Rose v. State

Full title: JAMES LOUIS ROSE, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 19, 2004

No. 05-02-01183-CR (Tex. App. Mar. 19, 2004)

Opinion

No. 05-02-01183-CR.

Opinion Filed March 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 219^th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-80718-01. Affirm.

Before Justices MORRIS, WRIGHT, and RICHTER.

OPINION

Opinion By Justice RICHTER.

James Louis Rose appeals his jury conviction for aggravated sexual assault of a child younger than fourteen years of age. In three points of error, appellant complains about the trial court's refusal to grant a mistrial, the admission of certain evidence, and charge error. We affirm.

Background

Appellant, the complainant's father, was charged in a single indictment with one count of aggravated sexual assault of a child and one count of indecency with a child. See Tex. Pen. Code Ann. §§ 21.11, 22.021 (Vernon 2003 Supp. 2004). Each count contained multiple paragraphs alleging different sexual assault acts and acts of indecency. Count one consisted of three paragraphs and alleged appellant caused (1) the complainant's sexual organ to contact appellant's mouth, (2) the complainant's mouth to contact appellant's sexual organ, and (3) the penetration of the complainant's sexual organ by means of appellant's finger. See id. § 22.021(a)(1)(B)(i), (iii), (v), (2)(B) (Vernon Supp. 2004). Count two consisted of two paragraphs and alleged appellant engaged in sexual contact by touching the complainant's genitals with his hand and by causing the complainant's hand to touch part of appellant's genitals. See id. § 21.11(a)(1) (Vernon 2003). At trial, the State presented evidence consistent with each of the acts alleged in the indictment. Among the witnesses testifying for the State were the complainant, the complainant's mother who testified as the outcry witness, a sexual assault nurse examiner (SANE), the complainant's two babysitters, and the Child Protective Services (CPS) investigator. At the conclusion of the State's case-in-chief and again at the charge conference, appellant requested that the State be required to elect upon which paragraph in each count it would proceed. The trial court denied the requests each time and, in the charge, included separate application paragraphs for each act alleged in the two counts. However, the charge instructed the jury to consider whether appellant was guilty of indecency with a child only if it acquitted appellant of aggravated sexual assault. The jury returned a general verdict, finding appellant guilty of aggravated sexual assault of a child "as charged in the indictment," and assessed punishment at life confinement and a $10,000 fine.

Denial of Motion for Mistrial

In his first point of error, appellant contends the trial court erred in denying his motion for mistrial after the prosecutor asked the CPS investigator whether she "believe[d] beyond a reasonable doubt" the complainant had been sexually assaulted. This question followed the investigator's testimony that "civilly," what the complainant had disclosed to her was sufficient for CPS involvement. Before the investigator could answer the question, appellant objected, arguing the question invaded the jury's province. The trial court sustained the objection and, at appellant's request, instructed the jury to disregard. The trial court, however, denied appellant's request for a mistrial. Appellant now maintains the court's ruling was erroneous and the instruction to disregard insufficient because the question "contaminate[d] the jury's deliberations and their consideration of all of the evidence." We disagree. We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). Except in extreme cases where the question is clearly calculated to inflame the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on the juror's minds, error from an improper question can be cured or rendered harmless by an instruction to disregard. Id.; Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex.Crim.App. 1990). In determining the effectiveness of an instruction, we look at the particular facts of each case, balancing the magnitude of the probable effect of the question on the jury against the probable efficacy of the instruction. Sands v. State, 64 S.W.3d 488, 493 (Tex. App.-Texarkana 2001, no pet.). In this case, the record reflects appellant did not seek a more emphatic instruction. The record further reflects the investigator was the last witness in the State's case-in-chief. The question came towards the end of her testimony, after appellant had cross-examined her at least twice, and appeared to be in response to appellant's attempt to attack her credibility. By the time the investigator testified, at least four other witnesses had already testified about the assaults. In addition, the complainant had testified, giving the jury an opportunity to observe her demeanor and assess her credibility. Given the record before us, we conclude the trial court's instruction to disregard was effective and rendered harmless any prejudice caused by the complained-of question. See Kimball v. State, 24 S.W.3d 555, 562 (Tex. App.-Waco 2000, no pet.) (improper question unlikely affected jury's deliberations where, among other factors, totality of evidence supported conviction); Fletcher v. State, 852 S.W.2d 271, 275-76 (Tex. App.-Dallas 1993, pet. ref'd) (improper question unlikely affected jury's deliberation where, among other factors, appellant failed to request more emphatic instruction); Adams v. State, 642 S.W.2d 211, 212 (Tex. App.-Houston [14^th Dist.] 1982, no pet.) (instruction cured any error from improper question where valid purpose appeared behind question). Accordingly, the trial court did not abuse its discretion in denying appellant's motion for mistrial. We overrule appellant's first point of error.

Charge Error

In his second point, appellant complains of charge error stemming from the trial court's failure to require the State to elect upon which of the various paragraphs under each count of the indictment it intended to rely for conviction. As stated, the charge included separate application paragraphs for each act alleged in the two counts and instructed the jury to consider whether appellant was guilty of indecency with a child only if it acquitted appellant of aggravated sexual assault. The relevant portion of the charge read as follows:

Now, if you find from the evidence beyond a reasonable doubt that . . . the defendant . . . did then and there intentionally or knowingly cause the female sexual organ of [the complainant], a child then younger than fourteen (14) years of age and not the spouse of the defendant, to contact the mouth of the defendant . . . then you will find the defendant guilty of Aggravated Sexual Assault of a Child as charged in the indictment.

Or, if you find from the evidence beyond a reasonable doubt that . . . the defendant . . . did then and there intentionally or knowingly cause the mouth of [the complainant], a child then younger than fourteen (14) years of age and not the spouse of the defendant, to contact the male sexual organ of the defendant . . . then you will find the defendant guilty of Aggravated Sexual Assault of a Child as charged in the indictment.

Or, if you find from the evidence beyond a reasonable doubt that . . . the defendant . . . did then and there intentionally or knowingly cause the penetration of the female sexual organ of [the complainant], a child then younger than fourteen (14) years of age and not the spouse of the defendant, by means of the defendant's finger . . . then you will find the defendant guilty of Aggravated Sexual Assault of a child as charged in the indictment.

Unless you so find from the evidence beyond a reasonable doubt or if you have a reasonable doubt thereof that the defendant is guilty of Aggravated Sexual Assault of a Child, you will acquit the defendant of Aggravated Sexual Assault of a Child and next consider [Indecency with a Child.]

* * *

Now, if you find from the evidence beyond a reasonable doubt that . . . the defendant . . . did then and there intentionally or knowingly, with the intent to arouse or gratify the sexual desire of said defendant, engage in sexual contact by touching part of the genitals of [the complainant], a chid younger than seventeen (17) years of age and not the spouse of the defendant, by means of the defendant's hands . . . then you will find the defendant guilty of Indecency with a Child by Contact as charged in the indictment.

Or, if you find from the evidence beyond a reasonable doubt that . . . the defendant . . . did then and there intentionally or knowingly, with the intent to arouse or gratify the sexual desire of said defendant, engage in sexual contact by causing the hand of [the complainant], a child younger than seventeen (17) years of age and not the spouse of the defendant, to touch part of the genitals of said defendant . . . then you will find the defendant guilty of Indecency with a Child by Contact as charged in the indictment.

At the charge conference, appellant argued this charge improperly allowed the jury to find him guilty of either offense without necessarily agreeing on the underlying sexual act or act of indecency. For example, the jury could find him guilty of aggravated sexual assault, with some jurors finding he caused the complainant's sexual organ to contact appellant's mouth; others finding he caused the complainant's mouth to contact appellant's sexual organ; and still others finding he caused the penetration of the complainant's sexual organ by means of appellant's fingers. Citing Francis v. State, 36 S.W.3d 121 (Tex.Crim. App. 2000) (op. on reh'g), appellant argued each of the sexual acts and acts of indecency were separate offenses, not different means of committing the alleged offenses, and required jury unanimity for a conviction. To ensure a unanimous verdict, appellant maintained, the State needed to elect one act under each count upon which it would proceed. On appeal, appellant complains of that portion of the charge instructing the jury to consider indecency with a child only if it acquitted appellant of aggravated sexual assault. Citing only two cases and without providing an analysis of those cases and their application to the facts at hand, appellant maintains this instruction was improper because

[when] the defendant demands an election, either the State must elect which count to proceed on when submitting the pleading to the fact-finder, or the counts must be considered in a conditional manner, Lewis v. State, 638 S.W.2d 148 (Tex.Crim.App. 1982-Reh.denied) [sic]. When the counts are conditionally submitted, the court should not instruct the jury to consider any particular count before another but should instruct the jury to convict on only one of the counts, Hite v. State, 650 S.W.2d 778 (Tex.Crim.App. 1983).

Appellant then summarily and without citing any authority states that "[the charge], to Appellant's harm, instructed the jury not to consider the Indecency with a Child by Contact count unless Appellant was acquitted of Aggravated Sexual Assault of a Child." We do not address the merits of this point of error because appellant's complaint on appeal is different from his objection at trial. An objection in the trial court that does not comport with a complaint on appeal does not preserve error. See Tex. R. App. P. 33.1(a); Guevara v. State, 97 S.W.3d 579, 582 (Tex.Crim. App. 2003). Moreover, under rule of appellate procedure 38.1(h), a brief to this Court must contain a clear and concise argument for the issues or points raised, appropriate citations to authorities, and substantive analysis. Tex. R. App. P. 38.1(h); Walder v. State, 85 S.W.3d 824, 827 (Tex. App.-Waco 2002, no pet.). An issue or point which has no substantive analysis, such as appellant's, is inadequate and presents nothing for review. See Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App. 2000); Billy v. State, 77 S.W.3d 427, 429 (Tex. App.-Dallas 2002, pet. ref'd). We overrule appellant's second point of error.

Admission of Evidence

In his third point of error, appellant complains about the admission of certain portions of the testimony of the SANE, the complainant's two babysitters, and the CPS investigator. Specifically, appellant complains the trial court erred in allowing these witnesses to testify, over his hearsay objection, about statements made by the complainant describing the alleged sexual assaults. Appellant maintains he was harmed by these hearsay statements and his conviction should be reversed. We disagree. We review rulings on the admissibility of evidence under an abuse of discretion standard. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991). We will find a trial court's ruling on the admissibility of evidence to be reversible error when the court acts without reference to any guiding principles and appellant has been harmed. See Tex. R. App. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). We will find no reversible error in the improper admission of evidence if the same facts are admitted elsewhere without objection. Josey v. State, 97 S.W.3d 687, 698 (Tex. App.-Texarkana 2003, no pet.); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.-Houston [1^st Dist.] 2002, pet. ref'd). Of course, to preserve a hearsay objection, a timely and specific objection to the evidence must be made at trial. Thornton v. State, 994 S.W.2d 845, 853 (Tex. App.-Ft. Worth 1999, pet. ref'd). In this case, although appellant maintains he objected to the complained-of testimony of each of the four witnesses, our review of the record reflects appellant objected to only three of them, the SANE, the CPS investigator, and one of the babysitters, Summer Posey. We find no objection in the record to the testimony of the other babysitter, Tonia Jenkins, who testified to each of the alleged assaults and whose testimony was similar to the complained-of testimony of the other three witnesses. We conclude appellant failed to preserve his complaint with respect to Jenkins and that any error in the admission of the testimony of the other three witnesses was harmless. See Josey, 97 S.W.3d at 698; Duncan, 95 S.W.3d at 672; Thornton, 994 S.W.2d at 853. We overrule appellant's third point of error. We affirm the trial court's judgment.