Michael Wisdom v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-93-150-CR

MICHAEL WISDOM,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 92-609-C

O P I N I O N

Michael Wisdom appeals his conviction for aggravated sexual assault. Wisdom pleaded guilty, and the jury assessed punishment at eighteen years in prison. In two points of error Wisdom complains that the trial court erred in admitting his wife's testimony that she attempted to discourage her sister (the victim's mother) from reporting the offense to the police.

In point one Wisdom contends that the trial court erred in admitting the hearsay testimony of his wife, Deborah Wisdom. Wisdom called his wife to testify concerning his eligibility for probation. She testified that she had been married to Wisdom for ten years, that he had never been convicted of a felony offense, that he was employed as a truck driver, and that, whatever punishment the jury gave, she would be emotionally supportive of her husband. On cross-examination the prosecutor elicited the following:

QMrs. Wisdom, I need to ask you a couple of questions. All right? When this happened, how was it that you found out?

. . . .

AI was given a note.

QBy whom?

ABy my niece Jennifer.

. . . .

QWhat did you do with that note after you got it and you read it?

AI called Jennifer into my room.

QTalked to Jennifer?

AUh-huh.

QAnd then what did you do?

AI called Mike.

. . . .

QDid you confront him with the note?

AYeah. I handed him the letter, the note.

QDid he read it?

AUh-huh.

QAnd what did he say?

AHe said, "I have a problem, and I need help."

QWhat did you say to him?

AI asked him to leave.

QAnd he did that?

AUh-huh.

QAll right. And then you contacted Donna?

AUh-huh.

. . . .

QOkay. Did you have any conversations with Donna about not reporting this incident to the police?

[Defense Attorney]: I object, Judge. Rule 404(b), and it's also hearsay.

[Prosecutor]: Not if she's said she had a conversation, what she said. Judge, they are saying she's going to support the defendant, going to stand behind him. I'm asking whether she was standing beside him trying to prevent the police finding out about it at the time.

THE COURT: Ask that question. I'll allow that question.

QDid you talk to Donna about not reporting this to the police?

AYes.

QYou didn't want her to, did you?

ANo.

QAll right. And she ultimately did?

AYes.

[Prosecutor]: All right. That's all I have, Judge.

Wisdom argues that his wife's testimony, objected to by defense counsel, is "backdoor" hearsay because it places into evidence the facts of an out-of-court statement offered to prove the truth of the matter asserted. Although the wife's out-of-court "statement" was not directly offered or introduced into evidence, when there is an inescapable conclusion that a piece of evidence is being offered to prove a statement made outside the courtroom, a party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly. // A jury is not likely to distinguish between a direct recitation (e.g., "I told Donna that I did not want her to report this incident to the police") and an indirect reference to the out-of-court statement (i.e., "Did you talk to Donna about not reporting this [incident] to the police?"). Therefore, we hold that the trial court improperly allowed the State to introduce the hearsay testimony before the jury.

By its next question, however, the State offered Mrs. Wisdom's direct testimony, rather than her out-of-court statement, that she did not want her sister to report the incident to the police. No objection was made to Mrs. Wisdom's direct testimony, which was not subject to a hearsay objection. Therefore, any complaint about the admission of the indirect hearsay was rendered harmless when the same evidence came in by Mrs. Wisdom's direct testimony. // As a result, we overrule point of error one.

In point two Wisdom contends that the trial court erred in "not making a determination in the record as to why admitted evidence was more probative than prejudicial under Texas Rules of Criminal Evidence 404(b)." When a defendant objects under Rule 404(b), it is incumbent upon the State to satisfy the trial court that the "other crime, wrong, or act" has relevance apart from its tendency "to prove the character of a person in order to show that he acted in conformity therewith." // The trial court should honor any request by the opponent of the evidence for articulation into the record of the purpose for which evidence is ultimately admitted by the trial court. // However, Wisdom never requested the court to articulate the "other purpose" for which the evidence was admitted. Furthermore, Wisdom's point on appeal is worded in terms of an objection under Rule 403 that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. // An objection under Rule 404(b) will no longer suffice to require the trial court to balance the probativeness and prejudice under Rule 403. // Because Wisdom never requested the court to articulate the "other purpose" for which the evidence was admitted under Rule 404(b), and because he failed to further object under Rule 403, we overrule point of error two.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 6, 1994

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