be neat and clean" except that there were some CDs scattered on the ground outside the door and inside "[t]here was a chair pushed over."
Appellant's counsel then asked Officer Simpson-Bailey to refresh her recollection of the state of the crime scene with her offense report. The State asked to approach the bench, and outside the hearing of the jury, the following occurred:
[State]: This goes to my motion in limine [filed] prior to trial [seeking to prevent the officer from testifying that the scene appeared staged]. If he's going to ask this officer if her opinion was that the crime scene looked staged, I'll have to object to that because I don't think it's relevant. . . . [S]he's testified to her observations. If he asks her opinion as to her observations, it's not relevant and it's a factual matter for the jury to make a decision on.
[counsel]: Your Honor, we would suggest—we would suggest that this officer is an expert professional HPD officer, and her opinions as to what she observed that day, her impressions are admissible or are relevant.
[Court]: Let me hear her testimony outside the presence of the jury because I don't know what she's basing it on, her training, her experiences, and all of that sort of thing.
The trial court dismissed the jury, and appellant's counsel was able to conduct a voir dire examination of Officer Simpson-Bailey:
[counsel]: Officer Simpson, you're a professional with HPD, correct?
[witness]: Yes, sir.
[counsel]: You have received training to become a police officer?
[witness]: Yes, sir.
[counsel]: Based on your professional opinions and after refreshing your memory in this report, what were your impressions on this day of the scene of the crime? And feel free, if
you need to refresh your memory, to read this one more time to yourself.
[witness]: Well, my opinion is I believed there was more to her story, that there was some backstory involved that maybe the sex crimes investigator could possibly explore more into. But, for example, when she told me that she wanted to get her cell phone back from the suspect so she followed him, that was a little—that wasn't common. In the numerous sexual assaults I have worked, the complainant didn't want to even be near the suspect, let alone go after him. So, I thought that was a little strange, that's what she was concerned about. It was difficult to get her statement. She was—I remember she was all over the place. She was also bipolar schizoaffective, so I don't know if that had to do with anything.
. . . .
[counsel]: Were your impressions at the time the scene was staged?
. . . .
[witness]: No. I just described what I saw.
[counsel]: Officer Simpson, did you write in your report that the scene was indeed staged?
[witness]: Not in those words, I did not, no, unless I missed something.
[counsel]: Did you write in the report: I observed the scene of the crime and appeared to be staged. It did not appear a struggle and fight occurred here? Were those your words?
[witness]: Can you tell me what section of the report so I can—
[counsel]: Here you go, right here (indicating).
[witness]: That's what I wrote.
[counsel]: Did you write that because that was your impression at the time?
[witness]: Yes, sir.
. . . .
[counsel]: Judge, at this time I would request that . . . we be allowed to take this witness on as an adverse witness.
[Court]: First of all, let's get past this opinion that she's given with regard to the fact that she says it was staged. Now, she's been called as a fact witness, right? She's not called in here to be an expert as to certain scenes that may or may not be staged. I'm going to let her testify to the facts, what she observed, because I think that's why she is here, but I'm not going to let her give any speculation or an opinion with regard to staging, unless she can tell me, and you qualify her as an expert, that she's seen these scenes and she's had training in staged situations and it was ultimately shown that they were to be staged and things to look for, but I haven't heard that from her and I'll bet she doesn't have that kind of training. Go ahead, sir.
[State]: Yes, sir. I guess at this point, we'd request that defense designate their expert. They never designated her as an expert, so we—we never received notice of this witness being an expert, so I'm going to object on the basis of notice as well.
[counsel]: I didn't call her as an expert, Judge.
[Court]: All right. She's a fact witness. She can certainly testify to some of the things she just testified to, but for her to give an opinion with regard to the scene being staged, I'm not going to let her testify to that. Certainly the facts as she observed, those are all admissible information that the jury needs to consider. The jury is going to make a determination as to whether or not it was staged or not. . . .
At this point, the jury was brought back into the courtroom, and Officer Simpson-Bailey testified before the jury that she did not find the knife that appellant used in the assault. She observed the bedroom where the assault occurred and observed that the bed was "slightly unmade." She further testified that, normally in cases like this one, the officers would look for physical evidence such as "hair, ejaculation stains, [or] something," but she did not find anything like that in the complainant's apartment.
The State questioned Officer Simpson-Bailey about the details of her initial investigation as the first responding officer. She agreed with the State that she did not collect any evidence or take any photographs. The State also asked her about her experience in questioning witnesses with mental illness, like the complainant, and the officer stated that she had had only basic training in dealing with mental health issues at the time she investigated the instant offense. The State attempted to ask her about additional training she had received since the instant offense, but appellant's counsel objected on relevance grounds:
[counsel]: Objection, Judge. Relevance. It's not pertinent to the—
[State]: It's entirely pertinent. If she believes that her investigation at the time could have been improved, that's a factor the jury can hear.
[counsel]: And Judge, since we determined earlier that this is a fact witness and not an expert, I would exclude any evidence regarding her additional training since that day.
[Court]: Well, her investigation of the facts is material and I'm going to let her testify to the investigation of the facts.
Officer Simpson-Bailey then continued her testimony, agreeing with the State that her job was to investigate the scene and interview any witnesses, not to assess the credibility of the witnesses. On re-direct, appellant's counsel asked:
[counsel]: Officer Simpson, what were your impressions of the scene?
[witness]: According to my report, I thought it was staged—
[State]: Objection—
[witness]: I'm sorry.
[Court]: That's a vague question. I will sustain the objection.
[counsel]: I will move on, Judge. . . . Now, earlier [with the State] and today with me, you discussed a lot about collecting of evidence.
[witness]: Yes, sir.
[counsel]: Why didn't you collect any evidence that day?
[witness]: Well, looking now, I made a mistake. I think I—just listening to the complainant, I just didn't think she was credible. I inserted my own opinion, shouldn't have, and that's what happened.
The State did not follow its objection with a request for an instruction to the jury to disregard Officer Simpson-Bailey's statement that she thought the scene was staged. Instead, on re-cross the State asked Officer Simpson-Bailey whether her investigation suffered as a result having "developed an opinion and judgment about this case pretty quickly once [she] arrived on the scene." The officer agreed that "eventually a judgment was made" that the complainant was not credible and that she "thought there was more to the story" than what the complainant disclosed at the time. She also agreed that "as far as the scene goes . . . it's entirely plausible that the version of events that [the complainant provided] actually happened."
Both the State and appellant's counsel asked several more questions regarding Officer Simpson-Bailey's investigation, and then appellant called other witnesses not relevant to this appeal. Ultimately, the jury found appellant guilty of aggravated sexual assault, and it assessed his punishment at fifty-five years' confinement. This appeal followed.
Exclusion of Testimony
In his sole issue on appeal, appellant argues that the trial court erred in excluding relevant evidence that the scene of the alleged offense appeared to have been staged by the complainant.
A. Standard of Review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). We consider the ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court's decision if it lies within the zone of reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009).
B. Analysis
Appellant argues in his brief that Officer Simpson-Bailey qualified as an expert witness under Rule 702 and that she was permitted to testify regarding her own in-person observations of the scene under Rule 701.
The State, however, argues that appellant did not preserve this complaint for appellate review because he conceded at trial that Officer Simpson-Bailey was a fact witness, not an expert witness. To preserve error regarding the admission of evidence, a party must object in a timely fashion. TEX. R. EVID. 103(a)(1)(A); TEX. R. APP. P. 33.1(a)(1). The ground for objection, unless apparent from the context, must be stated with "sufficient specificity to make the trial court aware of the complaint." TEX. R. APP. P. 33.1(a)(1)(A). Furthermore, the issue on appeal must comport with his trial objection. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
In addressing the State's objection to Officer Simpson-Bailey's testimony, the trial court stated, "[S]he's been called as a fact witness, right? She's not called in here to be an expert as to certain scenes that may or may not be staged." The State further objected on the ground that appellant "never designated [Officer Simpson-Bailey] as an expert, so we—we never received notice of this witness being an expert, so I'm going to object on the basis of notice as well." The following exchange then occurred between appellant's counsel and the trial court:
[counsel]: I didn't call her as an expert, Judge.Later, during the State's questioning of Officer Simpson-Bailey regarding her initial investigation of the scene, appellant again recognized that she was testifying as a fact witness, stating "[S]ince we determined earlier that this is a fact witness and not an expert, I would exclude any evidence regarding her additional training since that day." The trial court again ruled that she could "testify to the investigation of the facts."
[Court]: All right. She's a fact witness. She can certainly testify to some of the things she just testified to, but for her to give an opinion with regard to the scene being staged, I'm not going to let her testify to that. Certainly the facts as she observed, those are all admissible information that the jury needs to consider. The jury is going to make a determination as to whether or not it was staged or not. . . .
Thus, the record demonstrates that appellant agreed that Officer Simpson-Bailey was testifying as a fact witness, and he stated on the record that she was not called as an expert witness. He did not ask Officer Simpson-Bailey any questions regarding the specific nature of her training or experience that might qualify her as an expert on crime scene analysis or "staging" of crime scenes. Accordingly, appellant has failed to preserve any complaint that Officer Simpson-Bailey was an expert witness or that her testimony should have been admitted on that basis. See TEX. R. APP. P. 33.1(a)(1); Clark, 365 S.W.3d at 339 (issue on appeal must comport with his trial objection).
Furthermore, to the extent that appellant argues that Officer Simpson-Bailey's testimony as a fact witness was improperly curtailed by the trial court, we conclude that he has not shown any harm. See TEX. R. APP. P. 44.2(b) (providing that any error or defect that does not affect substantial rights must be disregarded); Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008) (error in the admission of evidence is non-constitutional error and is subject to harmless error analysis).
Officer Simpson-Bailey testified about the facts as she observed them at the scene of the assault. She also testified, before the jury, that she originally concluded that the complainant lacked credibility. Indeed, in response to appellant's counsel's question regarding her "impressions of the scene," the officer stated, "According to my report, I thought it was staged[.]" The State objected to this statement, and the trial court sustained the objection, but the State never requested that the jury be instructed to disregard her testimony. See Smith v. State, 355 S.W.3d 138, 152-53 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) ("Generally, no harm results [from the exclusion of evidence] when a jury is not instructed to disregard a witness's answer after an objection is sustained. . . . Because the trial court did not instruct the jury to disregard [the witness's] answer, the answer became part of the general evidence, and no harm resulted from sustaining the objection.") (citing Johnson v. State, 925 S.W.2d 745, 750 (Tex. App.—Fort Worth 1996, pet. ref'd), and Rodriquez v. State, 903 S.W.2d 405, 410 (Tex. App.—Texarkana 1995, pet. ref'd)).
In light of the record here, we have "fair assurance" that any error in excluding Officer Simpson-Bailey's testimony that the apartment appeared staged "did not influence the jury, or had but a slight effect." See Taylor, 268 S.W.3d at 592.
We overrule appellant's sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Justices Keyes, Bland, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).