THURSTON ELRAY MAYFIELD, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed February 26, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00334-CR
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THURSTON ELRAY MAYFIELD, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F06-88735-Y
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OPINION
Before Justices Bridges, Lang, and Lang-Miers
Opinion By Justice Lang-Miers
        Thurston Elray Mayfield was convicted of sexual assault of a child, enhanced by a prior conviction for indecency with a child. The jury assessed a mandatory life sentence. See Tex. Penal Code Ann. § 12.42(c)(2)(A)(i), (B)(ii) (Vernon Supp. 2009). Appellant raises six issues on appeal arguing that the trial court erred by overruling his objections to (1) extraneous offense evidence, (2)-(3) the admission of his written statement, (4) the testimony of an expert witness, (5) improper punishment evidence, and (6) the mandatory life sentence. We affirm.
Background
 
        C.S. testified that appellant, her stepfather, began sexually assaulting her when she was fourteen and that the conduct continued until her sixteenth birthday. During this time, she gave birth to appellant's child.   See Footnote 1  One night, C.S.'s mother awoke and appellant was not in the bed. When she opened the door to check on C.S. and the baby, she saw appellant with C.S. She pulled appellant out of the room by his hair, told him he was going to jail, and called 911. Appellant left. He was eventually located in Louisiana and extradited to Texas. Appellant was given his Miranda   See Footnote 2  rights, waived them, and gave a statement to police. He asked an officer to write the statement, which he read and signed. The statement was read to the jury. The jury found appellant guilty of sexual assault of a child.
        During the punishment phase, C.S. testified about the details of appellant's prior arrest and conviction for indecency with a child. She testified that when she was twelve years old, appellant pushed her on the bed, laid on top of her, and began to have an erection. She told her mother and the police, and appellant went to jail for two years. She said she later recanted because she felt she was ruining her mother's life. When appellant was released from prison, C.S.'s mother asked her if appellant could come back to live with them. C.S. said he could.
        Appellant testified during the punishment phase and denied all allegations of abuse. The jury found the enhancement paragraph true and assessed a mandatory life sentence.
Standard of Review
 
        We review a trial court's rulings on evidentiary matters for an abuse of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). We will uphold the ruling if it lies within the zone of reasonable disagreement. Id.
Extraneous Offense Evidence
 
        In his first issue, appellant argues that the trial court erred by overruling his objection to C.S.'s testimony about all the times he had sexually assaulted her over a two-year period. He contends that the testimony was not limited to the allegations in the indictment and, therefore, was not relevant. He also contends that the testimony violated his right to a fair trial, was an attack on his character prohibited by rule 404(b), and was more prejudicial than probative under rule 403.
        During C.S.'s testimony about the details of the sexual assaults, appellant objected as follows:
 
[Defense counsel]: Can I interrupt for a minute, Your Honor? Can we have this date as to the time or place?
 
        The trial court instructed the State to “try and do that.” The State asked additional questions and C.S. testified that the first time appellant sexually assaulted her was in the summer of 2005. The State then asked, “So what happens when you go in there and [appellant] is in there?” Appellant objected:
 
[Defense counsel]: You know, actually, Your Honor, I'm gonna have to ask if there's any possibility of being more definitive in regards to the allegation in the Indictment; otherwise, we're gonna object to any extraneous offense - extraneous other than the indicted offense.
 
        The trial court overruled the objection, noting that the testimony was “strictly intertwined with the charged offense.”
        Assuming without deciding that counsel's statement is an objection under rule 404(b), appellant did not object under rule 403 that the probative value of the evidence was substantially outweighed by its prejudicial effect. A rule 404(b) objection is not sufficient to preserve review under rule 403. Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991). As a result, appellant's argument that the testimony should have been excluded under rule 403 is not preserved for our review. See id.
        We cannot agree that the testimony was not relevant and was prohibited by rule 404(b). Additionally, notwithstanding rule 404, article 38.37 of the code of criminal procedure specifically authorizes the admission of evidence of other acts committed by the defendant against the child victim to show the state of mind of the defendant and the child and their previous and subsequent relationship. Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (Vernon Supp. 2009). We conclude that the trial court did not abuse its discretion by overruling appellant's objection to this evidence. We resolve appellant's first issue against him.
Admissibility of Written Statement
 
        In his second and third issues, appellant argues that the trial court erred by overruling his objections to the admissibility of his written statement. He contends that the statement was not voluntary because he requested a lawyer and was not provided one, and because the statement resulted from an illegal extradition hearing. We review a trial court's decision to admit or exclude an article 38.22 statement for abuse of discretion. Maldonado v. State, 998 S.W.2d 239, 246 (Tex. Crim. App. 1999).
        Article 38.22 precludes the admissibility of a written statement made by an accused as a result of custodial interrogation unless it is shown on the face of the statement that:
 
(a) the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that:
 
 
 
(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;
 
 
 
(2) any statement he makes may be used as evidence against him in court;
 
 
 
(3) he has the right to have a lawyer present to advise him prior to and during any questioning;
 
 
 
(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
 
 
 
(5) he has the right to terminate the interview at any time; and
 
 
 
(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.
 
Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 2005).
 
        The trial court conducted a pretrial hearing on the voluntariness of appellant's statement. Detective Arlene Martinez of the Dallas Police Department testified that she visited appellant in jail in Dallas after he was transported from Louisiana. She said she read appellant his constitutional rights from a “Miranda card” before she spoke to him. She testified that she advised appellant that he had the right to an attorney, the right to remain silent, that anything he said could be used against him, that he had the right to have an attorney present prior to and during questioning, that he had a right to have an attorney appointed to him to advise him prior to and during questioning, and that he had the right to terminate the interview at any time. She said appellant told her he understood his rights. He signed and dated the Miranda card containing these rights, and the card was admitted into evidence. Detective Martinez testified that she asked appellant if he would agree to give her a statement, and he agreed. She said appellant asked her to write the statement for him because he did not have good handwriting. She said she wrote what appellant told her to write, and, afterwards, appellant reviewed the statement and signed it in front of a witness from the Dallas Sheriff's Office. Detective Martinez testified that she did not offer appellant anything in exchange for the statement, that appellant never requested a lawyer, and that he never asked to stop the interview.
        Appellant testified in the hearing that he did not give the statement voluntarily because he asked for a lawyer and was not given one. He also testified that Detective Martinez told him what to say in his statement, even though some of those statements were not helpful to the State's case.   See Footnote 3          Appellant's two-page written statement was admitted into evidence at the hearing. Each page contains the required article 38.22 warnings at the top of the page. Each page also states that appellant made the statement voluntarily and of his own free will. Appellant signed and dated each page indicating that he knowingly, intelligently, and voluntarily waived his rights.
        Following the hearing, the court concluded that the statement was made voluntarily:
 
 
[The Court]: Article 38.22, Section 6, the Court finds that the statement was voluntarily made. The Court credits Detective Martinez, utterly discredits the defendant and finds that the statement is admissible. There is a written statement that complies with Article 38.22. Exhibit 4 [the Miranda card] is evidence that the defendant was properly Mirandized. He waived his rights and agreed to give this statement.
 
        Appellant did not contend below and does not contend on appeal that he was coerced into giving the statement. Instead, he contends only that he asked for a lawyer prior to giving the statement and was not provided one. He cites only his testimony at the hearing to support his argument and then, assuming error, argues the error was not harmless. He does not explain or argue why the trial court abused its discretion in concluding that his testimony at the hearing was not credible. And he does not attack any of the trial court's findings.
        The evidence showed that appellant was properly warned under article 38.22. He signed a card evidencing that he was properly warned. Each page of his written statement, which he signed and dated, also contained the article 38.22 warnings. Detective Martinez testified that appellant said he understood his rights and, in her opinion, voluntarily and intelligently waived those rights and gave a written statement. She testified that appellant never asked for an attorney and never asked to stop the interview. Although appellant testified otherwise, the trial court concluded that appellant's testimony was not credible. We defer to the trial court on all matters of credibility of the evidence. See Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995), overruled on other grounds by Warner v. State, 245 S.W.3d 458 (Tex. Crim. App. 2008). We will not disturb that finding if there is evidence to support it. See id. We conclude that the evidence supports the trial court's finding that appellant's statement complied with article 38.22. We resolve appellant's second issue against him.
        In his third issue, appellant argues that his statement should have been excluded because he was not afforded legal counsel at his extradition hearing in Louisiana. He contends that his “statement to the Texas police officer in the State of Louisiana were [sic] made without counsel even though the law required appointment of counsel.” Appellant refers to a written statement that he made in Louisiana, but appellant's brief does not contain record cites to that statement. The only written statement in the record is the one he gave to Detective Martinez in Dallas. We previously concluded that the trial court did not abuse its discretion by admitting that statement into evidence. We resolve appellant's third issue against him.
Expert Witness Testimony
 
        In his fourth issue, appellant argues that the trial court abused its discretion by overruling his objection to the testimony of the State's expert witness. In a hearing outside the presence of the jury, the court heard evidence of the witness's qualifications. Appellant made a lengthy objection, which we interpret as generally objecting that the witness was not qualified to testify as an expert in this case.   See Footnote 4  On appeal, appellant does not contend that the trial court abused its discretion by allowing the witness to testify as an expert. Instead, he attacks only certain portions of the witness's trial testimony. He specifically argues that the witness was not qualified to opine “about whether any sexual act was consensual” because the subject matter was beyond her expertise. And he contends that “there was no presentation of any scientific theory for any test administered by the witness.”
        Appellant's brief does not contain any record cites to the complained-of testimony. See Tex. R. App. P. 38.1(h) (brief must contain clear and concise argument for contentions made with appropriate citations to authorities and record). We are not required to search the record to find error for the appellant. See Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). In addition, appellant's objections on appeal do not comport with his trial objections. Consequently, this issue presents nothing for our review. See Santellan v. State, 939 S.W.2d 155, 171 (Tex. Crim. App. 1997); Rezac v. State, 782 S.W.2d 869, 870-71 (Tex. Crim. App. 1990). We resolve appellant's fourth issue against him.
Evidence in Punishment Phase
 
        In his fifth issue, appellant argues that the trial court abused its discretion by overruling his objection to C.S.'s mother's testimony during the punishment phase:
 
[The State]: Rhonda, we talked about - I asked you a long time ago and I told you that these 12 people are gonna ask the same question. Your daughter tells you that the defendant touches her, that your husband touches her. He pleads “guilty.” Goes down to the penitentiary. And you let him come back in your house after that time. Why, on earth, did you let that happen?
 
 
 
[Defense counsel]: I'm gonna object, Your Honor. This has some form of victim impact. I don't know where this is going to other than it's improper evidence under 37.07 as to the type of evidence you can present at a Punishment Hearing. Now, this woman is not on trial. And her reasons, one way or another, are not relevant to these proceedings.
 
        The trial court overruled the objection. C.S.'s mother then testified that she initially believed C.S., but later she began to believe that the incident did not really happen when C.S. recanted during a counseling session.
        On appeal, appellant argues that the evidence was not relevant and the trial court allowed “improper and irrelevant testimony . . . to play on the sympathy of the jury. . . .” He contends the evidence was improper under Mosley v. State. See Mosley, 983 S.W.2d at 261-65. That case involved whether victim impact and character evidence was admissible on the special issue of mitigation in a death penalty case. Appellant does not explain how the testimony from C.S.'s mother constitutes victim impact or character evidence.
        In addition, appellant states that the mother's testimony “made comparative worth analysis of the value of the victim to their families and the community compared to the defendant or other members of society contrary to Mosley . . . .” But appellant does not explain how it does that. And he did not object to the mother's testimony on this ground. See Santellan, 939 S.W.2d at 171 (complaint on appeal must comport with trial objection).
        We conclude that appellant has not shown that the trial court abused its discretion by admitting the mother's testimony. We resolve appellant's fifth issue against him.
Mandatory Life Sentence
 
        In his sixth issue, appellant argues that the trial court erred by overruling his objection to the mandatory life sentence. At trial, appellant objected to the mandatory life sentence on the grounds that it constituted cruel and unusual punishment, denied him due process, and failed to provide for jury discretion. On appeal, appellant complains only that the mandatory life sentence constitutes cruel and unusual punishment under the eighth amendment. Although appellant enumerates factors he contends we must consider in determining whether a particular sentence is cruel and unusual, he does not cite authority for those factors or argue or cite evidence to support the application of those factors to this case. Appellant does not explain how the mandatory life sentence imposed against him constitutes cruel and unusual punishment.
        The courts that have addressed whether the Texas habitual offender statute constitutes cruel and unusual punishment have concluded that it does not. See, e.g., Rummel v. Estelle, 445 U.S. 263, 285 (1980) (concluding that mandatory life sentence under Texas recidivism statute does not constitute cruel and unusual punishment); Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Armendariz v. State, 529 S.W.2d 525, 527-28 (Tex. Crim. App. 1975); Moore v. State, 54 S.W.3d 529, 540-43 (Tex. App.-Fort Worth 2001, pet. ref'd); Price v. State, 35 S.W.3d 136, 143-44 (Tex. App.-Waco 2000, pet. ref'd). Courts have also held that the length of a criminal sentence is a matter of legislative prerogative and that a sentence is not cruel and unusual simply because it is mandatory. See, e.g., Rummel, 445 U.S. at 274, 284-85 (stating length of sentence is purely matter of legislative prerogative); Moore, 54 S.W.3d at 541 (citing Harmelin v. Michigan, 501 U.S. 957, 962 (1991)); Price, 35 S.W.3d at 144. And Texas courts have frequently held that punishment is not cruel and unusual if it is assessed within the range authorized by statute. See, e.g., McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. [Panel Op.] 1978); Samuel v. State, 477 S.W.2d 611, 614-15 (Tex. Crim. App. 1972); Moore, 54 S.W.3d at 541; Price, 35 S.W.3d at 144.
        In this case appellant was found guilty of sexually assaulting a child. Because he was previously convicted of indecency with a child, penal code section 12.42 mandated a life sentence. See Tex. Penal Code Ann. § 12.42(c)(2)(A)(i), (B)(ii). The purpose of the “two strikes” amendment to the habitual sex offender provisions was to “strengthen Texas's sex-offender laws by . . . get[ting] sex offenders off the streets and away from potential victims for a longer period of time.” Griffith v. State, 116 S.W.3d 782, 788 (Tex. Crim. App. 2003). See Williams v. State, 10 S.W.3d 370, 372-73 (Tex. App.-Tyler 1999, pet. ref'd) (legislature has interest in removing habitual sexual predators of children from society and protecting children of Texas). We conclude that the mandatory life sentence assessed in this case did not constitute cruel and unusual punishment. We resolve appellant's sixth issue against him.
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080334F.U05
 
Footnote 1 C.S. told her mother that the child was someone else's.
Footnote 2 See Miranda v. Arizona, 384 U.S. 436 (1966).
Footnote 3 In his statement, appellant claims that C.S. initiated the sex with him.
Footnote 4 For example, appellant objected that the witness's qualifications did not meet the standard for experts, she failed to identify whether her field of expertise was legitimate, she did not testify that the testimony she would proffer properly utilized the principles involved in that field, she did not state whether she is a specialist, her testimony would not be helpful to the jury, and her testimony would invade the province of the jury.