Saronna Michelle Little v. The State of Texas--Appeal from 336th District Court of Fannin County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-06-00161-CR
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SARONNA MICHELLE LITTLE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th Judicial District Court
Fannin County, Texas
Trial Court No. 21381
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Saronna Michelle Little appeals from her conviction by a jury for aggravated sexual assault of a child. The jury assessed her punishment at fifty-five years' imprisonment. Little was tried together with a codefendant, Louie Matthew Hankey, (1) who is also before this Court in cause number 06-06-00172-CR. (2) She argues on appeal that improper evidence was admitted over objection at the punishment phase of trial and that the trial court erred by refusing to allow her to re-invoke her right to remain silent after she had begun to testify during the sentencing hearing.

The sufficiency of the evidence is not at issue in this appeal, but in order to provide a context, we will briefly summarize the testimony. Little and her boyfriend, Hankey, were both charged in connection with Hankey's sexual act with a thirteen-year-old girl, R.A. There was testimony that R.A., who was babysitting Little's four children, was taken into a bedroom, and that Little told Hankey that, if he loved her, he would have sex with R.A.--and that, while Little held R.A. down on the bed, Hankey had sexual intercourse with R.A.

Little first contends the trial court erred in allowing the State to ask questions about an alleged extraneous offense during the punishment phase of the trial because the State had not proved the extraneous offense beyond a reasonable doubt, as required by statute. See Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon 2006).

Extraneous Offense--"Have You Heard" Questions

At the punishment hearing, the codefendant, Hankey, called his aunt Frances Clark as a witness. She testified Hankey was a slow learner, was not a troublemaker, was a very Christian person, and had a "good heart." During cross-examination, the prosecutor asked Clark if she had heard that Hankey and Little had sex with L.M. (a member of Hankey's family) when L.M. was seventeen, with Little holding her down. (3) Counsel for Little objected as going into inadmissible testimony about an extraneous bad act. The court overruled the objection. Clark answered, "I've heard that, yes. But it's just heard."

Hankey also called his father, Louie Hankey, as a witness. Louie testified that Hankey would not be a danger to others when released from confinement and could follow any rules. Louie also said Little would not pose a danger to the community if she were placed on community supervision. The State asked Louie if he had heard that Hankey and Little forced L.M. to have sex back in 2002. Counsel for Hankey objected based on hearsay, and the court overruled the objection. Counsel for Little then expanded the objection--complaining that the testimony was extraneous, had no proper foundation, and needed to be proved beyond a reasonable doubt. A discussion ensued, in which a number of other legal theories were propounded, including speculation, undue prejudice, and a suggestion that the defense had opened the door to the testimony. The court ultimately stated that it would limit the use of the comment to the purpose of impeachment only. However, when the question was finally answered by Louie, his response to the "have you heard" question was: "No, sir, I sure haven't. No."

Clark and Louie had testified extensively as character witnesses on behalf of Little's codefendant, Hankey. Their testimony about Little was minimal.

The question before us is whether questioning these two witnesses whether they had heard about prior bad acts was admissible. Little argues the State did not meet its burden of proving the extraneous offense beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1); Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). However, the State argues that the evidence was not presented to prove that either defendant committed an extraneous offense, but to test the qualifications of those two witnesses to testify as character witnesses for Hankey.

This issue has been directly addressed by the Texas Court of Criminal Appeals in Wilson v. State, 71 S.W.3d 346, 349-50 (Tex. Crim. App. 2002), where the court explicitly held that a witness who testifies about a defendant's good character may then be cross-examined to test the witness' awareness of relevant specific instances of conduct. The court held that because a witness testified about his opinion of the defendant--as in this case--the State was then entitled to ask questions about specific criminal acts. (4)

A witness who testifies to another's good character may be cross-examined to test the witness' awareness of relevant specific instances of conduct. Tex. R. Evid. 405(a); Wilson, 71 S.W.3d at 350. When a witness presents a picture that the defendant is not the type of person to commit the charged offense, the prosecution may impeach that witness' testimony by cross-examining the witness concerning similar extraneous offenses. Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002); Whitehead v. State, No. 11-05-00240-CR, 2007 WL 765426, at *3 (Tex. App.--Eastland Mar. 15, 2007, no pet.).

The questions could properly be asked of either witness in connection with Little's codefendant, about whose character each witness had given a positive opinion--and who was also involved in the "bad act." However, Clark provided no evidence of Little's character, and Louie's testimony was very minimal on that subject.

Thus, the evidence was admissible--but on request, the court would have been required to limit the jury's consideration of the evidence to that purpose. See Tex. R. Evid. 105(a). When evidence is admissible for one purpose only, but not for another purpose, "the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." Id. A party opposing the introduction of evidence that is admissible only for one purpose has the burden of objecting and requesting a limiting instruction when the evidence is proffered. Evans v. State, 500 S.W.2d 846, 850 (Tex. Crim. App. 1973); Arana v. State, 1 S.W.3d 824 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd). Because the evidence was properly admissible as to one defendant, we cannot conclude that the court erred by admitting it. Where the evidence is admissible for a limited purpose only and the trial court admits the evidence without limitation, the party opposing the offer has the burden of requesting the correct limiting instruction. Plante v. State, 692 S.W.2d 487, 493 (Tex. Crim. App. 1985). In the absence of a request for a limiting instruction, the court's action in admitting evidence without such an instruction cannot be raised on appeal. See Tex. R. Evid. 105(a). Here, no such limiting instruction was requested and the admission of the evidence cannot be raised on appeal.

Fifth Amendment Claim

Little next contends that the court erred at punishment by refusing to allow her to invoke her Fifth Amendment privilege against self-incrimination (as to the extraneous offense described above)--while she was in the midst of testifying on her own behalf. Counsel correctly points out that a convicted person nonetheless has the right not to testify at the punishment phase of trial. See Mitchell v. United States, 526 U.S. 314, 326-27 (1999). However, the caselaw also recognizes that, once a defendant decides to waive that right, he or she becomes a witness for all purposes--and can be cross-examined or questioned as such by the State. See Felder v. State, 848 S.W.2d 85, 99 (Tex. Crim. App. 1992); Cantu v. State, 738 S.W.2d 249, 255 (Tex. Crim. App. 1987); Cuba v. State, 905 S.W.2d 729, 733 (Tex. App.--Texarkana 1995, no pet.).

To hold otherwise would permit a defendant to pick and choose the scope of his or her testimony and allow the defendant to testify about his or her version of events without fear of being confronted by the State. (5)

Felder, 848 S.W.2d at 99. A defendant "has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts." Williams v. State, 116 S.W.3d 788, 791 (Tex. Crim. App. 2003).

In this case, Little had already testified at some length about her own character and had provided substantial information about her own behavior, as well as that of Hankey and the various other family members. The State asked Little (over the Fifth Amendment objection) if Hankey sexually assaulted L.M. while she (Little) was present. Little answered "yes," but denied that she was holding L.M. down and said that she (Little) was crying and asking Hankey not to have sex with L.M. Little's testimony was that Hankey and L.M. were "doing drugs real bad" and admitted that she had also used drugs.

Counsel's argument is a blanket claim that the trial court erred by not allowing her to exercise her Fifth Amendment right to remain silent to questions about this unadjudicated offense. At the punishment hearing, the State is entitled to present evidence as to any matter the court deems relevant to sentencing, including evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant. Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1). If the defendant voluntarily testifies, the defendant becomes subject to questioning by the State on any subject matter which is relevant and such questioning does not violate the defendant's right against self-incrimination. Felder, 848 S.W.2d at 99. The evidence of the prior extraneous offense was relevant to the issue of punishment, and the trial court did not err by overruling the objection.

We affirm the judgment.

 

Jack Carter

Justice

 

Date Submitted: April 16, 2007

Date Decided: May 30, 2007

 

Do Not Publish

1. We will refer to the codefendant, Louie Matthew Hankey, as Hankey. His father is also named Louie Hankey, and we will refer to him as Louie.

2. Our opinion was issued in Hankey's case on May 24, 2007.

3. Little later testified that Hankey and L.M. had sex while she watched, that it was consensual, and that she (Little) was crying uncontrollably at the time. She denied that she ever held L.M. down.

4. Wilson also noted that a punishment-phase character witness' awareness of specific instances of conduct may be tested on cross-examination and "not only was the State not required to prove to the jury that the acts actually occurred, but it would have been improper for the State to attempt to do so. Counsel does not argue that the State lacked the required good-faith basis for these questions or that the questions were not relevant to the character traits at issue in the case. 71 S.W.3d at 350-51; see Rayme v. State, 178 S.W.3d 21, 27 (Tex. App.--Houston [1st Dist.] 2005, no pet.); In re G.M.P., 909 S.W.2d 198, 210 (Tex. App.--Houston [14th Dist.] 1995, no pet.).

5. Miranda teaches that, even though an accused has been warned and has waived his or her rights, the accused may terminate the custodial interrogation at any point and reassert his privilege against self-incrimination and his right to counsel. Hill v. State, 429 S.W.2d 481, 486 (Tex. Crim. App. 1968); see Miranda v. Arizona, 384 U.S. 436 (1966). That stricture has not been expanded to this type of situation.