Gallier, Ronnie Gene v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Opinion filed _____________, 2002

Affirmed and Memorandum Opinion filed July 17, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00718-CR

NO. 14-02-00722-CR

NO. 14-02-00724-CR

____________

RONNIE GENE GALLIER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

   Harris County, Texas

Trial Court Cause Nos. 874,842; 895,768; 895,769

 

M E M O R A N D U M O P I N I O N

A jury found appellant guilty of three felony counts of aggravated sexual assault of a child and assessed punishment at 30 years confinement. The facts of this appeal are known to the parties, so we do not recite them here. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.1. We affirm.

1. Hearsay

First, appellant contends the trial court erred in admitting hearsay testimony. Although his brief is not entirely clear, this appears to refer to the testimony of two witnesses over objection regarding statements made by the complainant immediately after the assault. The State argues the statements were admissible as excited utterances. We review the trial court s decision for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

Technically, neither statement was hearsay. A statement is not hearsay if 1) the declarant testified and was subject to cross-examination concerning the statement, 2) the statement is consistent with the declarant s testimony, and 3) the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. Tex. R. Evid. 801(e)(1)(B). Here, the complainant testified to the statements and was cross-examined by defense counsel. Throughout the trial, appellant argued he was the victim of a false accusation motivated by marital conflict, greed, and revenge.[1] Therefore, the trial court properly admitted the statements to show the complainant made them before she could have been improperly influenced, and were not a recent fabrication.

Furthermore, as the complainant had previously testified without objection to the same facts, appellant waived any error. See Reyes v. State, 84 S.W.3d 633, 638 (Tex. Crim. App. 2002) (finding a party waives error regarding improperly admitted evidence if that same evidence is admitted elsewhere without objection). Thus, the issue is overruled.

2. Extraneous Offense

Second, appellant argues the trial court erred in admitting evidence of an extraneous offense because the State failed to provide adequate and reasonable notice. Appellant complains testimony by the complainant s therapist involving an alleged extraneous offense did not properly provide him with notice, contending the State failed to discuss each alleged aggravated sexual assault with specificity. Assuming without deciding whether the State failed to provide proper notice, appellant waived any error by failing to object when the complainant first brought out the same evidence. See Reyes, 84 S.W.3d at 638. Consequently, we overrule this issue.

3. Request for a Mistrial

In his final issue, appellant argues the trial court erred in denying his request for a mistrial after sustaining his objection to testimony by the complainant s therapist.[2] A mistrial should be granted only when an objectionable event is so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant. See Geuder v. State, 76 S.W.3d 133, 138 (Tex. App Houston [14th Dist.] 2002, no pet.). Because curative instructions are presumed efficacious to withdraw from jury consideration almost any argument that is objectionable, trial conditions must be extreme before a mistrial is warranted. See id.

Here, the excluded testimony concerned allegations that were no more serious than those admitted, but simply took place in another room. Because the trial court properly instructed the jury to disregard, and that instruction is presumed effective, a mistrial was not appropriate. The trial court did not err, and thus we overrule appellant's final issue.

The judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Memorandum Opinion filed July 17, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Frost.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] [DEFENSE COUNSEL] (opening statement): I do want to remind you of what I had initially asked you as to what might be possible factors for a false accusation in terms of marital conflict and greed and revenge against somebody that she obviously was in a hurry to get out of her life, what better way to rid yourself of a spouse and have him out of the way to start dating or living with a new person and to accuse him with such a crime as my client is being accused of.

[2] [DEFENSE COUNSEL]: Your Honor I m going to object at this point. May I approach?

[THE COURT]: Yes.

. . . .

[THE COURT]: I have other reasons and I have to agree. I m going to sustain his objections.

[DEFENSE COUNSEL]: Your Honor I would ask that an instruction be given to the jury to disregard that last statement.

[THE COURT]: All right. Disregard the witness last comment.

[DEFENSE COUNSEL]: Also ask for a mistrial at this point Your Honor.

[THE COURT]: Denied.