Leonard Reed, Jr. v. The State of Texas--Appeal from 179th District Court of Harris County

Opinion issued November 22, 2006

In The

Court of Appeals

For The

First District of Texas

NOS. 01 06 00153 CR

01 06 00154 CR

01 06 00155 CR

LEONARD REED, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause Nos. 1056023, 1056024, 1056025

MEMORANDUM OPINION

Following a joint jury trial on three separate indictments, appellant, Leonard Reed, Jr., was convicted of aggravated assault // and of two separate offenses of aggravated sexual assault. // See Tex. Pen. Code Ann. 22.02 (Vernon Supp. 2005) (aggravated assault); Tex. Pen. Code Ann. 22.021 (Vernon Supp. 2005) (aggravated sexual assault). The jury assessed punishment at 20 years for the aggravated-assault offense and at 30 years for each of the aggravated-sexual assault offenses. In three points of error, appellant complains that the trial court erred (1) by admitting hearsay testimony, (2) by admitting testimony that was not relevant, and (3) by overruling appellant s speculation objection and allowing the prosecutor to continually side bar and badger appellant on cross-examination.

We affirm.

Background

The complainant, B.P., and appellant were both school bus drivers for the Houston Independent School District. Some months after the two began a romantic relationship, appellant moved into B.P. s home. B.P. eventually asked appellant to move from her home because she felt that he was becoming too controlling. The couple agreed that appellant would move out.

On April 24, 2005, B.P. was at home watching television in an upstairs room. Appellant was also there. Appellant told B.P. that he was concerned that he would not be able to pay his bills after he moved out. B.P. told appellant that he could possibly pick up a summer school bus route to make some money.

Without any warning, appellant began hitting B.P. on her arms and lower body. B.P. attempted to get away by going down the stairs, but appellant grabbed her by the hair and pulled her to the floor. Appellant continued to hit B.P. as she crawled down the stairs. Once downstairs, B.P. fell on the floor against a couch with appellant standing over her. B.P. was trying to get up from the floor when appellant pulled a knife from his pocket. Appellant told B.P. that, if she got up, he would cut her with the knife. As she lay on the floor, appellant kicked B.P. and stomped on her stomach. Appellant then forced B.P. to crawl to her bedroom. As she crawled, appellant continued to kick B.P.

When they arrived in the bedroom, appellant forced B.P., at knife point, to remove all of her clothes and lie on the bed. Appellant pulled his pants down and penetrated B.P. s vagina with his penis. Appellant then directed B.P. to turn over. While B.P. was on her knees, appellant attempted to penetrate B.P. s anus with his penis. This caused B.P. pain and she fell down from her knees. Appellant next placed his penis in B.P. s mouth.

B.P. then told appellant that she needed to use the restroom. Appellant took B.P. into the bathroom and placed her on the toilet. B.P. told appellant that she wanted a drink of water, and appellant left to get it. Appellant returned to the bathroom carrying the water and a roll of duct tape. Afer B.P. drank the water, appellant used the tape to bind B.P. s hands, ankles, and knees. Appellant took B.P. back to her bedroom and laid her on the rug next to the bed.

Appellant left the bedroom and returned with a wire coat hanger in his hand. B.P. saw appellant doing something with the wire hanger but could not tell exactly what. After B.P. tried to talk to him, appellant placed a piece of tape over B.P. s mouth. Appellant left the room for awhile. When he returned, appellant was holding the coat hanger with a pot holder. Appellant then used the coat hanger to burn his initials into B.P. s buttocks. After he had branded his initials into her skin, appellant poured water over B.P. Appellant then sat B.P. up next to the bed and urinated on her.

Appellant then used the knife to cut the tape from B.P. and placed her in the bathtub. Appellant told B.P. that he was sorry, bathed her, and dressed her. Appellant made B.P. something to eat and then the two spent the night together in B.P. s bed. B.P. stayed awake all night because she was afraid that, if she fell asleep, appellant might kill her.

In the morning, both appellant and B.P. went to work. While at work, B.P. told her co-worker and close friend, Cathy Freeman, what appellant had done to her. B.P. also showed Freeman the marks that appellant had made on her body. Freeman convinced B.P. to contact the authorities about the incident. That same day, Freeman took B.P. to the office of the Harris County Sheriff s Department to report the attack, where she was interviewed by Harris County sheriff s deputy Glen Anderson.

Appellant was ultimately arrested. As a result of his attack on B.P., appellant was charged with three offenses: aggravated assault and two instances of aggravated sexual assault. The jury found appellant guilty and this appeal followed. Appellant raises three points of error on appeal.

Hearsay Testimony

In his first point of error, appellant contends that the trial court erred by overruling his hearsay objection to Freeman s trial testimony regarding what B.P. had told her about the attack. Appellant contends that he was harmed by Freeman s testimony because it bolster[ed] and corroborate[d] B.P. s trial testimony.

Assuming that the trial court abused its discretion when it overruled appellant s hearsay objection to Freeman s testimony, such error was harmless. The admission of inadmissible hearsay constitutes nonconstitutional error, and it will be considered harmless if, after examining the record as a whole, we are fairly assured that the error did not have a substantial and injurious effect or influence on the jury s verdict. See Tex. R. App. P. 44.2(b); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). An improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see Duncan v. State, 95 S.W.3d 669, 672 (Tex. App. Houston [1st Dist.] 2002, pet. ref d) (holding improper admission of outcry testimony was harmless error because similar testimony was admitted through complainant, pediatrician, and medical records).

In this case, Freeman s testimony did not provide information to the jury that was not supplied by other testimony. B.P. testified without objection regarding the attack. B.P. s testimony was much more detailed than Freeman s testimony. B.P. told the jury step by step what appellant had done to her during the attack. In contrast, Freeman s testimony regarding what B.P. had told her was generalized, omitting many of the details that B.P. related during her testimony. Moreover, Deputy Anderson testified, without objection, regarding what B.P. had reported to him regarding the attack. Deputy Anderson s testimony was also much more detailed than Freeman s testimony regarding the specifics of both the aggravated assault and the aggravated sexual assaults.

After examining the record as a whole, we are fairly assured that admitting Freeman s testimony did not have a substantial and injurious effect or influence on the jury s verdict; thus, we hold that the error was harmless.

We overrule appellant s first point of error.

Relevancy

In his second point of error, appellant contends that the trial court erred by overruling his relevancy objection to the testimony of Virgil Johnson, who had a sexual relationship with B.P. over a five-year period both before and after she was assaulted by appellant. At trial, appellant objected on the ground of relevancy when the State asked Johnson to [d]escribe for us what the sexual relationship with [B.P.] was like? After the trial court overruled the objection, Johnson testified that [t]he sexual relationship was just basic sex. Upon questioning by the State, Johnson testified that he had never known B.P. to associate pain or violence with sex or sexual pleasure and had never known B.P. to watch movies in which pain and sex were related . . . .

Though on appeal he complains essentially of this whole line of questioning, appellant objected at trial only to the State s question that elicited the response that Johnson and B.P. engaged in basic sex. Appellant did not renew his relevancy objection or request a running objection on the State s further questioning of Johnson about the particulars of B.P. s sexual preferences, practices, and proclivities. Thus, appellant preserved his relevancy objection only to Johnson s testimony that he and B.P. had engaged in only basic sex. See Tex. R. App. P. 33.1(a); see also Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (applying principle that party must object each time evidence is offered or obtain running objection).

Relevant evidence is evidence that has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Generally, all relevant evidence is admissible, and evidence that is not relevant is inadmissible. Tex. R. Evid. 402. Questions concerning the relevance of evidence should be left largely to the trial court relying on its own observations and experience, and the relevancy ruling will not be reversed absent an abuse of discretion. Goff v. State, 931 S.W.2d 537, 553 (Tex. Crim. App. 1996); Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993).

In his brief, appellant contends that [t]he complainant s sex life with a completely different person does not make any fact that was of consequence to the determination of the action more probable or less probable. But said testimony bolstered complainant s testimony and made no substantive contribution in the case and should not have been allowed. We disagree.

At trial, B.P. s testimony indicated that she neither consented to sexual intercourse with appellant on the day in question nor to appellant s branding his initials on her buttocks. In contrast, appellant testified that B.P. consented to the sexual intercourse and had previously entered into an agreement with appellant that each would brand the other with that person s respective initials. At trial, appellant testified that B.P. had branded him with her initials, a claim that B.P. denied.

In sum, the primary contested issue at trial was consent. Johnson s testimony tended to make it more probable that B.P. had not consented to a sexual encounter with appellant involving sadomasochistic activities because she had not engaged in such activities with Johnson prior to or after the assault. // Johnson s testimony was not conclusive proof that B.P. had not consented; however, that is not determinative of its relevancy. See Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004). As explained by the Court of Criminal Appeals, Evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence. Id.

We hold that the trial court did not abuse its discretion by admitting Johnson s testimony.

We overrule appellant s second point of error.

Prosecutor s Conduct During Cross-Examination

In his third point of error, appellant contends that [t]he trial court committed reversible error by overruling appellant s speculation objection and allowing the prosecutor to continually side bar and badger appellant on cross-examination[,] which denied appellant a fair trial and due process.

To support his claim of prosecutorial misconduct, appellant cites two instances during the State s cross-examination of appellant in which the defense objected to the prosecutor s questioning. // Appellant first cites an instance in which the defense objected that the prosecutor s question called for speculation. The following is the line of questioning in which the objection occurred:

[Prosecutor]: So you decided to use duct tape?

[Appellant]: We decided.

[Prosecutor]: We decided. Because nothing says consent like a big roll of duct tape around the head, does it?

[Appellant]: We both decided.

[Defense counsel]: Objection, Your Honor, speculation.

THE COURT: It s overruled.

The second instance of alleged improper conduct cited by appellant occurred during the following line of questioning:

[Prosecutor]: Maybe [B.P.] didn t know, and maybe she didn t know because you had a knife with you whenever you did it.

[Defense counsel]: Your Honor

THE COURT: There was no question. Sustained.

[The defense]: I would ask

THE COURT: Disregard the last comment by the prosecutor, ladies and gentleman.

On appeal, appellant argues, The Trial Court s failure to act on a proper objection to a flagrant example of prosecutorial misconduct denied Appellant a fair trial and therefore his right to due process. To the extent that this argument is directed at the first line of questioning in which appellant made a speculation objection, appellant has not preserved his appellate complaint. The issue on appeal must comport with the objection made at trial. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). If the complaint on appeal asserts a different legal theory or basis for objection than that raised at trial, the appellant fails to preserve any issue for our review. Dixon v. State, 2 S .W.3d 263, 265 (Tex. Crim. App. 1998). At trial, appellant objected to the prosecutor s question about the duct tape on the ground of speculation. On appeal, appellant equates it with prosecutorial misconduct, an objection not made in the trial court. Thus, appellant has not preserved his appellate complaint with regard to the first line of questioning he cites in his brief. See id.

To the extent that appellant directs his appellate argument at the second line of questioning cited above, appellant waived any error by failing to pursue his objection to an adverse ruling when he did not request a mistrial after the trial court sustained his objection and then instructed the jury to disregard the prosecutor s comments. A party must pursue its objection to an adverse ruling in the trial court to preserve error on appeal. See Tex. R. App. P. 33.1; Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). To obtain an adverse ruling, if the objection is sustained, a party must then ask for an instruction to disregard. If the instruction is given, the party must then move for a mistrial. Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984); see Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985). Here, appellant did not move for a mistrial. In any event, an instruction to disregard side-bar remarks will generally cure the error. See Todd v. State, 598 S.W.2d 286, 293 94 (Tex. Crim. App. 1980); Felder v. State, 564 S.W.2d 776, 779 (Tex. Crim. App. 1978).

Lastly, to the extent that appellant is contending that the cumulative effect of the prosecutor s conduct during cross-examination denied him a fair trial and denied him due process, such argument was not presented to the trial court. Thus, it is waived. See Tex. R. App. P. 33.1.

We overrule appellant s third point of error.Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Nuchia, Jennings, and Higley.

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