Ernest James Nelson, Sr. v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-91-096-CR

ERNEST JAMES NELSON, SR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 18,191

O P I N I O N

Ernest James Nelson, Sr. was convicted of aggravated sexual assault and assessed a punishment of 99 years in prison. He complains that the evidence was insufficient to support his conviction. He also argues that the court erred when it admitted evidence of extraneous unadjudicated acts of misconduct at the punishment phase. We affirm the conviction but reverse the portion of the judgment sentencing Nelson and remand the cause for a new punishment hearing.

Nelson was charged with aggravated sexual assault i.e., intentionally or knowingly causing the sexual organ of a child under age 14 to contact his mouth. See Tex. Penal Code Ann. 22.021(a)(1)(B)(iii), (a)(2)(B) (Vernon 1989). His third point is that the evidence was insufficient to support his conviction. Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 156-57 (Tex. Crim. App. 1991).

The 13-year-old complainant testified that he went to Nelson's house to get a cigarette. The first time, Nelson gave him a cigarette, and he went home. About a week later, the complainant went back for another cigarette. This time Nelson asked him inside, pulled down his pants, fondled him for approximately five minutes, and then gave him a cigarette. One month later, the victim, apparently believing Nelson was not home, returned to his house. This time Nelson removed the complainant's pants and sucked his penis. Based on this testimony, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. We overrule point three.

Nelson complains in points one and two that the court erred when it allowed testimony concerning unadjudicated acts of misconduct at the punishment phase of his trial.

Beverly Teague, Nelson's daughter, testified during the punishment phase. She related, without objection, numerous instances during her childhood when Nelson put his penis in her mouth, fondled her, took her to nudist colonies, and masturbated in front of her. Because Nelson failed to object to the admission of Teague's testimony at trial, he cannot complain about it on appeal. See Tex. R. Crim. Evid 103(a)(1); Tex. R. App. P. 52(a).

The State's first witness at the punishment phase was Peggy Graham, Nelson's step-daughter. Before she testified, Nelson objected, "Your Honor, for the record, I'd like to object to this witness's testimony. I've been informed generally of what she'll testify to, and I object on the grounds that it constitutes extraneous offense and its probative value, if any, is outweighed by the prejudice." The court overruled the objection. Then, when Graham was asked whether Nelson ever had any sexual contact with her, Nelson "renew[ed his] objection." The court again overruled the objection and allowed Graham to testify that throughout her childhood Nelson repeatedly fondled her vagina and masturbated in front of her.

Initially, we find that this objection, especially when considered in light of the State's question, was sufficient to apprise the court of the specific complaint. See Lankston v. State, No. 1094-90, slip op. at 2 (Tex. Crim. App. Mar. 4, 1992) (holding that to avoid forfeiture of a complaint on appeal a party must let the judge know at a time when the judge is in the proper position to do something about it what he wants and why he is entitled to it). We have, furthermore, already determined that unadjudicated acts of misconduct are inadmissible at the punishment phase of a non-capital trial. See Blackwell v. State, 818 S.W.2d 134, 140-41 (Tex. App. Waco 1991, no pet.). Accordingly, the court erred when it overruled Nelson's objection and allowed Graham to testify about her sexual encounters with him.

Having determined that the court erred, we must now decide whether the error was harmful. See Tex. R. App. P. 81(b)(2). Aggravated sexual assault, a first-degree felony, is punishable by "life or for any term not more than 99 years or less than 5 years." Tex. Penal Code Ann. 12.32(a) (Vernon Supp. 1992). The jury assessed Nelson's punishment at 99 years in prison.

The complainant's testimony about the sexual assault was virtually unchallenged. Teague's testimony at the punishment phase, which was not objected to, that Nelson, her father, sexually assaulted her throughout her childhood certainly had a severe impact upon the jury. Graham's testimony, which was improperly admitted, did two things. First, it substantiated Teague's characterization of Nelson as a habitual offender. And second, it placed evidence from another victim before the jury.

We cannot determine beyond a reasonable doubt that only the testimony by the complainant and Teague caused the jury to assess Nelson, who was tried as a first-time offender, 99 years in prison. See Tex. R. App. P. 80(b)(2); Harris v. State, 790 S.W.2d 568, 585-88 (Tex. Crim. App. 1989). We sustain Nelson's first and second points.

Having found no error affecting guilt-innocence but concluding that the court erred during the punishment phase by admitting evidence of unadjudicated acts of misconduct, we affirm Nelson's conviction but reverse the portion of the judgment sentencing him and remand that cause for a new punishment hearing under article 44.29(b). See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 1991).

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed in part and reversed

and remanded in part

Opinion delivered and filed March 18, 1992

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