Opinion
No. 05-09-01185-CR
Opinion Filed March 17, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F08-60506-J.
Before Justices RICHTER, LANG, and MYERS.
MEMORANDUM OPINION
A jury convicted appellant, Leonardo Devinci Whitaker, of continuous sexual abuse of a child under 14 years of age, and sentenced him to imprisonment for thirty-two years. In one issue, appellant complains the trial court erred by admitting complainant's written statement into evidence. Because the facts are well-known to the parties, we need only address those necessary to disposition of this appeal and issue this memorandum opinion. Tex. R. App. P. 47.4. We affirm the trial court's judgment. In his sole issue, appellant claims the trial court erred in admitting the complainant's written statement into evidence because the statement constituted hearsay, improperly bolstered the complainant's testimony and suggested an extraneous offense involving appellant and his cousin. Our review of the record reflects that complainant's written statement was first addressed by defense counsel during his cross-examination of the complainant. When asked about her first sexual encounter with appellant, the complainant testified that she told appellant to stop. Defense counsel asked complainant if she ever told appellant it was okay and she responded "[n]o, I never did say anything." Defense counsel then asked if she remembered giving a written statement to the police. Handing complainant a copy of her statement, defense counsel asked her to read it, and asked if she remembered differently now that she had seen what she had written in the statement. Defense counsel then attempted to impeach the complainant by reading a portion of her statement to the jury. The State objected that this was improper impeachment and the trial court sustained the State's objection. On redirect, the State offered the complainant's written statement into evidence as State's Exhibit 3. Defense counsel objected to admissibility because the statement was an out-of-court statement and hearsay. The trial court overruled defense counsel's objection and admitted the statement into evidence. The statement was then published to the jury. Before the case went to the jury, defense counsel re-urged his objection to the admissibility of complainant's statement on hearsay grounds, and also argued the written statement contained extraneous matters suggesting a sexual relationship between appellant and his cousin. The trial court again overruled defense counsel's objection. Defense counsel requested and the trial court included a limiting charge with respect to extraneous offenses. We review a trial court's evidentiary rulings under an abuse of discretion standard. Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). As long as the trial court's decision is within the zone of reasonable disagreement and is correct under any theory of law applicable to the case, we will uphold the trial court's decision. Bowley, 310 S.W.3d at 434; Stevenson v. State, 304 S.W.3d 603, 616 (Tex. App.-Fort Worth 2010, no pet.). We do this even if the trial court failed to give any reason or used the wrong reason for the ruling. Bowley, 310 S.W.3d at 434; Carter v. State, 145 S.W.3d 702, 707 (Tex. App.-Dallas 2004, pet. ref'd). The defense raised a hearsay objection to the admissibility of complainant's written statement. Hearsay statements are generally not admissible unless the statement falls within a recognized exception to the hearsay rule. Tex. R. Evid. 801(d); Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). However, evidence that is otherwise inadmissible may become admissible when a party opens the door to such evidence. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009). A party opens the door by leaving a false impression with the jury that invites the other side to respond. Hayden, 296 S.W.3d at 554. According to the record, the trial court overruled the defense's hearsay objection without asking the State to specify which hearsay exception it relied upon. On appeal, the State contends complainant's written statement is not hearsay because it was not offered to prove the truth of the matter asserted, but was offered in response to the defense's inquiries about the statement on its cross-examination of the complainant. Evidence that is otherwise inadmissible may be admitted to reduce the possibility of the jury receiving a false impression from hearing only a part of some act, conversation, or writing. See Hayden, 296 S.W.3d at 554; Walters, 247 S.W.3d at 218. We conclude the trial court did not err in overruling the defense's hearsay objection to the admissibility of the complainant's written statement. We further conclude the trial court did not err in overruling defense counsel's objection to the admissibility of the complainant's written statement because it contained extraneous matters outside the evidence in this case dealing with something appellant used to do with a cousin. According to the record, complainant testified about this suggested extraneous offense during direct examination and without objection by the defense. Complainant testified that before their first sexual encounter, appellant asked her if she wanted to do what he and his cousin did. The complainant testified that she knew appellant was referring to sex, and she told him she did not want to do it. Complainant's written statement describes the same conversation between complainant and appellant and what he and his cousin used to do. Complainant's written statement was admitted into evidence after cross-examination of complainant. At the time, the defense objected to the admissibility of the written statement on the basis of hearsay. Some time later, the defense raised an extraneous offense objection to the admissibility of complainant's written statement because it suggested appellant had sex with his cousin. The improper admission of evidence is harmless if the same evidence is admitted elsewhere without objection. See Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Because the suggestion that appellant had sex with his cousin was first admitted, without objection, during complainant's direct testimony, we overrule appellant's extraneous offense complaint. Appellant also complains that reading complainant's written statement to the jury served only to bolster the complainant's testimony. "Bolstering" is evidence offered for the sole purpose of enhancing the credibility of a witness or source of evidence without substantively contributing to relevance. Rivas v. State, 275 S.W.3d 880, 886 (Tex. Crim. App. 2009) (citing Cohn v. State, 849 S.W.2d 817, 819-20 (Tex. Crim. App. 1993)). Appellant did not complain about the alleged bolstering effect of complainant's written statement to the trial court. As a prerequisite to presenting a complaint for appellate review, a party must make a timely request, objection, or motion that states the grounds for the ruling desired with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. See Tex. R. App. P. 33.1(a)(1)(A). Moreover, the legal basis of a complaint raised on appeal must comport with the complaint raised at trial. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). We conclude appellant did not preserve his bolstering objection for appeal.