Opinion
No. 12-06-00293-CR
Opinion delivered September 5, 2007. DO NOT PUBLISH.
Appeal from the 7th Judicial District Court of Smith County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
MEMORANDUM OPINION
Jefferson Moore, Jr. appeals from his conviction for aggravated sexual assault of a child. In three issues, he argues that the trial court should have granted his motion for a mistrial and that the trial court should not have admitted certain evidence. We affirm.
BACKGROUND
Because Appellant does not contest the sufficiency of the evidence, we will briefly state the facts that support the conviction. Appellant ran a day care center in Dogwood City, outside of Tyler, Texas. The complaining witness is a girl who was eight years old at the time of trial and had been a student at Appellant's center. She reported that Appellant had penetrated her sexual organ with his finger and penetrated her anus with his penis. She was examined by a nurse. The examination revealed an abrasion on her anus consistent with the report. Appellant was indicted for the felony offense of aggravated sexual assault of a child. He pleaded not guilty, and a jury trial was held. The jury found him guilty. After a separate punishment hearing, the jury assessed punishment at life imprisonment. This appeal followed.MOTION FOR MISTRIAL
In his first issue, Appellant argues that the trial court should have granted his motion for a mistrial. While his attorney was talking with a potential juror during his voir dire examination, Appellant turned to the trial court judge and told him that he felt faint. The trial court summoned the lawyers to the bench and then excused the potential jurors. Appellant's counsel told the court that he heard jurors laughing at his client and belittling whatever it was that happened to him and moved for a mistrial. The court stated that it was watching the jurors as they left the courtroom, and that its observation was different. The court took the matter under advisement. The next morning, following the arguments of counsel, the trial court overruled Appellant's motion for a mistrial. We review a trial court's ruling on a motion for a mistrial for an abuse of discretion. See Wead v. State , 129 S.W.3d 126, 129 (Tex.Crim.App. 2004) (citing Ladd v. State , 3 S.W.3d 547, 567 (Tex.Crim.App. 1999)). Appellant now asks this court to remand this matter for an evidentiary hearing to determine if any of the jurors made disparaging comments about him and whether the comments caused bias or prejudice. This request is in the nature of an admission that no such evidence is in the record. Appellant was given an opportunity to offer evidence the following morning and never asked the trial court to gather or receive the kind of evidence Appellant now wishes to have in the record. Nor was this type of evidence offered in a motion for new trial. In his reply brief, Appellant states that the "true issue is whether the trial court erred in failing altogether to investigate the alleged misconduct." Appellant never requested this relief from the trial court. The trial court would have been within its rights to inquire of the potential jurors about what they saw or said, but we are not convinced that it was required to do so. The trial court observed the incident and took careful measures to protect Appellant when he indicated that he had become ill. The trial court watched the jurors as they left the courtroom and did not hear or see any discussions that caused it concern. In fact, the trial court stated that it had escorted the jurors out and its impression was that the potential jurors appeared to be genuinely concerned for Appellant. Appellant has not shown that the trial court abused its discretion. We overrule Appellant's first issue.VIDEOTAPED STATEMENT OF THE COMPLAINING WITNESS
In his second issue, Appellant argues that the trial court erred when it admitted the hearsay statements of the complaining witness. Specifically, he argues that a videotaped statement of the complaining witness should not have been admitted because he was denied his right to cross examine her and because the trial court did not follow the proper procedures for the admission of hearsay statements of child victims of sexual assault.Facts
The eight year old complaining witness testified. During her direct testimony, she asked to take a break. Shortly after her testimony resumed, the witness lost her composure, and the trial court determined that she was not able to continue. Because the witness could not continue, the trial court suggested that Appellant be permitted to cross examine her via closed circuit television or that the parties conduct a videotaped deposition. A videotaped deposition was settled upon and was to occur the following morning. In the interim, the State offered a videotaped statement of the complaining witness. Appellant did not object. The following morning the parties attempted to take the complaining witness's deposition. She was examined on direct examination, and Appellant's counsel had begun to cross examine her. During the cross examination, or during a break, the witness lost her composure and was unable to regain it. The trial court found her to be unavailable and, with the agreement of the parties, ordered that the incomplete deposition not be admitted.Analysis
Appellant did not object when the videotape was admitted. To preserve a complaint for appeal, a defendant must object, state the grounds for the objection with sufficient specificity, and obtain an adverse ruling. TEX. R. APP. P. 33.1 (a)(1)(A); Wilson v. State , 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). Because of the unusual factual scenario presented, we agree with Appellant that his failure to object when the taped interview was offered did not necessarily waive the present complaints. At the time the tape was offered, Appellant anticipated that the complaining witness would be available for cross examination the following morning. While conducting the videotaped deposition, it became clear to the parties that the witness was unlikely to be able to continue. Confronting this possibility, the trial court asked Appellant's counsel if he had sufficient time to consult with his client and asked for "any proposals on the Defense side." Counsel said he had had enough time, and the following colloquy occurred:[Appellant's Counsel]: No, except that based on [the prosecutor's report] to the Court about [the complaining witness's] emotional condition, if you're inclined to exclude her video testimony [the deposition] then I concur with that. That's what I'd like for you to do.
The Court: In other words, you, the Defense, would not seek to have me show the jury what we have been able to get; it's either finish with her, which we're not going to be able to do, or show them nothing?
[Appellant's Counsel]: Correct, because I haven't finished my cross-examination.The court then found the witness to be unavailable and recited that it had previously admitted the oral statement, the videotaped statement, of the complaining witness. Counsel had discussed the fact that he had been unable to complete his cross examination of the complaining witness, and the present Confrontation Clause complaint was ripe at that point. See Johnson v. State , 878 S.W.2d 164, 167-68 (Tex.Crim.App. 1994)("An objection is timely if it is raised as soon as the ground of objection becomes apparent . . . that is, as soon as the defense knows or should know that an error has occurred."); Sierra v. State , 482 S.W.2d 259, 262-63 (Tex.Crim.App. 1972). Furthermore, any trial court error in the application of Texas Code of Criminal Procedure, Articles 38.071 and 38.072 was ripe. Appellant did not raise an objection on either basis. The only relief Appellant sought was the exclusion of the partially completed videotaped deposition. That relief was granted. Appellant's failure to raise the present complaints when it was clear that the witness would not be available for cross examination waived these complaints. We overrule Appellant's second issue.