Stegall v. State

Full title: BOBBY LANE STEGALL JR., Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Jun 1, 2005

No. 05-04-01283-CR (Tex. App. Jun. 1, 2005)

Opinion

No. 05-04-01283-CR

Opinion Issued June 1, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-00510-WM. Affirmed.

Before Justices WHITTINGTON, WRIGHT, and FITZGERALD.

OPINION

Opinion By Justice WHITTINGTON.

Bobby Lane Stegall Jr. appeals his conviction for aggravated sexual assault of a child under the age of fourteen years. After finding appellant guilty, the jury assessed punishment, enhanced by a prior felony conviction, at life confinement. In three points of error, appellant contends the trial judge erred during punishment in (i) allowing the admission of certain evidence and (ii) failing to read the enhancement paragraph and take appellant's plea to the enhancement paragraph in a timely fashion. In a fourth point of error, appellant claims he received ineffective assistance of counsel during punishment. We affirm the trial court's judgment.

Admission of Evidence

In his first point of error, appellant contends the trial judge erred in admitting the State's exhibit 30, a certified copy of a prior conviction for delivery of cocaine. Under this point, appellant claims the conviction was inadmissible under article 37.07 of the code of criminal procedure because the conviction was reversed on appeal, remanded, and no further action had been taken by the State. Appellant claims the error in admitting the conviction mandates we reverse his case for new punishment hearing. We disagree. To preserve error in admitting evidence, a defendant must make a proper, timely objection and get a ruling on that objection. Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991). Failure to do so waives error. Valle, 109 S.W.3d at 509. In this case, appellant did not object to the admission of State's exhibit 30. By failing to object, appellant waives error, if any. See Valle, 109 S.W.3d at 509. We overrule appellant's first point of error.

Ineffective Assistance of Counsel

In his second point of error, appellant claims trial counsel was ineffective during punishment for failing to object to State's exhibit 30. Under this point, appellant claims counsel's failure to object allowed the evidence to be considered by the jury in assessing punishment and that a reasonable probability exists that had counsel objected, the evidence would have been excluded and a lesser punishment would have been assessed. We disagree. Initially, we note that, although appellant claims his prior conviction was reversed on appeal, remanded, and no further action had been taken by the State, nothing in the trial court record supports appellant's assertions. We may take judicial notice of the fact his conviction was reversed and remanded in an unpublished opinion issued by this Court on April 25, 2001; however, this Court has no record of what occurred in this case after it was remanded. Therefore, the appellate record does not support appellant's claim that nothing further happened in that case. Nevertheless, even if we assume appellant's contentions were accurate, we would overrule his point of error for the reasons that follow. In addressing ineffective assistance of counsel claims, we apply well-known standards. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). In brief, it is appellant's burden to show by a preponderance of the evidence (i) trial counsel's performance was deficient in that it fell below the prevailing professional norms and (ii) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability the result of the proceeding would have been different. See Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). In support of his claim that counsel was ineffective, appellant claims that, during punishment, the State was limited to admitting evidence of his "prior criminal record" as set forth in article 37.07 of the Texas Code of Criminal Procedure. The section appellant cites in his brief, however, was amended in 1993. See Act of May 29, 1993, 73d Leg. ch. 900, § 5.05, 1993 Tex. Gen. Laws 3586, 3759. The version of article 37.07, section 3(a) in effect at the time of appellant's trial provides

[r]egardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004-05) (emphasis added). Under this section, the State may introduce evidence of a defendant's extraneous crimes, bad acts, or any other matter deemed relevant to sentencing. Thus, contrary to appellant's claim that the State was limited to offering only final convictions at punishment, the law clearly allows the admission of extraneous crimes or bad acts. Because the prior conviction could have been admitted under the current version of article 37.07, section 3, we reject appellant's claim to the contrary.¹ Because the evidence was admissible, trial counsel could not be ineffective for failing to object. See Bourque v. State, 156 S.W.3d 675, 678-79 (Tex.App.-Dallas 2005, pet. filed). Finally, we note that, even were we to assume the prior conviction was inadmissible and counsel should have objected to its admission, we could not conclude appellant has shown that, but for its admission, there is a reasonable probability the result of the proceeding would have been different. Appellant's stepdaughter, E.J., testified her first memory of appellant sexually assaulting her was when she was nine years old and in the fourth grade. E.J. testified appellant sexually assaulted her approximately four times a week. When E.J. finished the fifth grade, her mother (appellant's wife) went to Spokane, Washington, leaving E.J. and her younger brother with appellant. At that point, appellant had E.J. sleep with him every night. She testified it was like she and appellant were married. According to E.J., appellant kissed her all over, rubbed her between her legs, touched her breast, and had sex with her. E.J.'s mother returned to Dallas, but E.J. and appellant continued to have sex. In 1996, when she was eleven years old, she became pregnant with appellant's child. Appellant told E.J. to claim a boy who moved to California was the father. E.J. gave birth to appellant's child when she was twelve years old. After E.J., her mother, and brother moved back to Washington, appellant visited them. E.J. and appellant had sex in Washington. E.J. testified she and appellant continued to have sex after she had the baby until E.J. was about thirteen. Thereafter, appellant moved back to Dallas but wrote to E.J., telling her he loved her. During this time, appellant was still married to E.J.'s mother. Finally, E.J. testified that when she asked appellant how long he had been sexually assaulting her, he told her it began when she was six years old. In light of E.J.'s testimony of the above facts, we cannot conclude appellant has shown there is a reasonable probability that, had his trial counsel objected to and the trial judge excluded the introduction of a previous conviction for the illegal sale of less than one gram of cocaine, the result of the punishment proceeding would have been different. We overrule appellant's second point of error.

Enhancement Paragraph

In his third point of error, appellant claims the trial judge erred in failing to read the enhancement paragraph and accepting his plea to the enhancement at the beginning of punishment. When an indictment includes a prior conviction for enhancement purposes only, the enhancement paragraph shall not be read until the punishment phase with the defendant immediately entering a plea following the reading of the paragraph. See Jones v. State, 111 S.W.3d 600, 610 (Tex.App.-Dallas 2003) (citing Tex. Code Crim. Proc. Ann. art. 36.01(a)(1), (2) (Vernon Supp. 2004-05)). The failure to read enhancements paragraphs and have a defendant enter a plea in the jury's presence is statutory error; thus, the proper harm analysis is that for reviewing non-constitutional error. Tex.R.App.P. 44.2(b); Aguirre-Mata v. State, 992 S.W.2d 495, 498 (Tex.Crim.App. 1999). When reviewing nonconstitutional error under rule 44.2(b), we need only determine whether the error affected the defendant's substantial rights. See Llamas v. State, 12 S.W.3d 469, 471 n. 2 (Tex.Crim.App. 1999); Aguirre-Mata, 992 S.W.2d at 498. In determining this, we must decide whether the error had a substantial or injurious effect on the jury's verdict. See Llamas, 12 S.W.3d at 471 n. 2. In other words, after examining the record as a whole, the appellate court must disregard the error if it has fair assurance that the error did not influence the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). The "key concern" in not reading the enhancement paragraphs and having the defendant plead to them is that the defendant could be mislead into believing the State has abandoned the enhancement paragraphs. See Turner v. State, 897 S.W.2d 786, 789 (Tex.Crim.App. 1995). If this were to happen, "the defendant could take the stand and incriminate himself for purposes other than to subject himself to an enhanced sentence." Turner, 879 S.W.2d at 789. Here, however, this did not occur because appellant did not take the stand at the punishment hearing. See Linton v. State, 15 S.W.3d 615, 621 (Tex.App.-Houston [14th Dist.) 2000, pet ref'd.). In addition, the State introduced penitentiary packets containing documents, fingerprints, and photographs evidencing appellant's prior convictions in the enhancement paragraphs and the same were admitted into evidence at the beginning of the punishment hearing. Therefore, appellant was not misled into believing the State abandoned the enhancement allegations. In light of this, we conclude the apparent failure to read the enhancement paragraphs and defendant's plea to the same at the beginning of the punishment hearing was harmless error. Appellant's substantial rights were not affected, because he received a fair and impartial trial. And the error had no substantial or injurious effect on the jury's verdict on punishment. Accordingly, we overrule appellant's third point of error.

Testifying Witness

In his final point of error, appellant contends the trial judge abused her discretion in allowing a witness to testify about "child abuse syndrome." Under this point, appellant claims the expert testimony "did not assist the trier of fact to understand the evidence in the punishment or determine a fact in issue." Appellant again argues we must reverse this cause for a new punishment hearing. Again, we disagree. We review challenges to the admission of expert testimony under an abuse of discretion standard. See Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000); Lagrone v. State, 942 S.W.2d 602, 616 (Tex.Crim.App. 1997). The testimony of a qualified expert is generally admissible when scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact issue. Tex. R. Evid. 702. Thus, the trial judge has the gatekeeper function of ensuring that expert testimony is both (i) based on a reliable foundation and (ii) relevant to the issues in the case. Sexton v. State, 93 S.W.3d 96, 99 (Tex.Crim.App. 2002); see also Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 728 (Tex. 1998) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)). During punishment, appellant objected to Cindy Alexander's testimony on the grounds that (i) it was "cumulative, everything that has already been testified to" and (ii) Alexander was not qualified to testify on the subject. On appeal, appellant does not attack either of these grounds; rather, he claims her testimony "did not assist the trier of fact to understand the evidence in the punishment or determine a fact in issue." Because appellant's complaint on appeal does not comport with the objection below, we conclude he has not preserved this issue for our review. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004) ("[i]t is well settled that the legal basis of a complaint raised on appeal cannot vary from that raised at trial."); Routier v. State, 112 S.W.3d 554, 586 (Tex.Crim.App. 2003 ("Because the objection at trial does not comport with her complaint on appeal, these complaints are not preserved for review."). We overrule appellant's final point of error. We affirm the trial court's judgment.