Richard Lee Lankston v. The State of Texas--Appeal from 249th District Court of Johnson County

AFFIRMED

SEPTEMBER 20, 1990

NO. 10-90-016-CR

Trial Court

# 27054

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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RICHARD LEE LANKSTON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 249th Judicial District Court

Johnson County, Texas

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Pleading not guilty, appellant Richard Lee Lankston was found guilty by a jury of the offenses of aggravated sexual assault and indecency with a child, separately charged in a single indictment. Punishments were assessed by the jury at confinement in the penitentiary for a term of ninety-nine years for the aggravated sexual assault and for a term of twenty years for indecency with a child.

Appellant seeks reversal of his convictions on four points of error. Two points assert that the trial court erred (1) by admitting testimony by an outcry witness of extraneous offenses allegedly committed by the appellant and (2) by admitting hearsay statements of the "child victim" not in compliance with the requirements of the Texas Code of Criminal Procedure article 38.072. See Vernon's Ann.C.C.P. art. 38.072. The third and fourth points of error assert that appellant was denied a fair trial (3) when the State's first witness informed the jury that appellant had been charged with the extraneous offense of driving while intoxicated, and (4) when the State interjected the extraneous offense of unlawfully carrying a weapon during the cross-examination of appellant. We overrule these contentions.

The child victim in this case was born on September 3, 1977. On January 2, 1989, the victim informed her mother of events that had occurred between the victim and appellant, the victim's stepfather. The incidents the victim disclosed to her mother had occurred earlier that day and related primarily to the criminal offense of indecency with a child. This was the first time the victim had informed anyone of the problem she was having with appellant. The next day on January 3, 1989, the victim's mother took the victim to the Child Protective Services' Office for Johnson County. While at the office the victim spoke with Carol Black, a child welfare worker. The victim related occurrences between herself and appellant to Ms. Black. During the counseling session with Ms. Black the victim for the first time related an encounter which occurred in June of 1987 which was the basis of the aggravated sexual assault.

Appellant's first point of error is based upon two arguments. He first argues that because the court did not hold a hearing on the reliability of the hearsay statements in accord with the Texas Code of Criminal Procedure article 38.072, all statements made by the outcry witnesses under the statute were inadmissible hearsay. The trial transcript and statement of facts indicate that a specific objection was never made in the trial court regarding the omission of the reliability hearing. Appellant did make a general hearsay objection at trial. However, the objection at trial must be specific because a general hearsay objection against outcry testimony under the statute preserves no error for review. Rodriguez v. State, 762 S.W. 2d. 727, 731 (Tex.App.-- San Antonio 1988, no pet.). If no specific objection is made the "failure to object to the absence of a hearing provided for under article 38.072, 2(b)(2) waives error, if any, in failing to hold a hearing." Rodriguez v. State, supra. See also Rule 52(a), Tex.Rules App.Proc., requiring specific objection for preservation of error for appellate review.

The second argument under the first point of error deals with the testimony of Carol Black, an outcry witness designated by the State. Ms. Black's testimony concerned the crime of aggravated sexual assault, and the appellant was given proper notice of such testimony as required by article 38.072. Ms. Black testified that the victim told her that appellant started "fondling her breasts inside her clothing and outside her clothing, and also her vagina inside and outside her clothing. She said also he started kissing her and fondling her and would kiss her on her lips, her breasts and her vagina." Appellant argues that admission of the above portion of Ms Black's testimony contained unalleged extraneous offenses which were extremely prejudicial and therefore should have been excluded.

The testimony that appellant complains about was not specifically enumerated in the indictment and therefore is extraneous. However, in cases involving similar extraneous sex offenses which occur between the child victim and the accused there is an exception to the general rule barring testimony of the extraneous offenses. Boutwell v. State, 719 S.W.2d. 164, 178 (Tex.Cr.App. 1985). Moreover, "[i]t is well settled that where . . . another offense or transaction is a part of the case on trial or blended or closely interwoven therewith, proof of all the facts is proper." Mitchell v. State 650 S.W.2d. 801, 811 (Tex.Cr.App.1983). Evidence of an extraneous offense "may be admissible to show the context in which the criminal act occurred." Wilkerson v. State, 736 S.W.2d. 656, 659-60 (Tex.Cr.App.1987). Additionally, "evidence of the context of the offense is almost always admissible under the reasoning that events do not occur in a vacuum and the jury has a right to have the offense placed in its proper setting so that all evidence may be realistically evaluated." Mann v. State, 718 S.W. 2d. 741, 744 (Tex.Cr.App.1986). Only on rare occasions will evidence of the context of the crime be inadmissible because prejudicial. Mann v. State, supra.

Based upon the foregoing we find that the trial court did not err in admitting the testimony given by outcry witnesses under article 38.072. The first point of error is overruled.

In appellant's second point of error he complains that the trial court erred by admitting hearsay statements of the child victim not in compliance with the requirements of article 38.072. Appellant did not preserve the right to appeal such an error because he did not make a specific objection. The pertinent part of the record during Ms. Black's testimony reads as follows:

AShe [the child victim] told me that --

[APPELLANT'S ATTORNEY]: Your Honor, may I make an objection? There are parameters that are exceptions to the hearsay rule that I believe this person can testify to under the rules, and [the Prosecutor] has so filed his letter stating what those parameters are. I would just request that instead of me jumping up and down every time with regard to hearsay, that the questions be posed in a manner so that the nonobjectionable material she testifies to could be separate from that which would be hearsay under the rules.

THE COURT: I just want all the attorneys to stay within the parameters of 38.07[2]. I believe that's what you're referring to. I'll just say all attorneys will be expected to stay within those parameters and couch their questions in that state.

Q[By the prosecutor]: Specifically, did she tell you about something that happened in June of 1987?

AAbout a specific incident that she felt happened in June of 1987?

QYes, ma'am. Let me go back just a second. As far as when you're talking to a child as far as trying to get specific dates, is that sometimes difficult to do?

AYes, it is sometimes difficult. She described activity that happened spanned over a period of about three years.

QAll right. And when you're trying to pinpoint a date, you may not have an exact date but you're trying to get it as close as possible. Would that be a fair statement?

AYes.

QAll right. Around June of 1987, what did she tell you happened to her?

AShe told me that around June of 1987, they were living in Keene at the same home on Santa Fe Street with her mother, stepfather and younger sister. She said her mother was working and would go to work about 7:00 o'clock in the morning, and that her stepfather went to work later on in the afternoon -- in the morning around 9:00 o'clock. She said usually she would go into his room and bring him a cup of coffee.

[APPELLANT'S ATTORNEY]: Your Honor, once again I'm going to have to object that this is hearsay.

[PROSECUTOR]: Judge, I can show you what we filed as our intent to use 38.07[2].

THE COURT: It's on file here. Let me read it here. All right, I'll overrule the objection. Go ahead.

Q[Prosecutor] Just go ahead, Carol. You said she had gone in to give him some coffee?

ARight. She started -- you know, after her mother had gone to work at 7:00, she would go in and give her stepfather a cup of coffee when he was still in bed in the bedroom. She said he would -- he started, at that point, fondling her breast inside her clothing and outside her clothing, and also her vagina inside and outside her clothing. She said also he started kissing her and fondling her and would kiss her on her lips, her breasts and her vagina. She said sometimes he also would masturbate against her vagina to the point of ejaculation. She said -- and when I talked to her more specifically about if her put his penis inside her vagina, she said, no; he had tried to, but he did not put his penis inside her vagina, he would rub it on the outside of her vagina until he ejaculated on her vagina. But there was never any penetration inside of her vagina.

Appellant's "hearsay" objection was not specific and therefore no complaint was preserved for appellate review. Rodriguez v. State, supra. The objection was to the testimony of an "outcry witness" whose testimony is primarily hearsay and is only admissible over proper objections if all requisites of article 38.072 are met. Thus, a hearsay objection without specific grounds is without merit. Moreover, Rule 52(a) of the Texas Rules of Appellate Procedure provides that "[i]n order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context." Since the outcry witness's testimony is primarily composed of hearsay the general objection to hearsay is not specific and clearly is not apparent from the context. Additionally, when appellant received notice of the State's intention to use the hearsay testimony "it became appellant's burden to show any underlying reason why the testimony was inadmissible." Martinez v. State, 732 S.W.2d 401, 403 (Tex.App.--Houston [14th Dist.] 1987, no pet.). The general hearsay objection to the outcry witness's testimony preserved nothing for review. The trial court properly overruled appellant's hearsay objection.

Appellant also argues that the testimony of Ms. Black was hearsay because she was not the first person 18 years of age or older to whom the child spoke about the offense. The child originally spoke to her mother. However, the statements made to the child's mother related to the charge of indecency with a child. Section 2(a)2 of article 38.072 requires more than a general allusion to sexual abuse and requires more than the first statements made by an outcry victim that arguably relate to what later develops into an allegation of child abuse. Garcia v. State, 792 S.W.2d 88, 91 (Tex.Cr.App.1990). The mother of the victim in our case did receive more than a general allusion to the crime of indecency with a child. Therefore, she was designated the outcry witness on that offense. However, the victim's mother received no specific statements from the child relating to the aggravated sexual assault offense. Ms. Black first heard of the acts that gave rise to the aggravated sexual assault offense. Thus, appellant's hearsay objection was properly overruled. Furthermore, the objection was not timely. The second point of error is overruled.

Appellant asserts in his third point of error that he was denied a fair trial when the State's first witness violated the trial court's order in limine by informing the jury that appellant had been charged with the extraneous criminal offense of driving while intoxicated. The record on this issue reads as follows:

QMrs. Moore, I'm . . . one of the attorneys for [appellant]. You and I have never talked, have we?

AWe might have.

QWhen was that?

AYou represented [appellant] on a DWI one time. I don't remember whether we spoke during that period of time or not.

QWhere do you work now, where is your part-time --

AI have a temporary position, I don't have a fulltime position.

QWhere is it that you work?

Appellant did not object to the testimony now complained about. Thus the complaint was waived. Rule 52(a), Tex.Rules App.Proc. Moreover, appellant testified on direct examination that he had two DWI convictions on his record. Point three is overruled.

On direct examination, appellant testified as follows:

QHave you ever been in trouble before other than your DWI?

ANo, sir.

QYou've had two DWI's.

AYes, sir.

Then, during cross-examination, appellant gave this testimony:

QNow, your attorney, Mr. Thomas, asked you if you'd ever had any other trouble, and I believe you mentioned something about the DWIs. Anything else?

ANo, sir.

QAny other arrests?

[APPELLANT'S ATTORNEY]: Your honor, I object to that.

THE COURT: Sustained.

[APPELLANT'S ATTORNEY]: I think there's certain areas he can certainly inquire of in that regard, but not generally.

[PROSECUTOR]: My understanding was he asked the question, was he ever in any other trouble other than those DWI's, and he denied that. I believe, you know, that matter has been opened up, Judge.

THE COURT: Proceed, Counsel.

Q[Prosecutor:] You were charged with DWI. Is there anything else you were charged with on that last DWI?

AOn the last DWI?

QYes, sir.

AThey didn't charge me with nothing, no, sir.

QWere you carrying a pistol with you?

AThey didn't charge me with it, no, sir.

Appellant failed to object to the prosecutor's question inquiring about the pistol. Rule 52(a) of the Texas Rules of Appellate Procedure requires an objection in order to preserve a complaint for appeal. Moreover, "the failure to object waives any error in the admission of evidence tending to show an extraneous offense." Smith v. State, 595 S.W.2d 120, 123 (Tex.Cr.App. 1980).

Appellant also left a misleading impression on direct examination regarding his prior "trouble" with police. This false impression "opened the door" to an inquiry by the State as to the truth of his testimony, allowing the State to "dispel the false impression left by the accused as to his past, a subject that is usually an irrelevant issue, collateral to the case, and thus inadmissible." Prescott v. State, 744 S.W.2d 128, 131 (Tex.Cr.App.1988).

Finally, assuming the above was error it was harmless error under rule 81(b)(2) of the Texas Rules of Criminal Procedure. Because of the direct testimony of the victim at trial which clearly and explicitly detailed all acts committed against her by appellant, we find beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment. The fourth point of error is overruled.

The judgments of conviction are affirmed.

VIC HALL

DO NOT PUBLISHJustice