BRIAN EDWARD POPLIN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed July 24, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01088-CR
............................
BRIAN EDWARD POPLIN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-80668-06
.............................................................
MEMORANDUM OPINION
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice Lang-Miers
        A jury convicted Brian Edward Poplin of aggravated sexual assault of a child, assessed punishment at ten years in prison and a fine of $10,000, and recommended that appellant be placed on community supervision. The trial court assessed appellant's punishment in accordance with the jury's recommendation. On appeal, appellant complains of trial court error in the admission and exclusion of evidence. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm.
 
Standard of Review
 
        We review a trial court's ruling to admit or exclude evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). We will uphold the ruling if it lies within the zone of reasonable disagreement. Id.
 
Testimony that Complainant Recanted
 
        In his first issue, appellant argues that the trial court erred by excluding his father's testimony that the complainant, appellant's stepdaughter, recanted to him. The State objected to the testimony as hearsay, and the trial court sustained the objection. Appellant made an offer of proof while the jury was deliberating punishment, but did not further elaborate on the basis for the proffered evidence.
        The offer of proof shows that appellant's father, Ernest Poplin, would have testified that a few weeks after the complainant's outcry in December 1999, he took the complainant out to his garden and told her that if appellant touched her sexually, “I want to know and I'll put his a- - in jail.” He said the complainant told him, “Paw, it never happened. I was mad at Mom and [appellant] . . ., they didn't let me do what . . . [I] wanted to do . . . .” Appellant offered his father's testimony on the ground that it was “going to be a recantation, and a recantation by the victim in a sexual abuse case is admissible.”
        On appeal, appellant contends that the exclusion of this evidence violated his rights of confrontation and compulsory process as guaranteed by the Sixth Amendment, and due process as guaranteed by the Fourteenth Amendment to the United States Constitution. The State argues that appellant did not object to the exclusion of this evidence on constitutional grounds and cannot raise these issues for the first time on appeal. We agree with the State.
        When the State objected to the father's testimony, appellant did not respond that excluding the evidence violated his rights to confront the witness, to compulsory process, and to due process. And when appellant made an offer of proof of the father's testimony, he did not raise constitutional grounds for the admission of that testimony. Constitutional error is waived by failure to raise it at trial. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005).         Appellant also appears to argue that this excluded testimony was impeachment evidence that directly attacked the complainant's credibility and rebutted the complainant's testimony on cross- examination:
 
Q.
 
Ever accuse anybody of doing anything that didn't happen when you were upset with them?
 
 
 
A.
 
No, sir.
 
        Q.
 
That's never happened?
 
        A.
 
No, sir.
 
        To the extent that appellant's proffer of his father's testimony can be construed as an offer of a prior inconsistent statement by the complainant under evidence rule 613, appellant did not lay a proper predicate to the admission of this testimony. See Tex. R. Evid. 613(a); Huff v. State, 576 S.W.2d 645, 647 (Tex. Crim. App. 1979). Before extrinsic evidence of a prior inconsistent statement may be admitted, a party is required to first ask the witness whether she made the contradictory statement at a certain place and time and to a certain person. Tex. R. Evid. 613(a); see Huff, 576 S.W.2d at 647. If the witness denies making the contradictory statement, then extrinsic evidence of the prior inconsistent statement may be admitted. See Tex. R. Evid. 613(a); Huff, 576 S.W.2d at 647. However, if the witness unequivocally admits making the statement, extrinsic evidence of the prior statement is not admissible. Tex. R. Evid. 613(a); see Huff, 576 S.W.2d at 647.
        Appellant did not ask the complainant if she told Ernest Poplin in his garden a few weeks after her outcry that “it never happened” and that she made up the allegation because she was mad at her mom and appellant. By not confronting the complainant first with her prior inconsistent statement, appellant did not give her an opportunity to explain the prior inconsistency. See McGary v. State, 750 S.W.2d 782, 786-87 (Tex. Crim. App. 1988); Fields v. State, 966 S.W.2d 736, 741 (Tex. App.-San Antonio 1998), rev'd on other grounds, 1 S.W.3d 687 (Tex. Crim. App. 1999). The vague, broad questions that appellant asked the complainant did not give her enough information to explain, deny, or admit her prior statement. See Fields, 966 S.W.2d at 741.
        We conclude that the trial court did not abuse its discretion by excluding Ernest Poplin's testimony. We resolve appellant's first issue against him.
 
Testimony About Grandmother's Statement
 
        In his second issue, appellant argues that the trial court erred by allowing Lt. Tony Bradley of the Collin County Sheriff's Department to testify that the complainant's grandmother's statement was consistent with other evidence of appellant's guilt. Lt. Bradley testified that he interviewed the complainant's grandmother during his investigation of this case but that she died before trial. The State asked Lt. Bradley
 
Q.
 
When you spoke to . . . the grandmother, did you learn of any information that casted [sic] doubt on whether or not you should forward this case for prosecution?
 
Appellant objected that the question called for hearsay, denied his right of confrontation, and was designed to require the witness to testify about whether he believed the grandmother. The trial court overruled the objections, but the witness did not answer that question. Instead, the State asked:
 
Q.
 
Officer, so that we're clear for the record, I'm not asking you to be a human lie detector, okay? I'm asking on your - let me start with this. In your experience have you investigated situations where you received different accounts of the same incident?
 
        A
 
Yes.
 
 
 
Q.
 
When you receive different accounts about what took place, does that cause some concern as to what might be the truth?
 
        A.
 
Not necessarily, no, sir.
 
 
 
Q.
 
Okay. In this case did any of the information either provided to you by this written statement from . . . the grandmother, or during your conversation with her did it cause you concern that the case should not be filed?
 
        A.
 
No.
Q.
 
Okay. Was it inconsistent with other statements or evidence that you'd gathered in your investigation?
 
        A.
 
Not at all.
 
        Q.
 
Okay. Was it consistent with it?
 
        A.
 
Very much.
 
        Appellant contends that the admission of this testimony was error. To preserve error, an objection must be timely, specific, pursued to an adverse ruling, and made each time inadmissible evidence is offered, unless the complaining party obtains a running objection or a ruling on his complaint in a hearing outside the presence of the jury. See Tex. R. App. P. 33.1(a); Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008) (citing Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003)). Although appellant initially objected to Lt. Bradley's testimony about the grandmother's statement, he did not continue to object to that evidence and did not ask for a running objection. See Lopez, 253 S.W.3d at 684.
        Additionally, the State elicited the following testimony from Lt. Bradley without objection:
 
Q.
 
Okay. When you interviewed [the complainant's mother], was any of the information she provided to you, either verbally or in her written statement, inconsistent with your other evidence you had gathered?
 
        A.
 
No.
 
        Q.
 
Was it consistent with it?
 
        A.
 
Yes, sir.
 
        Q.
 
Was it consistent with everything you had gathered to that point?
 
        A.
 
Yes, sir, and it was.
 
And during cross-examination, appellant asked Lt. Bradley whether he believed the complainant:
        Q.
 
You believe [the complainant], right?
 
        A.
 
I do.         Q.
 
You believe her when she says that Brian Poplin inserted his finger into her vagina at their residence located at 3446 CR 655 in Farmersville, Texas?
 
        A.
 
Correct.
 
        Q.
 
That's the truth?
 
        A.
 
Yes, sir.
 
        Any error in the admission of evidence is rendered harmless when other such evidence comes in without objection either before or after the complained-of evidence. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). We resolve appellant's second issue against him.
 
Testimony of Forensic Interviewer
 
        In his third issue, appellant argues that the trial court erred by allowing the child forensic interviewer to testify that she did not believe the complainant was exaggerating, lying, or making a false accusation. The State called Janetta Michaels, a forensic interviewer with the Collin County Children's Advocacy Center, and qualified her to testify as an expert. Appellant objected to Michaels's testimony on hearsay and relevance grounds. The trial court held a hearing outside the presence of the jury, during which it concluded that the State's proffer of Michaels's testimony did not involve hearsay:
 
        Well, we'll just have to see what the questions are. And, you know, it will be kind of a - I won't say a short leash, but I guess it's a - everybody's going to be listening for hearsay.
 
The court impliedly overruled appellant's hearsay objection. See Tex. R. App. P. 33.1(a); Lopez, 253 S.W.3d at 684. The State asked Michaels:
        Q.
 
Do you see anything that would lead you to believe that this child has been coached?
 
        A.
 
No.
 
        Q.
 
Exaggerating?
 
        A.
 
No.         Q.
 
Lying?
 
        A.
 
No, sir.
 
        Q.
 
Making a false allegation?
 
        A.
 
None.
 
        On appeal, appellant contends that this testimony “constituted a direct comment on the truthfulness of [the complainant]'s allegations” and should not have been admitted. But appellant's complaint on appeal does not comport with his trial objection. See Tex. R. App. P. 33.1(a)(1)(A); Reyna, 168 S.W.3d at 179; Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (complaint on appeal must comport with trial objection). Appellant's trial objection was that the testimony was based on hearsay. He did not articulate to the trial court that his objection to Michaels's testimony was that it was a direct comment on the complainant's truthfulness. As a result, the trial court never had an opportunity to rule on appellant's appellate rationale for the exclusion of that testimony. See Reyna, 168 S.W.3d at 179 (purpose of requiring objection is to give trial court or opposing party opportunity to correct error or remove basis for objection). We may not reverse a conviction on a ground that appellant did not present to the trial court. See Reyna, 168 S.W.3d at 179. We resolve appellant's third issue against him.
 
 
Conclusion
 
        We affirm the trial court's judgment.
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
071088F.U05