Rodolfo Nelson v. The State of Texas--Appeal from 184th District Court of Harris County

Affirmed and Memorandum Opinion filed September 27, 2007

Affirmed and Memorandum Opinion filed September 27, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00684-CR

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RODOLFO NELSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 1012117

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

Appellant, Rodolfo Nelson, appeals his conviction for sexual assault. See Tex. Pen. Code Ann. '22.011(a)(1)(A) (Vernon Supp. 2006). In two issues on appeal, appellant contends the trial court abused its discretion when it: (1) overruled appellant=s objection to the State=s use of appellant=s prior conviction for criminal mischief for impeachment purposes; and (2) ruled that the complainant could not be impeached by evidence she had used illegal drugs approximately one day prior to the alleged sexual assault by appellant. We affirm.

Factual and Procedural Background

The complainant first encountered appellant on October 18, 2003 when she and a friend were leaving a Houston mall. Appellant asked Complainant for her telephone number. Complainant gave appellant her cell number. Appellant called Complainant and asked her to go with him to a carnival set up in a mall parking lot. Complainant agreed.

Appellant picked Complainant up at her house in a car driven by appellant=s friend, Carlos Hump. Instead of driving to the carnival, Hump drove to pick up appellant=s cousin, who was only 16 or 17 years of age. Hump then drove out Highway 290 and parked at a dead end in the far western portion of Harris County. The group got out of the car and Complainant began drinking rum with Hump. Appellant then became aggressive, touching and hugging Complainant and rubbing her vaginal area through her clothes. When Complainant rejected appellant=s sexual advances and tried to walk away, appellant took Complainant by the waist and directed her back to the car where Hump slammed her down on the hood of the car. Appellant then pushed Complainant into the back seat of the car, pulled down her pants and vaginally raped her. Hump and appellant then told appellant=s cousin to do the same, but he refused. Complainant exited the car. Appellant, angry at Complainant=s tears, walked up and slapped her on the face hard enough to knock her down. Appellant and Hump then pushed Complainant back into the car where Hump also raped her.

They then drove back into Houston on Highway 290 and Complainant got out of the car at the same time appellant and his cousin left. Complainant saw a police car soon thereafter and reported what had happened. The police officer called an ambulance which took Complainant to the hospital.

Prior to trial, the State gave appellant notice that it intended to use appellant=s prior conviction for criminal mischief for impeachment purposes. Appellant then filed a motion for a Theus hearing, requesting the trial court to review the Theus factors before permitting impeachment with appellant=s prior conviction. See Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992). The trial court held a hearing and denied appellant=s motion objecting to the State=s use of his prior conviction and ruled that appellant=s conviction was admissible if appellant testified. During the guilt/innocence portion of the trial, appellant testified in his own defense. As part of his testimony on direct examination, appellant admitted his prior conviction for criminal mischief.

Appellant was found guilty by the jury and was sentenced to twenty-years= confinement in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed.

Discussion

A. Appellant Waived Error Regarding Admission of Evidence Concerning His Prior Conviction for Criminal Mischief

In his first issue, appellant contends the trial court abused its discretion when it overruled his objection to the use of his prior conviction for criminal mischief for impeachment purposes.

1. Standard of Review

An appellate court reviewing a trial court=s ruling on the admissibility of evidence must utilize an abuse of discretion standard of review. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). In other words, the appellate court must uphold the trial court=s ruling if it was within the zone of reasonable disagreement. Id.

2. By Offering the Evidence of His Prior Conviction, Appellant Waived Any Error Regarding the Admission of This Evidence

As a general rule, a complaint regarding allegedly improperly admitted evidence is waived if the same evidence is introduced by the defendant himself. Wootton v. State, 132 S.W.3d 80, 84 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). An exception to this general rule applies when the accused introduces the evidence in an effort to meet, rebut, destroy, deny, or explain evidence that already has been improperly admitted. Id. This exception does not apply in this case. The record demonstrates that appellant testified about his prior conviction on direct examination apparently in an effort to preempt questions appellant anticipated would be asked by the State during cross-examination. At that point, there had not been any evidence admitted relating to appellant=s prior conviction. During his trial, appellant faced a choice: (1) he could choose not to testify and the jury would not have learned of his previous conviction; (2) if he testified and the State introduced his prior conviction during its cross-examination, he could then attempt to mitigate that evidence during redirect examination; or (3) he could preemptively testify about his prior conviction in an effort to reduce its impact on the jury. Appellant chose the third option and told the jury about his prior conviction. By testifying on direct examination about his prior criminal mischief conviction, appellant waived any error relating to the trial court=s ruling regarding admissibility of the conviction. Id. We overrule appellant=s first issue.

 B. Appellant Waived Error Concerning The Trial Court=s Prohibiting His Cross-Examination of Appellant Regarding Her Prior Drug Use

In his second issue, appellant complains that the trial court erred when it limited his cross-examination of Complainant. Specifically, appellant argues the trial court should have permitted him to cross-examine Complainant regarding her use of drugs more than twenty-four hours prior to the incident. Appellant contends on appeal that this action by the trial court violated his federal constitutional right to confrontation.

1. Standard of Review

The Sixth Amendment right to confrontation necessarily includes the right to cross-examine. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). This constitutional right is violated when appropriate cross-examination is limited. Id. We review the trial court=s exclusion of evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). A trial court does not abuse its discretion unless its ruling is arbitrary and unreasonable and therefore outside the zone of reasonable disagreement. Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003). The mere fact that a trial court might decide a matter within its discretionary authority in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id.

2. Appellant Failed to Preserve His Complaint By Failing to Object to the Exclusion of the Evidence on Constitutional Grounds

To preserve error, a defendant must lodge a timely, specific objection. See Tex. R. App. P. 33.1. Even constitutional error may be waived by failure to raise the issue at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). Specifically, a defendant waives his constitutional right to confront witnesses if he does not object to the denial of that right at trial. Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991). In addition, a party seeking to introduce evidence must meet an objection with argument stating the basis for its admission. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005). If the proponent of the evidence does not clearly articulate to the trial court that the Confrontation Clause requires the admission of the challenged evidence, he fails to do everything necessary to bring to the judge=s attention the evidence rule or statute in question and its precise and proper application to the evidence in question and error is not preserved. Id. at 179B80. It is not enough to merely attempt to introduce the evidence or to tell the judge that evidence is admissible. Id. at 179. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible. Id.

Here, the trial court prohibited appellant from questioning Complainant regarding her drug use more than twenty-four hours before the incident. Appellant made an offer of proof and following that, the trial court sustained the State=s objection to the testimony. The record does not demonstrate that appellant objected to the trial court=s exclusion of the evidence on the basis of the Confrontation Clause or that he obtained a ruling from the trial court on that basis for admitting the evidence. Therefore, because appellant failed to preserve this complaint by lodging a specific Confrontation Clause objection with the trial court, he has waived his second issue on appeal. Eustis v. State, 191 S.W.3d 879, 885B86 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d). We overrule appellant=s second issue.

Conclusion

Having overruled all of appellant=s issues, we affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed September 27, 2007.

Panel consists of Justices Anderson, Frost, and Mirabal.[1](Mirabal, J. Concurs in the result only without an opinion.)

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Senior Justice Margaret G. Mirabal sitting by assignment. Justice Mirabal concurs in the result only, noting in connection with issue two that, in Justice Mirabal=s opinion, appellant preserved his complaint for appellate review. See Wyborny v. State, 209 S.W.3d 285, 291 (Tex. App.CHouston [1st Dist.] 2006, pet. ref=d); Alexander v. State, 949 S.W.2d 772, 774B75 (Tex. App.CDallas 1997, pet. ref=d).