TIMOTHY KALLA v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Francis

Timothy G. Kalla appeals his convictions for two counts of aggravated sexual assault of a child under the age of fourteen years and two counts of indecency with a child.   After finding appellant guilty on all four counts, the jury assessed punishment at twenty years in prison for each aggravated sexual assault offense and two years in prison for each indecency offense.   In two issues, appellant claims the trial court abused its discretion by refusing to allow appellant's brother to testify at trial and the State violated appellant's due process rights by pursuing a certain line of questioning.   We affirm.

In 2002, three-year-old A.D. and her mother were living in California.   A.D.'s mother was dating a man in the military named Mark Kalla.   Appellant, Mark's brother, was also in the military serving in Iraq. A.D.'s mother and Mark broke up before he too was sent to Iraq in mid-January 2003.   In the fall of 2003, appellant returned to California and began dating A.D.'s mother.   The two married shortly thereafter and had two children together.   In 2006, the family moved to Wylie, Texas.   In May 2008, A.D. told her mother appellant was sexually abusing her.   Following an investigation, appellant was charged with two counts each of aggravated sexual assault and indecency with a child.

In his first issue, appellant claims the trial court abused its discretion by refusing to allow appellant's brother, Mark, to testify.   We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard.   See McCarty v. State, 257 S.W.3d 238, 239 (Tex.Crim.App.2008).   The trial court abuses its discretion when the decision lies outside the zone of reasonable disagreement.  Id.

When a party invokes rule of evidence 614, “the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses.”  Tex.R. Evid. 614.   The rule is designed to prevent witnesses from altering their testimony, consciously or not, based on other witnesses' testimony.  Routier v. State, 112 S.W.3d 554, 590 (Tex.Crim.App.2003).   In determining whether the trial court erred by excluding the testimony of a witness for violating the rule, we consider whether (1) the circumstances tend to show appellant or his counsel “consented, procured or otherwise had knowledge of the witness's presence in the courtroom, together with knowledge of the content of that witness's testimony” or (2) the excluded testimony was crucial to the defense.  Id. (Citing Webb v. State, 766 S.W.2d 236, 245 (Tex.Crim.App.1989)).

During trial, A.D. testified appellant licked her private parts, rubbed the outside of her private part with his hand, and made her squeeze his private part with her hand.   Taking the stand, appellant denied committing the offenses.   Appellant then sought to call Mark who had not been designated a witness and had been present in the courtroom for most of the trial.

In a hearing outside the presence of the jury, appellant made an offer of proof concerning Mark's testimony.   While Mark was dating A.D.'s mother, three-year-old A.D. saw them having sexual relations and asked, “What are you doing?”   A.D. also asked, “Why are you putting your d-i-c-k in my mommy?”   Mark was lying on top of A.D.'s mother at the time, penetrating her vagina with his penis.   He conceded there was a blanket covering them and that A.D. could not see anything but said she was standing next to the bed at the time.   He also testified A.D. knew the word “sex” and said it “numerous times while [they] were at the house.”   According to Mark, this was the only sexual act A.D. could have seen while he was at their house.   The State objected to allowing Mark to testify because Mark had been in the courtroom for most of the trial and noted the testimony did not “rebut anything at issue in this case.”   Based on the content of the testimony and the fact the rule had been invoked, the trial court did not allow Mark's testimony.

As was the case in Routier, the issue of whether the excluded testimony was crucial to the defense is dispositive in appellant's case.   Appellant argues Mark's testimony was highly important to dispute the State's theory A.D. had no prior knowledge or experience that would allow her to make the allegations or give the type of graphic sexual details she gave at trial and would have explained how A.D. knew about sex.   However, A.D.'s mother previously testified at trial and could have been recalled by the defense to testify about whether she had sex with Mark in A.D.'s presence.   Appellant chose not to do so.   Furthermore, the testimony Mark offered about the sexual relations he had with A.D.'s mother did not include any sexual acts like the acts appellant performed on A.D. Thus, contrary to appellant's argument, Mark's testimony would not explain A.D.'s knowledge of those acts.   We conclude the excluded testimony was not crucial to appellant's defense and the trial court did not abuse its discretion in excluding Mark as a witness at trial.   We overrule appellant's first issue.

In his second issue, appellant claims the State violated his due process rights to a fair trial by telling the jury he shot a child while serving in the military in Iraq.

During trial, appellant said he enlisted in the military and served four years of active duty, including nine months in Iraq. He suffered war injuries while in Iraq and returned to the United States in the fall of 2003.   Appellant received an “honorable discharge with one Alpha of reenlistment code, which is the highest you can get.”   In addition, he was awarded the Iraqi Campaign Medal, the National Defense Medal, and the Global War on Terrorism Medal.

During cross-examination, appellant testified his job in Iraq was to “fight a war,” specifically to “locate ․ and destroy the enemy with fire and maneuver and to repel the enemy's assault with fire.”   When asked if he did anything in Iraq he was not proud of, he replied affirmatively but would not give details.   The prosecutor then asked if he killed a child while on duty in Iraq. Appellant responded, “Ma‘am, I can't go into details about certain things over there.”   When the prosecutor asked, “Would that include shooting a child that you weren't-“, appellant again responded, “Ma‘am, I can't go into details about certain things over that.”   The prosecutor then asked five other questions before defense counsel objected that the line of questioning was irrelevant.   Outside the presence of the jury, the trial court heard the arguments of counsel and then sustained appellant's objection.   Appellant did not ask for an instruction to disregard the testimony nor did he request a mistrial.   When the jury returned, the prosecutor continued questioning appellant but did not refer to that line of questioning.

We question whether appellant preserved this issue for our review.   To preserve a complaint for appellate review, a party must make a timely, specific objection in the trial court.  Tex.R.App. P. 33.1(a)(1)(A);  Layton v. State, 280 S.W.3d 235, 238-39 (Tex.Crim.App.2009);  Harrison v. State, 187 S.W.3d 429, 433 (Tex.Crim.App.2005).   If a defendant fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely, and any claim of error is forfeited.  Luna v. State, 268 S.W.3d 594, 604 (Tex.Crim.App.2008).   The complaining party also must obtain an adverse ruling from the trial court to preserve error for review.  Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App.1999).

Here, appellant's objection to the State's line of questioning was untimely because the question was asked and answered, then several other questions were asked and answered before appellant objected.   Appellant has shown no legitimate reason for the delay.   Furthermore, appellant failed to obtain an adverse ruling from the trial court.   Under these circumstances, we cannot conclude appellant has preserved this issue for our review.

Even assuming we address appellant's complaint, we would conclude it lacked merit.   Appellant testified he was honorably discharged and received several medals.   By doing so, he opened the door to questions about his good conduct or character while in the service in Iraq. See Prescott v. State, 744 S.W.2d 128, 130-31 (Tex.Crim.App.1988) (if defendant testifies to good conduct or character and leaves false impression with jury about relevant act or character trait, evidence of extraneous act that tends to rebut such testimony may be admissible to impeach defendant).   The State was entitled to rebut appellant's testimony about his good conduct and service by offering evidence of specific acts of misconduct he committed while in the military.   We overrule appellant's second issue.

We affirm the trial court's judgment.

MOLLY FRANCIS JUSTICE