HAROLD P. COPE v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

NUMBER 13-01-041-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI-EDINBURG

HAROLD P. COPE ,   Appellant,

v.

THE STATE OF TEXAS  , Appellee.

On appeal from the 105th District Court

of Nueces County, Texas.

OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Opinion by Chief Justice Valdez

Appellant, Harold Cope, was convicted by a jury on three counts of sexual assault. He was sentenced by the same jury to five years imprisonment on the first two counts and ten years for the third count. Through four points of error, appellant argues the trial court erred during the punishment phase of the trial when it : (1) admitted evidence of an extraneous offense where the State failed to provide sufficient evidence that the jury could reasonably find beyond a reasonable doubt that the defendant committed said offense; (2) admitted hearsay testimony from several of the State=s witnesses regarding sexual abuse allegations; (3) refused appellant=s limiting instruction to consider outcry testimony only for the narrow purpose that the statement was made and not for the statement=s truth; and (4) permitted the State to use leading questions during the direct examination of the victim. We affirm.

Facts

At trial, evidence was introduced showing that appellant and the victim were alone in his trailer when the appellant began rubbing her legs while they were sitting on the couch. He then took her into his bedroom, undressed her and touched her Abutthole with his hands@ and put his fingers inside her vagina. The victim told her mother about the incident and then gave her sister a detailed account. The victim=s sister took her to the hospital where she was examined. The victim is appellant=s fourt-two year old sister-in-law who suffers from Down=s Syndrome. Mary Lindberg, a psychologist at Nueces County Mental Health and Mental Retardation Center, testified the victim is a person with mental retardation, functioning at the level of a seven or eight year old child.

Extraneous Offenses

In his first point of error, appellant asserts that trial court erroneously admitted evidence of an extraneous offense during the punishment phase of the trial. He contends that the court allowed the State to introduce evidence of an extraneous offense that was not proven beyond a reasonable doubt.

During the punishment phase of the trial, the trial court allowed the State to cross-examine appellant=s wife about appellant=s previous indictment for sexual assault in 1975. Prior to the admission of said testimony, appellant objected on grounds that the charges did not result in a final conviction, that the probative value was outweighed by the prejudicial impact, and the testimony was outside of appropriate limitations. The trial court considered the testimony outside the presence of the jury and appellant then objected that the State=s examination failed to prove the prior bad act beyond a reasonable doubt. The State responded that whether or not it has proven the extraneous offense is an issue for the jury to determine. The court overruled appellant=s objection and allowed the testimony.

For purposes of assessing punishment, the State may offer evidence of any extraneous crime or bad act that is shown, beyond a reasonable doubt, to have been (1) committed by the defendant, or (2) for which the defendant could be held criminally responsible. Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (Vernon Supp. 2002). Prior crimes or bad acts are introduced to provide additional information which the jury may use to determine what sentence the defendant should receive. Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999).

A trial court=s actions as to the admissibility of extraneous offense evidence is reviewed under an abuse of discretion standard. See Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). The trial court must first determine that the evidence is relevant and that the jury could find beyond a reasonable doubt that the defendant committed the extraneous offense. Harrell v. State, 884 S.W.2d 154, 160-61 n.14 (Tex. Crim. App. 1994). Evidence is relevant when it has Aany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.@ Tex. R. Evid. 401. A trial court abuses its discretion if by no reasonable perception of common experience it admits evidence that is not relevant by any reasonable interpretation. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh=g). Therefore, an appellate court should not disturb a trial court=s decision to admit extraneous offense evidence at the punishment stage of the trial as long as the ruling was at least within the zone of reasonable disagreement. Id. In this case, the extraneous evidence consisted of testimony from the appellant=s wife. Her testimony on cross-examination is as follows:

Q Now, Mrs. Cope, back in 199- -- 1975, you were a complaining witness to a sexual assault case being filed against Mr. Harold Cope involving your daughter, isn=t that correct?

A Yes, sir.

Q Okay. And at the time, you requested that the State dismiss this case against Mr. Harold Cope because you wanted to keep the family together; isn=t that correct?

A That=s correct.

Q Okay. And you believe that Mr. Harold Cope committed the offense of sexual assault on your daughter, isn=t that true?

A Yes, sir.

Q Okay. And you told numerous people that Mr. Harold Cope committed the offense of sexual assault on your stepdaughter in 1975; isn=t that correct?

A Yes, sir.

The jury, as the exclusive judge of the facts, is to determine whether the State has proven the extraneous offense beyond a reasonable doubt and should be so instructed by the trial court. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). Once this requirement is met, the fact finder may use the evidence however it chooses in assessing punishment. Mitchell, 931 S.W.2d at 954.

Mrs. Cope testified during cross examination that she believed her husband committed sexual assault against her daughter. She also testified that the only reason she requested the indictment be dismissed was to keep her family together. In determining the admissibility of this evidence, we cannot say that the trial court acted without reference to any guiding principles or acted in a manner that is arbitrary and capricious. See Montgomery, 810 S.W.2d at 392. As such, we hold that the trial court did not abuse its discretion in admitting the evidence.

Appellant=s first point of error is overruled.

Hearsay

In his second point of error, appellant asserts that the trial court erred in admitting hearsay testimony from Linda Michaud and Officer Laura Laster.

At trial, appellant objected to Linda Michaud=s testimony as to what the victim told her concerning the location of the offense. Appellant objected to Officer Laura Laster=s testimony, as to what the victim=s sister told her regarding the location of the offense and the identity of the defendant.

The Texas Court of Criminal Appeals held that a violation of the evidentiary rules resulting in the erroneous admission of evidence is non-constitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)(applying 44.2(b) harm analysis to the erroneous admission of hearsay evidence). Furthermore, it is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. See Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986).

On direct examination, the victim testified as to these topics without objection. Thus, even if the trial court erred in allowing Linda Michaud and Officer Laster to testify about the victim=s out of court statements, we disregard the error because it is merely cumulative of testimony that was admitted from the victim=s unobjected to testimony and therefore, appellant=s substantive rights were not affected. Couchman v. State, 3 S.W.3d 155, 161 (Tex. App.BFort Worth 1999, pet. ref=d); see also Tex. R. App. P. 44.2 (b).[1]

Point of error two is overruled.

In his third point of error, appellant argues that the trial court erred in refusing his request for a limiting instruction to consider the outcry testimony only for the narrow purpose that a statement was made and not for the statement=s truth. He argues that he suffered harm since the jurors were allowed to take hearsay statements for the truth of the matter asserted.

Appellant correctly relies on Heckathorne v. State, 697 S.W.2d 8, 12 (Tex. App.BHouston [14th Dist.] 1985, pet. ref=d), for the proposition that if the defendant requests a limiting instruction requesting that the jury consider outcry testimony only for the purpose that a statement was made, and not for its truth, the trial court is obligated to grant it. He fails, however to continue with that court=s analysis which opined that Aeven if the child=s out-of-court statements could be construed as hearsay, any error in admitting them was rendered harmless when the child testified at trial on both direct and cross-examination.@ Id. at 13; Thompson v. State, 665 S.W.2d 188, 190 (Tex. App.BHouston [1st Dist.] 1984, no pet.). The rationale for the exclusion of hearsay involves the fear of unreliability stemming from the lack of opportunity for opposing counsel to cross-examine the author of the out-of court statements and lack of opportunity for the jury to observe the demeanor of this person during testimony under oath. Heckathorne, 697 S.W.2d at 12; Maryland Cas. Co. v. Davis, 181 S.W.2d 107, 109 (Tex. Civ. App.BGalveston 1944, no writ).

In the present case, the victim was available throughout the trial for further examination before a jury capable of observing her demeanor and assessing her credibility. Heckathorne, 697 S.W.2d at 12. Accordingly, any error in failing to issue this limiting instruction thereby allowing these hearsay statements to be admitted was rendered harmless in the context of this case. Id.

We overrule the third point of error.

Leading Questions

In his fourth point of error, appellant argues that the trial court erred in permitting the State to use leading questions during direct examination of the victim.

Texas Rule of Evidence 611(c) does not forbid the asking of leading questions; it states that leading questions Ashould not be used on the direct examination of a witness except as may be necessary to develop the testimony of the witness.@ Tex. R. Evid. 611(c). Permitting leading questions on direct examination is a matter within the discretion of the trial court. Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000). Abuse of discretion cannot be shown Aunless [appellant] can show that he was unduly prejudiced by virtue of such questions.@ Id.

Appellant does not specifically point out any of the Atoo numerous@ examples. He cites no instance where any particular questions prejudiced him or caused irreparable harm. On appeal, he makes only a general accusation that the trial court=s actions prevented him from receiving a fair trial.

The record reflects that the appellant objected to leading questions only three times. The record also shows that the victim is a person with mental retardation, functioning at the level of a seven or eight year old child. See Clark v. State, 952 S.W.2d 882, 886 (Tex. App.BBeaumont 1997, no pet.)(recognizing relaxed standards concerning leading questions during direct examinations of children). We hold that appellant=s general accusation of harm makes no showing that the trial court abused its discretion or that appellant was prejudiced in any way. See Bryant v. State, 367 S.W.2d 684, 685 (Tex. Crim. App. 1963)(asking leading questions is seldom a ground for reversal). Appellant=s final point of error is overruled.

Conclusion

Having overruled all of appellant=s points of error, the judgment of the trial court is affirmed.

____________________

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.3

Opinion delivered and filed

this 27th day of June, 2002.

[1]In light of the alleged hearsay from the outcry testimony, we further recognize that the erroneous admission of outcry testimony is not constitutional error. See Buckley v. State, 786 S.W.2d 357, 361 (Tex. Crim. App. 1990)(admission of a victim=s outcry statement does not violate federal or state confrontation clause when the declarant testifies at trial and is subject to full and meaningful cross-examination); see also King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)(applying rule 44.2(b) to erroneous admission of pen packets over hearsay objection).