Opinion
No. 05-10-01272-CR
03-21-2012
JAMES ALAN KUNKEL, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed March 21, 2012
On Appeal from the 59th District Court
Grayson County, Texas
Trial Court Cause No. 057552
OPINION
Before Justices Moseley, Fitzgerald, and Richter
Opinion By Justice Richter
A jury found appellant guilty of aggravated sexual assault of a child and indecency with a child by sexual contact. The jury sentenced appellant to sixty-five years in prison for aggravated sexual assault of a child and twenty years for indecency with a child, to run concurrently. Appellant raises two issues on appeal, misapplication of the outcry statute and improperly admitted extraneous conduct which created unfair prejudice. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
BACKGROUND
Appellant and Aleshia Randall (“AR”) married in 2008 after dating for two months. Upon their marriage, appellant and AR moved into an apartment along with AR's 4 year-old daughter, RMK. After approximately four months of marriage, RMK told her mother she had a dream about appellant sexually assaulting her. AR, appellant and RMK sat down and discussed RMK's dream and AR assured RMK appellant would never do those things to her. Approximately eight months later, while the family was in Chicago visiting relatives, RMK told her aunt, Denise Krebs (“Ms. Krebs”) who was also RMK's nanny and appellant's sister, allegations of being sexually assaulted by appellant. Ms. Krebs confronted appellant and relayed the allegations to RMK's mother. Days later, upon returning home to Texas, RMK's mother called the police and reported the incident. Appellant was charged by indictment for continuous aggravated sexual assault of a child.
During the trial, RMK testified she had told her aunt about all of the allegations. Ms. Krebs, the aunt, testified as an outcry witness that RMK told her about two different sexual acts performed by appellant against RMK. Martha Nuckols (“Ms. Nuckols”), a forensic interviewer from the Children's Advocacy Center, testified as an outcry witness regarding a third sexual act performed by appellant against RMK.
A jury found appellant guilty of two lesser included offenses, aggravated sexual assault of a child and indecency with a child by sexual contact. The jury assessed punishment at concurrent terms of sixty-five years and twenty years in prison, respectively. On appeal, appellant raises two issues: 1) improper hearsay was admitted due to a misapplication of the “outcry” statute; and 2) the trial court improperly admitted extraneous conduct which created unfair prejudice. DISCUSSION
Outcry statute
We review the trial court's determination as to the admissibility of testimony of an outcry witness for abuse of discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). The trial court has broad discretion in determining the admissibility of such evidence and the findings will be upheld when they are supported by the evidence. Id. When a statement allowed by the trial court constitutes inadmissible hearsay or bolstering that resulted in trial court error, we must also determine whether the error requires reversal. See Tex. R. App. P. 44.2.
Article 38.072 provides an exception to the hearsay rule for testimony by “outcry” witnesses. See Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 2011). An outcry witness is not person-specific, but event-specific. West v. State, 121 S.W.3d 95, 104 (Tex. App.-Fort Worth 2003, pet. ref'd.). There may be only one outcry witness to each single event and the proper witness is the first adult person other than the defendant to whom the victim made a statement describing the incident. Id. Multiple outcry witnesses can testify about separate instances of sexual abuse committed by the appellant if each witness is the first person to whom the child victim relayed information about the separate incidents. Josey v. State, 97 S.W.3d 687, 693 (Tex. App.-Texarkana 2003, no pet.) (forensic interviewer could testify about victim's outcry regarding digital penetration because victim's previous outcry to mother was about forced oral sexual acts).
In his first issue, appellant asserts the trial court erred by admitting the testimony of a counselor, Ms. Nuckols, as an outcry witness. Appellant contends the trial court had already designated Ms. Krebs as the outcry witness but then improperly allowed Ms. Nuckols testimony, allowing hearsay that improperly bolstered perhaps the most graphic of the alleged sexual contacts. RMK testified at trial that Ms. Krebs was the first person she told about the sexual acts that was over the age of 18 years-old. The first outcry witness called to testify was Ms. Krebs, RMK's aunt/nanny. Ms. Krebs testified RMK approached her while they were on a family trip in Chicago and reported two sexual acts made against RMK by appellant. RMK told Ms. Krebs about appellant putting his “pee pee” in RMK's mouth and appellant making RMK touch his penis with her hand. Ms. Krebs further testified that she did not let RMK tell her more because it was too upsetting for Ms. Krebs to hear. Later, the state called Ms. Nuckols to testify also as an outcry witness. Ms. Nuckols interviewed RMK at the Children's Advocacy Center and RMK detailed an incident where the appellant forced RMK to lay naked, on her stomach, on her bed while he climbed on top of her, naked, and was going “back and forth.” The record shows RMK told Ms. Krebs about two sexual acts and told Ms. Nuckols about a third, separate sexual act committed by the appellant. We conclude that only one outcry witness to each of the victim's statements, about a single event, testified at trial. We overrule appellant's first issue.
Extraneous Conduct
To preserve error for appeal, the accused must lodge a timely objection to the admission of testimony at trial.Tex. R. App. P. 33.1(a)(1); See also Sattiewhite v. State, 786 S.W.2d 271, 283 (Tex. Crim. App. 1989). A timely and specific objection informs the trial court of the basis of the objection and allows the court the opportunity to rule on the specific objection as the evidence is introduced. Sattiewhite, 786 S.W.2d at 283 (citing Goodman v. State, 701 S.W.2d 850 (Tex. Crim. App. 1985). Further, the point of error on appeal must correspond to the objection made at trial. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).
In his second issue, appellant contends the trial court improperly admitted extraneous conduct which created unfair prejudice. In the sentencing phase of the trial, RMK's babysitter, who was 16 years-old at the time, testified that appellant “started to kiss [her] and he unbuttoned [her] pants and he stuck his hand down [her] pants.” Appellant complains that whether or not he attempted to improperly touch a 16 year-old babysitter is not probative as to the allegations of molesting his step-daughter. However, the record shows appellant's counsel failed to object to any of the testimony given by the babysitter, we therefore conclude he failed to preserve this complaint for our review. Tex. R. App. P. 33.1(a)(1).
Further, appellant complains his own testimony, given on cross-examination regarding “young women” he communicated with on the internet, was not probative and created unfair prejudice. The only objection during appellant's cross-examination about young women on the internet was based on “facts that clearly are not in evidence,” which was sustained and the jury was instructed to disregard the question. See Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993) (an appellant may not complain on appeal if he receives all the relief he requested at trial). Further, AR had already testified about appellant going to Michigan to meet an eighteen year-old girl he met online. See Mitchell v. State, 68 S.W.3d 640, 643 (Tex. Crim. App. 2002) (when the same evidence is introduced from another source, without objection, the defendant is not in position to complain on appeal). Because appellant did not pursue his objection as to the extraneous conduct testimony, we conclude he failed to preserve this complaint for our review. Tex. R. App. P. 33.1(a)(1).
CONCLUSION
Having resolved appellant's two issues against him, we affirm the trial court's judgment.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101272F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JAMES ALAN KUNKEL, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01272-CR
Appeal from the 59th District Court of Grayson County, Texas. (Tr.Ct.No. 057552).
Opinion delivered by Justice Richter, Justices Moseley and FitzGerald participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 21, 2012.
MARTIN RICHTER
JUSTICE