BILLY GEAN TORRIS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed July 31, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00829-CR
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BILLY GEAN TORRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-80161-06
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OPINION
Before Justices Whittington, Richer, and Mazzant
Opinion By Justice Richter
        Appellant Billy Gean Torris challenges his conviction on two counts of indecency with a child. A jury found appellant guilty on both counts, sentenced him to twenty years' imprisonment on each count and assessed a $10,000 fine. In two issues, appellant contends the trial court erred because: (1) evidence admitted during the punishment phase was speculative, irrelevant, and unfairly prejudicial; and (2) the videotape of the forensic interview of the victim should not have been admitted into evidence. We affirm the trial court's judgment.
 
Background
 
        On the last day of fourth grade, nine year-old C.P. planned to spend the night with her friends J.G. and M.G. The three friends convened in the gameroom to watch television and were joined by appellant, the stepfather of J.G. and M.G. After J.G. and M.G. fell asleep, appellant moved closer to C.P. and began rubbing her legs. C.P. moved away, but appellant persisted. Appellant rubbed C.P.'s breasts, crotch, and buttocks over her clothing. C.P. told appellant to stop, but appellant continued. C.P. became afraid, started to cry, and called her mother at around midnight. C.P. told her mother she needed her and asked her mother to come take her home.
        When C.P.'s mother picked her up, C.P. told her what appellant had done. C.P. returned home and went to bed. The next morning, C.P. repeated the same account of the incident to her mother and father. Mother and father called the police.
        The police arranged for C.P. to go to the Children's Advocacy Center (CAC). C.P. was interviewed by Katherine Jenkins, a forensic interviewer. The interview was videotaped. During the guilt/innocence phase of the trial, Jenkins testified about her interview of C.P. During the cross- examination of Jenkins, the court conducted a hearing outside the presence of the jury. The hearing was for the purpose of discussing evidentiary issues, including the State's request to offer into evidence the videotape of the forensic interview. The State argued the videotape was admissible because of appellant's cross-examination of C.P. which implied her testimony had been coached. The trial court initially sustained appellant's objection to the videotape. The next morning, the court considered the issue again. After considering the arguments of counsel, the court concluded the video would be admitted. After the video was admitted into evidence, it was played for the jury.
        C.P. and her mother and father also testified at trial. Appellant cross-examined C.P. about how much she actually told her parents on the night of the offense and whether her recollections changed after meeting with the prosecutor. Appellant also cross-examined mother about the
details C.P. provided on the night of the incident and the details she recounted the morning after.
        The jury returned a guilty verdict on both counts of indecency with a child. During the punishment phase of the trial, mother, father, and C.P. all testified again. Father testified that appellant needed to be kept away from children and stated “[k]eep him as far away as we possibly can, at least long enough for those two [M.G. and J.G.] to grow up and get out of the house. . . .” Appellant did not object. Mother's testimony included the statement “ . . .who knows what he's doing to his children that are in his house right now. We have to protect them. . . .” Again, appellant failed to object. The State also called appellant's daughter A.T. to testify. When A.T. was asked if she was aware of appellant doing anything like what he had done to C.P. to anyone else, A.T. replied “I've always thought he might have done it to [M.G. and J.G.] but I'm not really sure.” Appellant did not object.
        Appellant, his mother, father, and wife all testified for the defense. Appellant also testified and told the jury he was a good candidate for probation. The jury assessed punishment at two twenty-year terms to run concurrently and a $10,000 fine. This appeal followed.
The Admission of Punishment Evidence
        In his first issue, appellant challenges the admission of evidence during the punishment phase of the trial. Appellant argues the prosecutor elicited speculative testimony from father, mother, A.T., and appellant's mother. According to appellant, this testimony suggested the witnesses were worried that appellant had abused other children or would abuse children in the future. Appellant also argues that during closing argument, the State improperly encouraged the jury to speculate about whether appellant was molesting M.G. and J.G. The State maintains none of these complaints have been preserved for our review. We agree with the State.
        It is well-established that a complaint presented for appellate review must be preserved through a timely, specific objection at trial. See Tex. R. App. P. 33.1(a)(1); Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999). The rule concerning preservation of error applies with equal force to both the admission of evidence and the content of a jury argument. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). Appellant also contends, without argument or explanation, that the admission of the evidence constitutes error of constitutional magnitude. But even constitutional error can be waived by a failure to object at trial. See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).
        Appellant did not object to the questioning or testimony of mother, father, A.T., or his mother on constitutional or any other grounds.   See Footnote 1  Similarly, appellant did not object to closing argument. Because appellant failed to object at trial to that which he now seeks to challenge on appeal, we conclude the issue has not been preserved for our review. Appellant's first issue is overruled.
Admission of the Videotape
        In his second issue, appellant asserts the trial court erred by admitting the videotape of C.P.'s forensic interview into evidence. Appellant contends the admission of the evidence was improper because it was offered to bolster the victim's testimony and counter other forms of impeachment. Appellant further asserts that his rights to due process, due course of law, and right of confrontation were violated when he was required to call the victim to testify to rebut the content of the improperly admitted video.
        As with most evidentiary rulings, a trial court's determination that a prior consistent statement is admissible because cross-examination suggested or implied an assertion of recent fabrication or improper motive is reviewed for an abuse of discretion. See Hammons v. State, 239 S.W.3d 798, 805, n.21 (Tex. Crim. App. 2007); Bolden v. State, 967 S.W.2d 895, 898 (Tex. App.-Fort Worth 1998, pet. ref'd). A statement is not hearsay if the declarant testifies at trial, is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and offered to rebut an express or implied charge of recent fabrication, improper influence, or motive. See Tex. R. Evid. 801 (e)(1)(B). The prior consistent statement must relate to the same matter or incident the declarant testified to at trial. Kipp v. State, 876 S.W.2d 330, 338 (Tex. Crim. App. 1994). The prior consistent statement must also have been made before the motive to fabricate arose. Dowthitt v. State, 931 S.W.2d 244, 263 (Tex. Crim. App. 1996).
        Defense counsel presented intense and thorough cross-examination of C.P., raising doubts as to fabrication and improper influence. Counsel repeatedly inquired about the details of C.P.'s disclosure to her mother when they arrived home the night of the incident. Counsel asked about discrepancies between the video and C.P.'s testimony, and probed C.P.'s understanding of her obligation to tell the truth in court. Counsel also asked C.P. if she made the allegations up as an excuse to go home early that night. At one point, counsel inquired whether the prosecutors told C.P. what to say when she met with them before trial. These inquiries constituted more than just a simple test of C.P.'s memory. And there need be only a suggestion that the witness consciously altered her testimony in order to permit the use of earlier statements that are generally consistent with the testimony at trial. Hammons, 239 S.W.3d at 804. Appellant's cross-examination raised such a suggestion. The videotape related to the same incident C.P. described in her trial testimony. The videotape was made well before C.P. met with the prosecutors. Therefore, the criteria for the admission of this prior consistent statement was met. See Tex. R. Evid. 801 (e)(1)(B).
        Appellant contends the videotape was inadmissible because he did not impeach C.P. and her testimony was consistent. Appellant also maintains the references to coaching came out through other witnesses. The rule, however, speaks in terms of an express or implied charge of recent fabrication or improper influence rather than impeachment or inconsistencies in the witnesses' testimony. See Tex. R. Evid. 801 (e)(1)(B). Beginning with the cross examination of C.P. and continuing with other witnesses, appellant laid the foundation for his final argument-that C.P. made up the story to justify going home early. From the totality of the questioning, the trial judge could reasonably have concluded appellant was mounting a charge of recent fabrication or motive. See Hammons, 239 S.W.3d at 808-09.
        Appellant relies on Long v. State, 742 S.W.2d 302 (Tex. Crim. App. 1987) overruled on other grounds, Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) as the basis for his confrontation clause argument. Long involved the constitutionality of a provision of former Tex. Code Crim. Proc. Ann. art. 38.071 which allowed a child's testimony to be offered by video.   See Footnote 2  In Long, the State bolstered its videotape by calling the complainant as a rebuttal witness without any intervening cross-examination. In its discussion concerning the constitutionality of the statute, the Long court observed that the statute imposed an unconstitutional burden on a defendant because it required the defendant to call his accuser as a witness in order to question him. Id. at 320-21. As a result, the court found the statute violated a defendant's right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution. Id. at 323. Citing to Long, appellant argues this case involves the same type of constitutionally impermissible burden. According to appellant, he was placed in the position of having to call his accuser as a witness if he wanted to rebut the videotape. Appellant's quotation of Long is out of context and his reliance on the case is misplaced. The videotape in the instant case was not introduced pursuant to statute, but rather as a prior consistent statement made admissible through appellant's cross-examination of the witness. The witness testified in the State's case-in-chief and was cross-examined. Moreover, appellant inquired about the videotape during cross-examination. Thus, Long is clearly distinguishable and has no application in the present case.
        We conclude the trial court did not abuse its discretion in admitting the videotape of C.P.'s prior consistent statement to rebut appellant's suggestion of recent fabrication or influence. Appellant's second issue is overruled.
        Having resolved all of appellant's issues against him, we affirm the trial court's judgment.
                                                                  
 
                                                                  
                                                                  MARTIN RICHTER
                                                                  JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47        
070829F.U05
 
Footnote 1 Appellant also makes an incidental reference to a question posed to his wife, although it is unclear whether appellant intended to include this in his collective complaint. Appellant did object to the question he references, but there was no ruling on the objection. The court directed that the question be rephrased, and after attempting without success to lay a predicate, the State abandoned the line of questioning.
Footnote 2 Appellant also references the current version of the statute, Tex. Code Crim. Proc. Ann. art. 38.071 (Vernon Supp. 2007). But the statute has no application here where C.P. was not “unavailable” and testified at trial.