Steven Howard v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-91-208-CR

STEVEN HOWARD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 91-271-C

O P I N I O N

Steven Howard appeals his conviction for indecency with a child. // Howard was found guilty by a jury, and the jury assessed punishment at twenty years in prison and a $10,000 fine. We affirm.

In point one, Howard contends that the court erred in restricting his impeachment of the victim regarding threats she made to have Howard put in jail. The victim testified on cross-examination as follows:

QDo you remember a little while later, did you talk to a boy on the phone?

ANo, I didn't.

. . .

QSo it's not true that you two got in a real fight, and you told your boyfriend you were going to have him put in jail?

ANo, that isn't true at all.

QThat's not true at all?

ANo.

Howard later attempted to impeach the victim's testimony through the testimony of A. C., who testified as follows:

QOkay. Do you remember a time when did [the victim] call a someone on the telephone?

AYes.

. . .

QOkay, [A. C.], we can't get into hearsay. Okay? Did did your uncle [Howard] pick up the phone and listen in?

AYes.

QDid he get mad at [the victim] for talking to the boy?

AYes.

. . .

QNow, to was your uncle threatened to be put in jail?

[Prosecutor]: Your Honor, again, that calls for hearsay.

THE COURT: Sustained.

Howard, however, failed to preserve his complaint by making an offer of proof as required by Rule 52(b) of the Texas Rules of Appellate Procedure. // Because nothing is presented for review, we overrule point of error one.

In point two, Howard contends that the court erred in restricting his impeachment of the victim concerning statements she made that she wanted to spend the day at his house following the incident. On direct examination, the victim testified that on the day after the incident she told Howard that she did not feel good and wanted to go home. Howard's attorney elicited the following testimony from the victim on cross-examination:

QNow, you claim that you told Steven that you wanted to go home the next morning. Is that correct?

AYes, it is.

. . .

QIsn't it true that [your mother] came over to Steven's approximately between eight-thirty and nine?

ANo.

QThat's not true?

ANo, it isn't.

. . .

QAnd isn't it true that about nine-fifteen . . . your mother, left? That's not true, either.

ANo.

QAnd, in fact, isn't it true that you told your mother that you wanted to spend the rest of the day there?

ANo, because I don't remember my mother coming.

On cross-examination, Howard's counsel again attempted to impeach the victim's testimony through the testimony of A. C., who testified as follows:

QDid [the victim] go home with her?

ANo. She said she wanted to stay

[Prosecutor]: Your honor, this also is

A a little longer.

THE COURT: I sustain the objection and instruct the jury to disregard the last statement of the witness whereby she said made a statement about what was said to her by [the victim].

Howard argues that, because he was attempting to impeach the victim's testimony that she did not ask to stay with him on the day following the incident, the court erred in striking A. C.'s testimony. The State argues that the court properly sustained the objection and instructed the jury to disregard the answer because A. C.'s answer was nonresponsive. Although the State did not have an opportunity to give the specific grounds for its objection, if the court's decision is correct on any theory of law applicable to the case it will not be disturbed. // Because the court properly instructed the jury to disregard Curry's nonresponsive answer, we overrule point of error two.

In point three, Howard contends that the court erred in prohibiting him from offering evidence concerning the opinion of a witness about the truthfulness of the victim. Howard attempted to attack the victim's character for truthfulness through the testimony of Patricia Howard. On direct examination, Patricia Howard testified as follows:

QNow, based on you living in her home, do you have an opinion as to the whether [the victim] is a truthful person?

[Prosecutor]: Your Honor, I'm going to object to this question. This witness is not qualified. She just said she hasn't been around the victim in the past two years.

THE COURT: Sustained.

Again, Howard failed to preserve his complaint by making an offer of proof as required by Rule 52(b) of the Texas Rules of Appellate Procedure. // Because nothing is presented for review, we overrule point of error three.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed September 9, 1992

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