Billy Dale Bond v. The State of Texas--Appeal from 198th Judicial District Court of Kerr County

MEMORANDUM OPINION
No. 04-03-00218-CR
Billy Dale BOND,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B96-229
Honorable Emil Karl Prohl, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: October 8, 2003

AFFIRMED

Billy Dale Bond ("Bond") was convicted of aggravated sexual assault. On appeal Bond argues that the trial court erroneously admitted evidence of an "Abel Screen" test. An "Abel Screen" test measures threat levels of sexual offenders. Bond claims the test results were not properly authenticated under Texas Rule of Evidence 901, and thus were erroneously admitted into evidence. We disagree and affirm the trial court's judgment.

Factual and Procedural Background

Bond plead guilty to the offense of aggravated sexual assault of a child and was placed on deferred adjudication probation. The State later filed motions alleging Bond violated the terms of his probation and seeking to adjudicate Bond guilty and revoke his deferred adjudication probation. At a hearing on the motions, the trial court adjudicated Bond guilty and sentenced him to thirty-five years confinement in the Texas Department of Criminal Justice Institutional Division. During the hearing, Bond's trial counsel objected to the admission of State's Exhibit 1, a bar graph showing the results of an Abel Screen test purportedly administered to Bond. He argued that the testifying witness did not have personal knowledge to match the serial number on the test with Bond. The trial court overruled the objection and admitted the Abel Screen test results into evidence. It is from this ruling that Bond now appeals.

Standard of Review

Appellate courts review the trial courts' evidentiary rulings under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); see State v. Mata, 30 S.W.3d 486, 488 (Tex. App.--San Antonio 2000, no pet.). Because the trial court is in the best position to determine whether evidence should be admitted or excluded, it has broad discretion in making evidentiary rulings. Guzman, 955 S.W.2d at 89. In applying this standard, the appellate court "must view the evidence presented at the hearing in the light most favorable to the trial court's finding." Duke v. State, 2 S.W.3d 512, 515 (Tex. App.--San Antonio 1999, no pet.). Therefore, the appellate court will not disturb a trial court's ruling "unless it lies outside that zone within which reasonable persons might disagree." Oliver v. State, 32 S.W.3d 300, 304 (Tex. App.--San Antonio 2000, pet. ref'd).

Authentication Under Rule 901

Bond contends that a graph reflecting Abel Screen test results was improperly admitted into evidence, claiming the graph was not properly authenticated under Texas Rule of Evidence 901. Rule 901(a) provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex. R. Evid. 901. This authenticating evidence can be from an expert or a witness who has knowledge that the evidence is what it claims to be. Jordan-Maier v. State, 792 S.W.2d 188, 192 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd).

Bond claims the bar graph admitted into evidence as State's Exhibit 1 was not properly identified as reflecting the results of his Abel Screen test as opposed to some other individual's test results. He further contends the erroneous admission of the bar graph reflecting these test results caused the trial court to assess an extremely long prison term. We acknowledge that there was scant authentication evidence directly linking the identification number on the test with Bond, and that Bond's objection to the lack of authentication evidence was overruled. Nonetheless, we need not address Bond's specific complaint because ample testimony regarding his test results was presented without objection from Bond.

Dr. Houshman Tirandaz, a psychiatrist and certified sex offender therapist, testified extensively concerning the Abel Screen test. He explained that the test measures an individual's sexual interest in various groups of people classified by age and other factors. Dr. Tirandaz further testified that Bond suffers from impulse control problems, as evidenced by his history of alcoholism and uncontrolled sexual impulses, and that Bond is diagnosed with a chronic addictive disorder and with an antisocial personality disorder. In specific regard to the Abel Screen test assessment for Bond, Dr. Tirandaz stated that the test results showed that Bond's highest arousal group is twelve-year old to fifteen-year old females. He further testified that Bond revealed "very high sadistic sexual behavior." Finally, Dr. Tirandaz testified that out-patient treatment had not been successful, but that without continued treatment, Bond would continue to be a threat in the future. Bond's trial counsel never objected to Dr. Tirandaz's testimony regarding the test results and "it is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection." Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). Therefore, this testimony, admitted without objection, fully supports the trial court's decision to proceed to adjudication and to assess the punishment it did. See id.

Conclusion

Overruling Bond's point of error, we affirm the judgment of the trial court.

Catherine M. Stone, Justice

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