JAMES OTIS HOFF, JR., Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 7, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01110-CR
No. 05-88-01111-CR
............................
JAMES OTIS HOFF, JR., Appellant
v.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 199th District Court
Collin County, Texas
Trial Court Cause Nos. F86-368-HR, F86-369-HR
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O P I N I O N
Before Justices McClung, Thomas and Whittington
Opinion By Justice Whittington
        This is an appeal from a conviction for aggravated sexual abuse of a child. Appellant was found guilty and the jury assessed punishment of five years' confinement in each cause. In nine points of error, appellant contends that the trial court erred 1) in admitting into evidence appellant's confession, 2) in overruling appellant's objection to testimony of a child welfare officer; 3) in overruling appellant's motion to consolidate cases and in not requiring the State to elect; 4) in overruling appellant's motions for mistrial; 5) in admitting into evidence letters from appellant to his wife; 6) in admitting prejudicial opinion evidence; and 7) in admitting evidence of an extraneous offense. We affirm.
        In his first point of error, appellant contends that the trial court erred in admitting into evidence a confession made by him to Donna Jones, a caseworker for the Texas Department of Human Services (DHS). On or about May 23, 1986, the complainant, M. H., met with Jones and discussed sexual abuse by appellant, M. H.'s father. M. H.'s mother then came to talk to Jones. The mother left and returned with appellant, who also talked with Jones. Jones informed appellant of the allegations against him. She told him that he would be required to move out of his home and that he could not be around the complainant. Jones testified that appellant told her that he had been "wanting help" for a long time. She then asked him to write down the things he was discussing with her. She testified that he was free to leave the office at all times, she did not make any promises to him, and that she did not persuade him to make the statement, other than telling him it would be good for the family to have the "secret out." She explained her role as a DHS social worker and told appellant "that the majority of offenders who came into [her] office and explained to their family and to [her] exactly what their role was in the offense, that they had sexually abused their child, in other words, that [her] experience [had] been that those gentlemen got probation versus going to the penitentiary. . . ."
        Under this point of error, appellant contends that his confession was involuntary FN:1 because it was induced by the promise of a benefit. He contends that Jones promised him probation if he would write out a confession.
        In order for a confession to be inadmissible as involuntarily given in response to a promise of benefit, four factors must be shown: 1) the promise must be of some benefit to the appellant; 2) the promise must be positive; 3) the must be made by a person in authority; and 4) the promise must be of a character that would be likely to cause a defendant to speak untruthfully. Washington v. State, 582 S.W.2d 122, 124 (Tex. Crim. App. 1979); Sossamon v. State, 740 S.W.2d 543, 545 (Tex. App.--Beaumont 1987, no pet.).
        Although appellant testified that Jones promised him probation in exchange for a confession, Jones testified that no promises were made and no coercion was used. Jones testified that she told appellant that it would be best to get the secret "out on the table" and that most who confess receive probation, but that she did not make any promises to appellant.
        The trial court found that the statement was made voluntarily, without any promises, coercion, threats or force. The trial court was the judge of the credibility of the witnesses, and these findings may not be disturbed on appeal. See Harville v. State, 591 S.W.2d 864, 867 (Tex. Crim. App. 1979). Further, we find that the statements made by Jones to appellant were not clear, positive and unequivocal promises that appellant would receive probation since Jones merely told him what had happened to the majority of offenders she had dealt with rather than actually promising him unequivocally that he would receive probation. See Washington v. State, 582 S.W.2d at 124. Appellant's first point of error is overruled.
        In his second point of error, appellant contends that the trial court erred in overruling appellant's objection to the testimony of the child welfare officer that appellant did not protest the allegations of sexual abuse. Appellant contends that the jury therefore heard prejudicial testimony as to the silence of appellant. However, in his brief, appellant concedes that this was not error. We overrule this point of error.
        In his third point of error, appellant contends that the trial court erred in overruling his motion to consolidate the two cases filed against him and in not requiring the State to elect which of the two cases on trial upon which it would seek a conviction. However, the case appellant cites, Crawford v. State, 696 S.W.2d 903 (Tex. Crim. App. 1985), involved only one indictment alleging several criminal acts. In Crawford, the court held that the State was required to elect among the acts alleged in the one indictment. Crawford, 696 S.W.2d at 904. The case at bar involves two separate indictments for two entirely separate criminal episodes. The requirement for election delineated in Crawford does not apply in this case as there were separate indictments for two separate criminal episodes. We overrule this point of error.
        In his fourth point of error, appellant contends that the trial court erred in overruling his motion for mistrial. Appellant had moved for a mistrial because, on cross-examination of a defense witness, the following exchange took place:
 
        [PROSECUTOR]: Well, let's back up a bit. You said that you had talk him about messing with your daughter before?
 
        [COMPLAINANT'S MOTHER]: Right.
 
        [PROSECUTOR]: About when was that?
 
        [COMPLAINANT'S MOTHER]: The first time, when she was eight.
 
        [PROSECUTOR]: and I --
At that point, appellant objected. The court sustained the objection and instructed the jury to disregard.
        Generally, any error in admitting improper testimony may be cured by the trial court's withdrawal of the evidence and instruction to disregard. Crawford v. State, 603 S.W.2d 874, 876 (Tex. Crim. App. 1980). Any error would have been harmless, in any case, due to the fact that appellant admitted, in his confession, that the sexual abuse had been continuing over a period of years. Appellant did not object to the confession on the ground that it contained references to extraneous offenses. Error in the admission of evidence is cured where the same evidence comes in without objection. Boles v. State, 598 S.W.2d 274, 279-80 (Tex. Crim. App. 1980). We overrule this point of error.
        In his fifth point of error, appellant contends that the trial court erred in admitting into evidence letters from appellant written to his wife, as, he contends, the letters were privileged as interspousal communications. This rule of privilege, however, does not apply in a proceeding in which the accused is charged with a crime against the person of any minor child. Tex. R. Crim. Evid. 504(1)(d)(2). Appellant's fifth point of error is overruled.
        In his sixth point of error, appellant contends that the trial court erred in hearing testimony from his wife about whether the complaining witness would lie because appellant would not let her wear make-up.         Under this point of error, appellant argues that there was improper bolstering of the complainant's testimony by the complainant's mother, akin to testimony that the complainant was telling the truth. Admission of testimony regarding the complainant's veracity is improper. See Kirkpatrick v. State, 747 S.W.2d 833, 838 (Tex. App.--Dallas 1987, no pet.).
        Appellant had previously questioned the complainant's motive to fabricate by questioning the complainant's mother regarding appellant's discipline of and control over the complainant. The State's questions were not calculated to elicit bolstering testimony, but merely addressed issues already raised by appellant. We overrule appellant's sixth point of error.
        In point of error seven, appellant argues that the trial court erred in denying his motion for mistrial. At trial, the State asked the complainant's mother why she and the complainant had gone to counseling in Missouri. The complainant's mother replied that it was because the complainant was having nightmares. Appellant cross-examined her about the nightmares, asking whether they could be due to the complainant's lying about the charge against her father. The State then asked questions of the complainant's mother about the nightmares. At that time, appellant objected, the objection was sustained and he moved for mistrial. No request for an instruction to disregard was requested. The State again attempted to develop testimony on this issue, wherein appellant's hearsay objection was sustained and motion for mistrial was denied.
        We hold that appellant failed to preserve error, if any, on this issue by failing to request an instruction to disregard. See Johnson v. State, 604 S.W.2d 128, 132 (Tex. Crim. App. 1980); Duran v. State, 505 S.W.2d 863, 866 (Tex. Crim. App. 1974). We overrule appellant's seventh point of error.
        In his eighth point of error, appellant contends that the trial court erred in receiving evidence of an extraneous offense against the complainant. Appellant complains that such evidence, though clearly admissible under Boutwell v. State, 719 S.W.2d 184 (Tex. Crim. App. 1986), should have been excluded by the trial court. Appellant argues that, the Boutwell case is, in short, bad law and should not be followed. We follow the rulings of the Court of Criminal Appeals notwithstanding appellant's classifying it as "bad law." TEX. CONST. art. V sec. 5; State ex rel Vance v. Hatten, 508 S.W.2d 625, 628 (Tex. Crim. App. 1974). We overrule this point of error.
        In his point of error number nine, appellant argues that the trial court erred in denying his request for a mistrial. Appellant complains of the following argument by the State:
        [PROSECUTOR]: This is a controlling man. She's not going to come out and tell. Very typical. She doesn't come out and tell --
 
        [DEFENSE COUNSEL]: Your Honor, I would object. There's no evidence at all as to what's typical or not typical in that kind of situation.
 
        [THE COURT]: Sustain the objection.
 
        [DEFENSE COUNSEL]: Ask the jury be instructed to disregard.
 
        [THE COURT]: The jury is so instructed.
 
        [DEFENSE COUNSEL]: Respectfully move for a mistrial in light of State's continued misbehavior in front of the jury in the course of its argument.
 
        [THE COURT]: Motion is denied and overruled.
        Generally, an instruction to disregard cures error. Todd v. State, 598 S.W.2d 286, 294 (Tex. Crim. App. 1980); Johnson v. State, 583 S.W.2d 399, 407 (Tex. Crim. App. 1979). The argument in this case does not rise to the level of an extreme case of manifestly improper argument nor did it inject new and harmful facts into the case which would require a mistrial. See Basaluda v. State, 481 S.W.2d 851, 855 (Tex. Crim. App. 1972). The State's argument was based upon common knowledge, on which the jurors may properly rely in reaching their verdict. See Jordan v. State, 646 S.W.2d 946, 948 (Tex. Crim. App. 1983).
        Appellant also complains under this point of error of the following argument by the State:
        [PROSECUTOR]: Ladies and gentlemen, I tell you where Mr. Hoff messed up. He messed up because he's writing letters to his family. . . [these letters say]
 
"I don't know what to do, but as you see time is drawing near so all I can do is place this in your hands. If you come back, I'll get no more than ten years. I hope some day -- I hope you some day can forgive me and understand the chain of events I'm about to put into motion but I have no other choice at this point. The State wants more than I'll give." He's making this a plea bargain negotiation, this trial. He wants probation.
 
        [DEFENSE COUNSEL]: Your Honor, I would object. There's no evidence of plea bargain negotiation, one, and two, negotiations are an improper matter to be before this Court at this or any other time.
 
        [THE COURT]: Sustain the objection to the form of the argument.
 
        [DEFENSE COUNSEL]: I would also ask that the jury be instructed to disregard.
 
        [THE COURT]: Jury so instructed.
 
        [DEFENSE COUNSEL]: I would further move for mistrial.
 
        [THE COURT]: Motion is denied and overruled.
We hold that the court's instruction to disregard cured any error in this instance, see Todd v. State, 598 S.W.2d at 286, as the argument was not so manifestly improper as to require reversal. Basaluda v. State, 481 S.W.2d at 855. We overrule appellant's ninth point of error.
        The judgment of the trial court is affirmed.
 
 
 
 
 
                                                          
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
881110F.U05
 
FN:1 Appellant does not argue that the confession was the result of custodial interrogation; therefore, such issue it not before us.
File Date[12-07-89]
File Name[881110F]