DOUGLAS FRANKLIN v. THE STATE OF TEXAS--Appeal from 347th District Court of Nueces County

   NUMBER 13-04-225-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

DOUGLAS FRANKLIN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 347th District Court

of Nueces County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

A jury found appellant, Douglas Franklin, guilty on four counts of aggravated sexual assault of a child. Tex. Pen. Code Ann. ' 22.021(a)-(c) (Vernon 2003). After a sentencing hearing, the jury assessed punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000 for each count. The court ordered the sentences to run concurrently. Appellant raises two issues on appeal: (1) the trial court erred in admitting the victim=s videotaped interview into evidence; and (2) the trial court erred in admitting the original offense report of appellant=s prior conviction for possession of a controlled substance into evidence. We affirm.

Procedural Background

Appellant was charged with four counts of aggravated sexual assault of a child, alleged to have occurred on December 1, 2000, January 1, 2001, February 5, 2001, and November 1, 2001, respectively. A jury trial commenced on November 17, 2003, but a mistrial was declared. The case was then tried to a jury in December 2003, but after the jury could not reach a verdict with respect to guilt, another mistrial was declared. The case was finally tried to a jury in April, 2004, and the appellant was found guilty as charged on each of the four counts.

I. Admission of Videotape

a. Facts

The victim in this case, S.F., is appellant=s niece. S.F. was born in September of 1994, which made her six and seven years of age at the time the incidents took place. S.F. testified that while staying at her grandmother Leona=s apartment[1] and at appellant=s apartment,[2] appellant sexually assaulted her. The assaults consisted of appellant pulling down S.F.=s underwear, spraying something on his penis and putting it on or inside her Aprivate,@ causing it to burn. S.F. also testified that appellant put his finger in her Aprivate@ and wiggled it up and down and that this Ahurt really bad.@ According to S.F.=s testimony, appellant also put his Aprivate@ inside her mouth, which she described as slimy, and that he also put his mouth on her Aprivate.@ While appellant was performing these acts on S.F., appellant told her not to tell her mother. S.F. indicated that these incidents happened during the day at Leona=s apartment and during the night at appellant=s apartment. The defense elected not to cross examine S.F.

Eventually, S.F. told her mother what appellant had done to her. Her mother contacted Child Protective Services. On November 20, 2001, Mindy Guajardo, a CPS investigator,[3] interviewed S.F., who gave a very detailed account of what appellant had done to her. This interview was videotaped. The videotaped interview, which comports with the testimony of S.F., was shown to the jury after defense=s objection was overruled. Also on November 20, 2001, S.F. was taken to Driscoll Children=s Hospital in Corpus Christi, where Sonja Eddleman, a sexual assault nurse examiner, interviewed and examined her. According to Eddleman=s testimony, the exam showed no physical signs of assault, but this was not surprising since the assaults had occurred many months prior. The defense offered contradictory evidence. Appellant did not testify but he called his former wife and his grandmother, who testified that appellant rarely saw the children because he worked and was attending school and that he was never alone with S.F. His ex-wife said that S.F. did not act afraid of appellant. She also said that she was aware of instances where S.F. had lied to her, that some of what S.F. said on the CPS videotape was not true, and that S.F.=s mannerisms on the videotape were similar to those S.F. displayed when she was lying. The defense argued that S.F. had a motive to lie and that she was influenced into doing so by her mother.[4]

b. Standard of Review

The standard of review for a trial court's decision to admit or exclude evidence is abuse of discretion. Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). If the ruling was correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling was made, then we must uphold the judgment. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Romero v. State, 800 S.W.2d 539, 543 44 (Tex. Crim. App. 1990).

 c. Prior Consistent Statement

Under Texas Rules of Evidence 801(e)(1)(B), the prior consistent statement of a witness is admissible to rebut an express or implied charge of recent fabrication or improper influence or motive if the statement was made before the motive to fabricate arose. Moody v. State, 827 S.W.2d 875, 894 n.11 (Tex. Crim. App. 1992); Haughton v. State, 805 S.W.2d 405, 408 (Tex. Crim. App. 1990). The State justified the admission of S.F.=s videotaped interview over objection because it was a prior consistent statement and an exception to the hearsay rule under rule 801(e)(1) of the Texas Rules of Evidence.

d. Discussion

Appellant argues that the videotape admission was erroneous because although rule 801(e)(1)(B) allows for the admission of prior consistent statements to rebut the allegations of improper influence or motive, it also requires that a prior consistent statement be made before the alleged improper influence or motive arose. Haughton v. State, 805 S.W.2d 405, 407 (Tex. Crim. App. 1990). It is appellant=s position that the videotaped statement made by the victim was produced after she had been improperly influenced, thereby rendering the video inadmissible hearsay. The State argues that there were other motives and that Ain order to satisfy Rule 801(e)(1)(B) it is not necessary that a prior consistent statement have been made before all motives to fabricate arose.@ Dowthitt v. State, 931 S.W.2d 244, 266 (Tex. Crim. App. 1996).

The trial court heard arguments as to the admissibility of the videotape. Appellant contends that there was testimony that S.F.=s grandmother had filed for grandparental access to her grandchildren before S.F. made her initial outcry, not after, thereby producing a motive to lie.[5] The State, however, argues that if S.F.=s motive was to benefit her mother and to be returned to her mother=s custody, it is doubtful that S.F. would have made such an accusation more than two years before she was removed from her mother=s custody.[6] Taking into consideration all that was presented at trial, we find that the trial court did not act arbitrarily and unreasonably in accepting the State=s argument and therefore did not abuse its discretion in admitting the videotape. Therefore, appellant=s first issue is overruled.

II. Admission of Offense Report

By his second issue, appellant argues that the trial court erred in admitting the offense report from appellant=s prior conviction into evidence. At trial, the State presented documentation of a prior conviction for (1) driving while intoxicated, (2) possession of marihuana, and (3) the felony for which he was on probation, possession of a controlled substance, cocaine. There were no objections to the documentation establishing the first two offenses. With regard to the third offense, appellant=s attorney stated that she had no objection to the admission of the judgment; however, she objected generally to the introduction of the accompanying indictment offense report and motion to revoke probation. After hearing arguments, the trial court overruled the objection and admitted the documents.

In appellant=s brief, appellant cites that police reports are inadmissible hearsay. See State v. Mosquera, 877 S.W.2d 40, 41 (Tex. App.BCorpus Christi 1994, no writ); State v. Bermen, 798 S.W.2d 8, 11 (Tex. App.BHouston [1st Dist.] 1990, writ dism=d). However, in order to preserve error for appellate review, the complaining party must make a specific objection and obtain a ruling on the objection. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). A general objection will preserve error only when the error is obvious from the surrounding context. Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a)(1)(A); Cano v. State, 3 S.W.3d 99, 110 (Tex. App.BCorpus Christi 1999, pet. ref=d). By making a vague general objection, appellant has failed to preserve this issue for our review. Accordingly, it is overruled.

Conclusion

Having overruled appellant=s first and second issues, we affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and filed

this 18th day of August, 2005.

[1]S.F. and her younger brother, J.F., often stayed with her grandmother.

[2]Appellant shared an apartment with his now ex-wife. Appellant also had a son, C.T., from a previous marriage who lived with them as well.

[3]At the time of trial, Mindy Guajardo was the executive director of the Nueces County Children=s Advocacy Center.

[4]S.F.=s grandmother had filed a grandparental access suit against S.F.=s mother. Appellant further argued that S.F.=s mother=s Arocky@ relationship with S.F.=s grandmother Agoes to the entire motive of the fabrication of the story.@

[5]The only evidence that appellant cites to from the record regarding an existing motive comes from appellant=s closing argument: A[S.F.]has been lying to all of us. She loves her mother. She wanted to stay with her mother. When her mother suggested that they do something to get [appellant] in trouble, to get [S.F.=s grandmother] in trouble, so that they would not have any time with [S.F.=s grandmother] . . . @

[6]S.F.=s mother lost her parental rights to S.F and J.F. in 2003.