HERBERT MCCULLOUGH III, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed November 16, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00201-CR
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HERBERT MCCULLOUGH III, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-0576303-M
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MEMORANDUM OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice O'Neill
        A jury convicted appellant Herbert McCullough III of aggravated sexual assault of a child and sentenced him to twenty years' confinement. On appeal, he challenges (1) whether the jury instructions required a unanimous verdict, (2) whether the trial court erred in refusing to admit evidence in violation of his right to confrontation and due process, (3) whether the trial court erred by admitting extraneous offenses, and (4) whether the trial court erred in admitting hearsay testimony of a therapist. We affirm the trial court's judgment.
 
 
 
Background
        Around April 30, 2005, appellant picked up complainant and drove her to an apartment complex.   See Footnote 1  Complainant thought he was taking her to buy special shoes for her birthday. However, rather than taking her to buy shoes, he pulled his truck over, moved to the backseat, and told her he was looking for police. He then asked her to remove her clothes but she refused. He drove to another part of the apartment complex and again told her to remove her clothes. This time she complied. He crawled into the backseat and took off his clothes. He then pulled out a pipe, smoked some of it, and blew part of it into her mouth.
        After blowing smoke into her mouth, he got lotion from the glove compartment and asked complainant to rub it on his private part. He then laid her back, rubbed lotion on her private part, and put his finger inside her. He also got on top of her and put his penis insider her. When she started screaming, “take me home. I want to go home,” appellant stopped, put his clothes on, and drove to another apartment complex. He proceeded to have sex with complainant again.
        Complainant fell asleep and when she woke up, appellant made her perform oral sex on him. She then threw up. He finally allowed her to get dressed, except he kept her underwear because he said it had “something” on it. He told her she was his best friend because “you can keep secrets.”
        The next evening, she told her mother she did not want to be alone with appellant anymore because he was doing “inappropriate things” and “being nasty” but she did not provide specific details.
        She later went to the hospital for an exam and told police about some of the abuse but did not admit to the oral sex because she was too embarrassed. She eventually admitted it when she talked with a forensic interviewer at the Dallas Children's Advocacy Center. She also admitted the allegations to a mental health therapist at the center.
        Appellant was charged with aggravated sexual assault of a child by causing the contact and penetration of the mouth of complainant with his sexual organ. The jury found him guilty. This appeal followed.
Failure of Jury Instructions to Require Unanimous Verdict
        In his first issue, appellant argues the jury instructions failed to require a unanimous verdict. Specifically, he claims he was charged with two separate offenses under penal code sections 22.021(a)(B)(ii) and 22.021(a)(B)(v); however, the application paragraph of the jury charge allowed the jury to find him guilty without unanimity as to which offense he committed. See Tex. Penal Code Ann. §§22.021(a)(B)(ii), (v) (West 2009). He claims the jury was improperly allowed to convict him if some found he caused his sexual organ to penetrate complainant's mouth while others found him guilty of causing only contact of his sexual organ with complainant's mouth. The State responds these two offenses are not considered separate offenses; therefore, no error occurred.
        We review alleged charge error by considering two questions: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005) (en banc). Thus, we turn first to the question of error.
        The jury was instructed as follows:
 
        Now, if you find and believe from the evidence beyond a reasonable doubt, that on or about the 1st day of May, A.D., 2005, in Dallas County, Texas, the defendant HERBERT MCCULLOUGH III, did unlawfully then and there intentionally or knowingly cause the contact or penetration of the mouth of [complainant], a child, who was not then the spouse of defendant, by the sexual organ of said defendant, and at the time of the offense, the child was younger than 14 years of age, then you will find the defendant guilty of the offense of aggravated sexual assault of a child as charged in the indictment, and you will make no finding in your verdict as to punishment.
 
Texas Penal Code section 22.021 criminalizes very specific acts, each constituting a separate statutory offense. Tex. Penal Code Ann. §22.021; Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999). However, an exception exists to the general rule when one act necessarily is subsumed by another such as contact and penetration. See Tyson v. State, 172 S.W.3d 172, 178 (Tex. App.-Fort Worth 2005, pet. ref'd) (recognizing section 22.021 involves separate offenses except in cases where one necessarily subsumes another, such as contact being subsumed by penetration).
        In Hendrix v. State, the appellant argued the trial court erred by charging the jury in the disjunctive for the offenses of penetration of the sexual organ and causing contact of the sexual organ because it violated his right to a unanimous verdict. See Hendrix v. State, 150 S.W.3d 839, 845 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd). The court of appeals determined that although it was possible some of the jurors could have found the appellant guilty of penetration while others found him guilty by contact, the contact was necessarily included in the penetration. Id. at 847 (citing Vick, 991 S.W.2d at 834 n.2). Thus, the appellant was not deprived of a unanimous verdict because all of the jurors who believed penetration occurred also believed contact had occurred, and a non-unanimous verdict was impossible. Id.
        Appellant argues his case is similar to Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007). We disagree. In that case, the appellant's right to a unanimous verdict was violated when he was charged with separate offenses of touching the breast and genitals of the complainant, but the court instructed the jury in the disjunctive which opened the door for some jurors to believe he was guilty of touching the breast while others believed he was guilty of touching the complainant's genitals. Id. at 719. Thus, it was possible the jury convicted him without reaching a unanimous verdict on the same act. Id. Unlike the present facts, Pizzo did not involve subsumed conduct such as contact and penetration. As such, appellant's reliance on Pizzo is unpersuasive.
        Because contact is subsumed in penetration, the trial court did not err in instructing the jury in the disjunctive. Accordingly, we conclude there was no error implicating appellant's right to a unanimous verdict. We overrule his first issue.
Admission of Evidence
        In his second issue, appellant argues the trial court violated his right to confrontation and due process by refusing to let him present evidence of an incident in which complainant's mother was reported to Child Protective Services for neglect. The State responds the issue is not properly preserved for review. We agree with the State.
        To preserve an issue for appeal, a party must raise a timely and specific objection to the trial court. Tex. R. App. P. 33.1(a)(1)(A). The purpose of requiring an objection is to give the trial court or the opposing party an opportunity to correct the error or remove the basis for the objection. Reyna v. State, 168 S.W.3d 173, 179 (Tex. 2005). This applies even to constitutional claims. Id. (holding Confrontation Clause argument not properly preserved when complaint was not specific to inform trial court if complaint involved rules of evidence or the Confrontation Clause). Further, when a complaint does not comport with the objection made at trial, the error is likewise not preserved. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
        Appellant repeatedly told the court he wanted the evidence before the jury to give them a “clear picture of the relationship that was going on at the time and the motivation to what some people might have said that might not have been true or was true.” He further stated the evidence was relevant to motive and to her credibility because he believed the allegations were fabricated. Appellant never specifically stated he was objecting on the basis of the Confrontation Clause and due process, which is the complaint he now raises on appeal.
        Based on this record, we cannot say appellant sufficiently informed the trial court he was making an objection under the Confrontation Clause and due process. His reference to credibility and motive could have easily encompassed an objection to the rules of evidence. See e.g., Reyna, 168 S.W.3d at 179. Thus, we conclude appellant failed to preserve his argument. We overrule his second issue.
Extraneous Offenses
        In his third and fourth issues, appellant contends the trial court erred in overruling his objections to two extraneous offenses because the State failed to provide adequate notice. The State replies notice was adequate to draw attention to the offenses and moreover, there was no harm.
        At trial, appellant objected to the admission of two extraneous offenses on the basis that the facts in the State's written notice were inconsistent with the complainant's testimony of the incidents. The State provided notice that “Defendant touched the complainant with his hands over her clothes on her vagina, genitals, breast, and buttocks in a bedroom of Defendant's home.” However, complainant testified to an incident where appellant touched the inside of her privates with his finger under her clothes and never mentioned any touching of her breast or buttocks.
        The State's notice of the second extraneous offense involved appellant grabbing complainant's hand and putting it on his penis while they watched television at appellant's home. However, complainant testified the incident happened at her mother's home. The court overruled appellant's objections.
        An extraneous offense is any act of misconduct, whether resulting in prosecution or not, which is not shown in the charging instrument and was shown to have been committed by the accused. Hernandez v. State, 817 S.W.2d 744, 747 (Tex. App.-Houston [1st Dist.] 1991, no pet.). We review a trial court's ruling on the admissibility of extraneous offenses for an abuse of discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). There is no abuse of discretion so long as the trial court's ruling is within the zone of reasonable disagreement. Id.
        When, as here, the defendant makes a timely request, the State must provide “reasonable notice . . . in advance of trial” of its intent to introduce evidence of extraneous conduct. Tex. R. Evid. 404(b); see also Tex. Code Crim. Proc. Ann. art. 38.37, §3 (West Supp. 2009). “Reasonable notice” is not defined in the rule, and therefore depends on the facts and circumstances of each individual case. See Scott v. State, 57 S.W.3d 476, 480 (Tex. App.-Waco 2001, pet. ref'd). The purpose of the notice requirement is to prevent surprise to the defendant and apprise him of the offenses the State plans to introduce at trial. Cole v. State, 987 S.W.2d 893, 897 (Tex. App.-Fort Worth 1998, pet. ref'd).
        Assuming without deciding the State failed to give proper notice of the extraneous offenses, we conclude appellant has failed to show harm. To show harm, the error in admitting the evidence must have had a substantial and injurious effect in determining the jury's verdict. Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005). We determine whether the admission had an affect on appellant's substantial rights under a rule 44.2(b) harm analysis. Id; see also Tex. R. App. P. 44.2(b). In construing this type of error, we note that rule of evidence 404(b) is a notice provision aimed at preventing surprise; therefore, when conducting our harm analysis, the issue of surprise to appellant is a valid consideration. Id. at 825.
        Here, appellant never argued he was surprised by the evidence nor did he, at any time, request a continuance to prepare to defend against the extraneous evidence. Rather, the record shows appellant cross-examined complainant about the events. Further, his defense strategy was to attack her credibility, which he did through cross-examination; therefore, the record does not show how any lack of notice by the State hindered his ability to present a defense. Therefore, we cannot say the admission of the evidence had an injurious effect on the jury's determination. Id. We overrule appellant's third and fourth issues.
Therapist's Testimony
        In his final issue, appellant contends the trial court erred by overruling his hearsay objection regarding testimony from complainant's therapist. Specifically, he claims it was hearsay for the therapist to testify to what complainant told her about the sexual abuse. The State asserts her testimony falls under the medical diagnosis exception to the hearsay rule. Further, complainant testified to the same facts; therefore, appellant cannot show harm.
        We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). The improper admission of hearsay evidence is non-constitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see also Tex. R. App. P. 44.2(b) (noting court may not reverse if, after examining the record as a whole, it has fair assurance the error did not have a substantial and injurious effect or influence in determining the jury's verdict). Further, the trial court's erroneous admission of evidence will not result in a reversal when the same evidence is received without objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).
        Assuming without deciding the trial court erred in overruling appellant's hearsay objection, we conclude he has failed to show harm. Complainant testified in detail, without objection, to the sexual abuse committed by appellant. When the therapist testified, she said complainant reported “vaginal penetration, also oral sex was requested by the perpetrator.” She also stated “the perpetrator tired to kiss her, was pretty rough with her from my understanding and also she was asked to masturbate him with lotion.” Thus, the jury did not hear any new harmful evidence from the therapist. Accordingly, any error in the admission of her testimony was harmless. Appellant's fifth issue is overruled.
Conclusion
        Having overruled all of appellant's issues, we affirm the trial court's judgment.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
090201F.U05
 
Footnote 1 Complainant is appellant's biological daughter. She was nine years old at the time of the offense, but twelve years old at the time of trial.