Raymond Francis Pollone, Jr. v. The State of Texas--Appeal from 29th District Court of Palo Pinto County

Opinion filed January 11, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-05-00103-CR

__________

RAYMOND FRANCIS POLLONE, JR., Appellant

V.

STATE OF TEXAS, Appellee

   On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. 12,544

O P I N I O N

Raymond Francis Pollone, Jr. pleaded guilty to aggravated sexual assault of a child. See Tex. Pen. Code Ann. ' 22.021(a)(1)(B) (Vernon Supp. 2006). Appellant, thirty years old, confessed to penetrating the vagina of the twelve-year-old child with his sexual organ on three occasions and stated that he slept with her in a motel room on a fourth occasion. The jury assessed his punishment at fifty years confinement.

In appellant=s first point of error, he argues that only evidence of the act charged in the indictment should have been admitted because the other acts referred to in his confession were not proved beyond a reasonable doubt. In his second point of error, he argues that the district attorney failed to respond to his request for notice of intent to offer evidence of extraneous conduct; thus, evidence of the other acts referred to in his statement should not have been admitted. And in his last point of error, appellant contends that the evidence was legally insufficient to show that the aggravated sexual assault occurred in Palo Pinto County. We affirm.

Background Facts

Appellant, a married man, became involved with N.W., a friend of his daughter. After his arrest, appellant signed a written confession that graphically described his actions with N.W. For example, he described the first incident as follows:

I don=t remember the exact date but I believe the first incident was in February. I don=t remember what time it was but I remember that it was dark. [N.W.] and I were riding around town in my chevy blazor [sic]. We ended up out on Fort Walter [sic] Base by the old swimming pool. We parked and talked for a while. We both together started kissing and touching each other. I touched her breast and vagina while [N.W.] touched my penis. We both took pulled [sic] our pants down. I put on a condom while [N.W.] watched. I was sitting in the driver=s seat. [N.W.] sat on my lap. I placed my penis inside her vagina and we engaged in sex. The sexual encounter lasted until we both had an orgasm. When we finished I took the condom off and threw it in a trash can.

In his written statement, appellant described the next two sexual encounters in similar terms: they engaged in sex by the old swimming pool again in February and they engaged in sex in March at his workplace located at 822 Division Loop on Fort Wolters Base. Appellant stated that the last incident occurred on April 23, 2004, after he had picked up N.W. and two other children who had attended a birthday party for appellant=s daughter. When they stopped at Wal-Mart, N.W. asked him to buy some condoms. Appellant stated that he rented Room 110 at the Executive Inn and that the four of them stayed overnight there. N.W. was in bed with appellant. Appellant stated that he and N.W. kissed and that he then went to sleep. As appellant drove the children to their respective homes the next day, they encountered N.W.=s grandmother who got into appellant=s car with them. When they arrived at appellant=s house, the grandmother accused appellant of Adoing something with [N.W.]@ and hit appellant with a closed fist.

In his guilty plea memorandum, appellant waived Aany and all rights secured the Defendant by law, whether of substance or of procedure, and state[d] that any error which may have been committed is harmless at the guilt/innocence stage of the trial.@

Points of Error Nos. 1 and 2

Appellant was indicted in Cause No. 12,544 for the alleged offense of aggravated sexual assault of a child in Palo Pinto County on or about March 23, 2004. The other three instances referred to in his confession were the subjects of three other indictments: Cause Nos. 12,542, 12,543, and 12,545. The same trial lawyer represented appellant in all four cases. The trial court held a hearing before the trial to determine the voluntariness and admissibility of appellant=s confession. See Jackson v. Denno, 378 U.S. 368, 376-77, 392-93 (1964). The trial court found that appellant had freely and voluntarily made his statement and that the statement would be admissible in all four cases against appellant.

Appellant claims in his second point of error that the district attorney did not respond to his request for notice of intent to offer extraneous conduct, crimes, or bad acts. Because the district attorney did not respond, appellant argues that the other acts referred to in his written statement should not have been allowed into evidence. However, appellant did not make this objection at trial. In order for us to consider his complaint on appeal, the record must show that appellant preserved his complaint by a timely request, objection, or motion and that he obtained a ruling from the trial court. See Tex. R. App. P. 33.1(a); Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002).

A court may admit evidence at punishment of extraneous offenses or bad acts. Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (Vernon 2006). Under Tex. Code Crim. Proc. Ann. art. 37.03, ' 3(g) (Vernon 2006), a defendant can discover if the State intends to offer this type of evidence. Here the State failed to respond to appellant=s request. But appellant knew of the offenses since he described them in his statement, his attorney for all four indictments against him had received a copy of the statement a month before trial, the State referred to all four incidents in its opening statement without objection, and appellant did not object to the evidence of the extraneous offenses. Appellant=s second point of error is overruled.

In appellant=s first point of error, he argues that the other three acts referred to in his confession were not proved beyond a reasonable doubt. We disagree. In addition to his confession, appellant=s own witnesses confirmed that he had acknowledged his guilt of the acts referred to in his confession.

Appellant=s trial strategy was to show that he had taken responsibility for his acts and then to demonstrate to the jury that he was capable of being rehabilitated. Appellant did not have a record of other crimes. In his opening statement, appellant=s attorney laid the groundwork for appellant=s strategy:

You won=t hear from [N.W.] on the stand today and the reason you won=t hear from her is because my client pled guilty. He did that of his own free will, of his own choice. He did that in an effort to spare the young girl, in an effort to speed up this process, in an effort to admit to what he had done. He confessed to what he had done in his statements that you=ll hear about in this case. He admitted it, he owned up to what he had done. He owned up to making a mistake.

Appellant called Ted Oliver, pastor of Faith Fellowship Chapel, who had been counseling appellant. Oliver had known appellant since he was a teenager. Oliver testified that appellant had Anever denied his guilt or made excuses for it,@ that appellant regretted the pain that he had caused everybody involved, that appellant was repentant, and that appellant had no intent of repeating those acts. Appellant=s attorney asked Oliver, ASo he has told you in the past that he was, in fact guilty?@ Oliver answered, AYes, Sir.@ During cross-examination by the State, Oliver stated that he understood that appellant was having sexual relationships on a regular basis with the young girl.

Appellant also called Dr. Richard Clark Schmitz, a clinical psychologist in Arlington. Based on his testing of appellant, Dr. Schmitz gave his opinion that appellant was a person who could be successfully treated with a combination of psychotherapy, sex offender counseling, and medication. Dr. Schmitz testified that appellant was embittered that he allowed himself to be tempted and to have succumbed to the temptation, that appellant was depressed and guilt ridden, and that appellant realized the hurt he inflicted on the child.

Earlier in the trial, during the State=s case, Detective Brian Lee Boetz with the Mineral Wells Police Department testified that N.W. told him about staying with appellant at the Executive Inn and that she and appellant had had intercourse at his place of employment. Even inadmissible hearsay testimony admitted without objection is entitled to probative value. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). Detective Boetz had investigated the crime and had taken appellant=s statement. Detective Boetz read appellant=s written confession to the jury.

In his closing argument, appellant=s attorney again emphasized that his client had confessed, pleaded guilty, and taken responsibility for his acts. Stating that the real question was what should the jury do in punishing appellant, his attorney pointed out that appellant=s family members, friends, and other witnesses had testified as to his good qualities. Appellant=s counsel then made an eloquent argument on behalf of appellant for probation or at least a shorter jail sentence.

We find that the evidence was legally and factually sufficient to prove the extraneous offenses beyond a reasonable doubt. Appellant=s first point of error is overruled.

Point of Error No. 3

In appellant=s third point of error, he contends that there was legally insufficient evidence to prove that the offense occurred in Palo Pinto County. We disagree. Detective Boetz testified that all four offenses B the two by the swimming pool, the one at appellant=s place of work, and the one at the Executive Inn B were all in Palo Pinto County. Appellant did not contest Detective Boetz=s testimony.[1] In addition, a guilty plea before a jury constitutes an admission of all elements of the offense charged. Brinson v. State, 570 S.W.2d 937, 938-39 (Tex. Crim. App. 1978).

Appellant=s attorney on appeal, who was not his trial attorney, has attached to his brief items that purport to be a copy of a deed and copies of maps. Appellant asks this court to take judicial notice that the offenses occurred in Parker County, not Palo Pinto County. We decline to do so. The copy of the deed is not in a form that would be admissible at trial. The maps have handwritten labels (Aswimming pool@) on them and are not in a form that would be admissible evidence. Moreover, a judicially noticed fact must be one that is not subject to reasonable dispute. Tex. R. Evid. 201.

The testimony was legally and factually sufficient to support a finding that the offense in this case occurred in Palo Pinto County. Appellant=s third point of error is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

January 11, 2007 JUSTICE

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Jerry Cagle, appellant=s employer, only testified that he owned Aa manufacturing facility out on the old Fort Wolters Base called American Manufacturing.@