MARCEL v. STATE

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Court of Appeals of Texas,Houston (1st Dist.).

Michael MARCEL, Appellant, v. The STATE of Texas, Appellee.

Nos. 01-00-00885-CR, 01-00-01140-CR.

Decided: December 27, 2001

Panel consists of Justices COHEN, HEDGES, and TAFT. James M. Leitner, Houston, for Appellant. John B. Holmes, District Attorney, Donald W. Rogers, Jr., Assistant District Attorney, Houston, for the State.

OPINION

I.

Appellate Court Cause No. 01-00-01140-CRTrial Court Cause No. 825982

A jury convicted appellant of aggravated sexual assault, and the judge assessed punishment at thirty years in prison.   We affirm.

FACTS

On July 18, 1999, appellant was babysitting T.G., the complainant, because her mother, Latonya W., was working the night shift.   Latonya W. arrived home around 11:30 p.m. and put the children to bed at midnight.   Latonya W. went to bed thirty minutes later.   Appellant remained in the living room watching television after Latonya W. and the children went to bed.

Latonya W. was awakened by noise coming from her daughters' room.   When Latonya W. turned on the light, appellant jumped out of the girls' bed.   Latonya W. pulled back the covers on the girls' bed and saw that T.G. was wearing a shirt, but she was not wearing any underwear.   Latonya W. saw appellant in the living room with his pants undone.   Appellant then called T.G.'s father, Tarus.   Appellant told Tarus that he had just finished “f---ing” Tarus's daughter.

The paramedics arrived at T.G.'s residence.   Tracy Bierig, an E.M.T. (emergency medical technician), was the first adult to speak with T.G. T.G. told Bierig that appellant had molested her with his finger.

IMPEACHMENT OF DECLARANT

 Appellant's first point of error alleges that the trial judge erred by not allowing him the opportunity to attack T.G.'s credibility through prior inconsistent statements.

 We review the admission or exclusion of evidence for abuse of discretion.  Goff v. State, 931 S.W.2d 537, 553 (Tex.Crim.App.1996).   Bierig testified to what T.G. had told her about the incident that evening.   Later, appellant called Latonya W. to testify.   Appellant sought to question Latonya W. about T.G.'s having recanted her accusations against appellant.   The State objected to the testimony as hearsay.   The trial judge sustained the objection.   Appellant then made an offer of proof.1  Tex.R. Evid. 103(a)(2).

The victim, T.G., never testified in this case.   Instead, important parts of the State's case consisted of admissible hearsay, including T.G.'s outcry statements to Bierig at the scene, to Dr. Zwerneman at the hospital, and to Detective Dennis.

The State cannot try a case based largely on T.G.'s hearsay statements, without calling her as a witness, and then legitimately object when appellant seeks to admit T.G.'s other inconsistent hearsay statements to impeach her.   See Tex.R. Evid. 806 (“When a hearsay statement ․ has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness ․”);  see Harrison v. State, 686 S.W.2d 220, 226 (Tex.App.-Houston [1st Dist.] 1984, pet. ref'd).   Thus, the judge erred by refusing to admit evidence of T.G.'s prior inconsistent statement and recantation.

 The error was harmless, however.   See Tex.R.App. P. 44.2(b).  Appellant was caught in the act by Latonya W. and never denied his guilt to her.   Far from it, appellant promptly, proudly, and repeatedly proclaimed his guilt, calling Tarus to brag that he had just finished molesting T.G. Given these facts, we conclude the erroneous exclusion of the evidence did not substantially injure the appellant.   See Johnson v. State, 43 S.W.3d 1, 5 (Tex.Crim.App.2001).

Consequently, we overrule appellant's first point of error.

The rest of the opinion does not meet the standards for publication and is ordered not to be published.   See Tex.R.App. P. 47.4.   The judgments are affirmed.

MEDICAL RECORD

Appellant's second point of error contends that the trial judge erred in allowing T.G.'s medical records into evidence because they contained a statement that appellant had confessed to the crime.

We again review for abuse of discretion.  Goff, 931 S.W.2d at 553.   Statements made for the purpose of medical diagnosis or treatment are admissible hearsay.   Tex.R. Evid. 803(4);  see also Molina v. State, 971 S.W.2d 676, 683-84 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd).

Appellant was not harmed by any possible error because the same evidence was admitted elsewhere during trial without objection.  “It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged.”   See Leday v. State, 983 S.W.2d 713, 717-18 (Tex.Crim.App.1998) (quoting Crocker v. State, 573 S.W.2d 190, 201 (Tex.Crim.App.1978)).   Appellant did not object when Latonya W. testified that she heard appellant tell Tarus that appellant had just molested Tarus's daughter.   Additionally, Tarus testified without objection that appellant called him the morning of the incident and told Tarus, “I just got through f---ing your daughter.”

Consequently, we overrule appellant's second point of error.

T.G.'S TRUTHFULNESS

Appellant's third point of error alleges that the trial judge erred in allowing an expert witness to testify to T.G.'s truthfulness.   Appellant complains of the following testimony given by Detective W.D. Dennis:

State:  Did you watch an interview of the complainant?

Dennis:  Yes.

State:  And throughout this investigation and watching that interview did you ever notice any signs that [T.G.] was not telling the truth?

Appellant:  Object to relevance.

Court:  Overruled.

State:  Did you ever notice any signs that she wasn't telling the truth?

Dennis:  No, I did not.

A general objection like the one above does not preserve error for review.   Barnard v. State, 730 S.W.2d 703, 716 (Tex.Crim.App.1987) (holding that a relevance objection does not present error for review);  McWherter v. State, 607 S.W.2d 531, 535 (Tex.Crim.App.1980) (holding that objections stating “immaterial and irrelevant” are not sufficient to preserve error).   In addition, appellant's objection to relevance was correctly overruled because complainant's truthfulness was very relevant.   Moreover, appellant's relevance objection did not call the trial court's attention to the type of error now alleged on appeal.  Coffey v. State, 796 S.W.2d 175, 179 (Tex.Crim.App.1990) (trial court objection must comport with point of error raised on appeal).

Consequently, we overrule appellant's third point of error.

We affirm the judgment in appellate cause no.   01-00-01140-CR.

II.

Appellate Cause No. 01-00-00885-CRTrial Court Cause No. 729789

Appellant pleaded guilty to possession of cocaine.   The trial judge assessed punishment at ten years in prison, probated for ten years.   Appellant was later indicted on two counts of aggravated sexual assault.   On the State's motion, the trial judge revoked probation and assessed punishment at ten years in prison.   We affirm.

PROCEDURAL BACKGROUND

The State's revocation motion was based on appellant's causing his sexual organ to contact the sexual organ of someone under the age of fourteen, T.G., and appellant's failing to report.   The revocation motion was heard jointly with appellant's trial on two indictments of aggravated sexual assault.   Although appellant was acquitted at trial on an indictment similar to the aggravated sexual assault allegation in the State's revocation motion, the judge found both allegations in the revocation motion to be true;  however, the judge made no finding in his written judgment that appellant failed to report.   In stating the condition of probation appellant violated, the order provides:

Committed an offense against the state of Texas, did then and there unlawfully, intentionally, and knowingly cause the sexual organ, of the deft.   A person younger than 14 yrs. of age.

SUFFICIENCY OF THE EVIDENCE

Appellant's first point of error challenges the sufficiency of the judge's “findings.”

The judge's oral pronouncement controls over any written memorialization.   Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App.1998).   The trial judge stated in open court, “Mr. Marcel, based upon your plea of not true and the evidence introduced, the Court will find the allegations in the motion to revoke to be true.”   When the written order was signed, only one of the allegations was memorialized.   It is clear that the finding stated in the order is an incomplete version of the State's first allegation in its revocation motion, which read as follows:

The State would show that said defendant did then and there violate terms and conditions of Community Supervision by:  Committing an offense against the state of Texas, to-wit;  on or about July 18, 1999, in Harris County, Texas, the Defendant did then and there unlawfully, intentionally, and knowingly cause the sexual organ of T.G., a person younger than fourteen years of age and not the spouse of the Defendant, to CONTACT the SEXUAL ORGAN of the DEFENDANT.

The judgment contains enough of the second allegation to give appellant notice of the basis for probation revocation.

Appellant's point of error reads, “The specific factual findings of the Court are insufficient to prove by a preponderance of the evidence, that appellant violated the specific term of probation that he was called upon to defend in the motion to revoke.”   We construe this as a challenge to legal sufficiency.   Cf. Lopez v. State, 46 S.W.3d 476, 481 (Tex.App.-Fort Worth 2001, pet. ref'd) (interpreting a “no violation of probation” contention as a challenge to the legal sufficiency of the evidence).

We review an order revoking probation for abuse of discretion.   Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984).   Regardless of the reasons given by the trial judge for revoking probation, if evidence supports the judge's decision, that decision will not be disturbed on appeal.   Jackson v. State, 508 S.W.2d 89, 90 (Tex.Crim.App.1974).

The State offered the following proof in support of the revocation motion:  (1) the testimony of Dr. Zwerneman, stating that the complainant, T.G., related to him that, on this specific occasion, there had been penile-vaginal penetration;  (2) the testimony of Latonya W., who stated she saw appellant on top of her daughter and who later found T.G. undressed from the waist down and appellant with the front of his pants undone;  and (3) testimony by Tarus, the complainant's biological father, who stated appellant called him and said, “I just got finished f---ing your daughter.”   We hold that this is some evidence that supports the trial judge's decision.   Appellant's acquittal on the indictment that contained the same allegation as the motion to revoke does not bar revocation of appellant's community supervision based on that allegation.   Moreno v. State, 22 S.W.3d 482, 488 (Tex.Crim.App.1999) (judge may take judicial notice of the evidence at a criminal trial and revoke probation, even if the defendant was acquitted, assuming the State proved the allegation by a preponderance to the evidence).   We overrule appellant's first point of error.

The State asserts that the proper remedy is modification of the order to reflect the correct finding.  “An appellate court has the power to correct and reform a trial court judgment ‘to make the record speak the truth when it has the necessary data and information to do so․’ ” Nolan v. State, 39 S.W.3d 697, 698 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (citing Asberry v. State, 813 S.W.2d 526, 529-31 (Tex.App.-Dallas 1991, writ ref'd) (reforming clerical error in judgment));  see also French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App.1992) (adopting Asberry's reasoning);  Tex.R.App. P. 43.2(b), 43.6.   Accordingly, we modify the judgment to read the appellant:

Committed an offense against the state of Texas, did then and there unlawfully, intentionally, and knowingly cause the sexual organ of T.G., a person younger than fourteen years of age and not the spouse of the Defendant, to contact the sexual organ of the Defendant.

Appellant's second, third, and fourth points of error are identical to his first, second, and third points of error in part I of this opinion.   Accordingly, we overrule them for the same reasons we stated in part I.

As so modified, the judgment is affirmed in appellate cause no.   01-00-00885-CR.

FOOTNOTES

1.   The State contends that appellant did not make an adequate offer of proof, but he did:Appellant:  After this happened last July you spoke with T.G. about this on several occasions?Latonya W.:  Yes.Appellant:  She told you that-State:  Objection.   This calls for hearsay.Court:  Sustained.Appellant:  May I approach, judge?Appellant:  May I respond to that [objection]?Court:  Yes, sir.Appellant:  The prosecutor has put on evidence that T.G. has made certain allegations against my client, and I would like to be given the opportunity to put on evidence that she has, in fact, recanted or changed that testimony or changed her story since the night of July 18, 1999, and that [is] the object of putting this witness on.Court:  I've sustained the objection.(Emphasis added.)

MURRY COHEN, Justice.

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