Bret James Knight v. The State of Texas--Appeal from 178th District Court of Harris County

Knight v. State /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-93-189-CR

 

BRET JAMES KNIGHT,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 178th District Court

Harris County, Texas

Trial Court # 618,476

 

O P I N I O N

 

Appellant Bret James Knight was charged by indictment with the offense of sexual assault, to which he pleaded not guilty. Trial was had to a jury which found Appellant guilty and, after a punishment hearing, the jury assessed punishment at seven (7) years confinement in the Texas Department of Criminal Justice, Institutional Division, from which Appellant makes this appeal.

Appellant asserts four points of error. We overrule all of Appellant's points and contentions and affirm the trial court's judgment.

Appellant's first point of error is stated as follows:

The trial court erred in not allowing Appellant to testify as to Bobby's comments about complainant under Rule 803 of the Texas Rules of criminal Evidence as that evidence was not hearsay for it was not being introduced for the truth of the matter asserted rather to demonstrate Appellant's state of mind as to complainant's "consent."

Bobby Harsell, Jr., was the victim's "date" on the night this crime occurred. Bobby, Appellant, Appellant's brother Troy, and Appellant's mother picked up the victim where a friend dropped her off at a convenience store. They drove from the convenience store on Eldridge in West Houston to the Knight's house in Spring, Texas. Bobby and the victim planned to spend the night together at the Knight's, and Bobby would take her home early the next morning.

However, during the night, Bobby's mother arrived unexpectedly at the Knight residence looking for Bobby because she had not given her permission for him to spend the night there. After Bobby went home with his mother, the victim was left alone in the house with Appellant and his brother whom she did not know. She testified that Appellant sexually assaulted her.

Appellant admitted to having sexual intercourse with the victim. However, he contended that it was consensual.

This point of error concerns the trial judge's denying admission of a statement allegedly made by Bobby Harsell about the victim to Appellant and his brother before Bobby's mother picked him up. Out of the jury's presence, Appellant testified as follows:

[DEFENSE COUNSEL]: Mr. Knight, when Bobby came out wrapped in the blanket or whatever, what did he say about [the victim]?

[APPELLANT]: He came out, and he talked to me. And he goes, hey, you know I said, what are you doing back there? And he said, I'm about to get some, or whatever. And he goes, do you want some?

[DEFENSE COUNSEL]: When he said, about to get some, what did you understand by, about to get some?

[APPELLANT]: Sex with her.

[DEFENSE COUNSEL]: And what did you say?

[APPELLANT]: I said, are you sure? I mean, what do you mean? And he goes he said

[DEFENSE COUNSEL]: What did he say?

[APPELLANT]: He goes, she's ready to go all night.

[DEFENSE COUNSEL]: When he said, she's ready to go all night, what did you understand by that?

[APPELLANT]: That he was she was some kind of freak or something, you know, just someone who likes to have sex.

[DEFENSE COUNSEL]: Had Bobby had any conversation prior to that time with you about this girl that was coming over that night?

[APPELLANT]: Not really. He said she was kind of wild or whatever, like a freak, I mean.

[DEFENSE COUNSEL]: Did you have any idea that this [victim] might have sex with you or

[APPELLANT]: I got the feeling from what he said to me, you know, that she was an all-around girl or whatever.

[DEFENSE COUNSEL]: When you say an all-around girl, you mean that she wouldn't mind have sex with Bobby and with you perhaps?

[APPELLANT]: Right, or anybody else there, you know, under the circumstances.

 

Counsel for the defense then stated:

Your Honor, the reason we'd like to get this into evidence is it wouldn't be hearsay itself; because we're not putting it forward for the truth of the matter asserted, being that she was ready to have sex with Mr. Knight here, but this will go to his later state of mind when he's going to testify that he did have sex with [the victim]. And this information that came from [the victim's] boyfriend, Bobby Harsell, gave him later on the state of mind to think that she was a willing participant, to think that she was consenting to the sex. And, therefore, we're offering it not for the purpose that she was ready to have sex with other people, but that Mr. Knight believed she was ready to have sex with other people. And so, therefore, it wouldn't be hearsay.

 

The State objected to this evidence on the basis of hearsay and relevance. The objection was sustained.

In his brief, Appellant argues that "these statements were not hearsay because they were not introduced for their truthfulness, rather to show Appellant's state of mind at the time of the offense." The Appellant is confused.

Bobby Harsell's alleged statements about the victim were clearly hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Crim. Evid. Ann. 801(d). Despite Appellant's contentions to the contrary, the proffered testimony was being offered for its truth because Appellant contested the consensual nature of his admittedly intimate relations with the victim that night. Bobby's statements that the victim was "ready to go all night," "kind of wild," that he was "about to get some," and did Appellant "want some," supported Appellant's version of the events, i.e., that the victim was not an unwilling participant. On the other hand, if the evidence was not being offered for its truth, it did not support Appellant's theory of the case because it did not show that the victim consented to sexual relations with Appellant. Rather, it would have shown only that Appellant entertained a certain belief about the victim before the crime occurred which perhaps explained an initial overture to her. However, this initial belief is the only probative value such evidence, not offered for its truth, would have since it could not have been considered by the factfinder as evidence that the victim was, in fact, "ready to go all night," "kind of wild," that Bobby was "about to get some," etc. Therefore, the statements were clearly offered for the truth of the matters asserted.

Appellant also argues that several exceptions to the hearsay rule apply to this evidence, i.e., that they were present sense impressions, excited utterances, or state of mind exceptions. None of these exceptions is applicable in this case, and only one of them, the state of mind exception, was raised in the trial court. The rest of Appellant's arguments were therefore waived. The law is settled beyond dispute that the point presented on appeal must be the same as the objection raised at trial in order for any complaint to be preserved. Ransom v. State, 789 S.W.2d 572, 584-85 (Tex. Crim. App. 1989), cert. denied, 110 S. Ct. 3255 (1990); Little v. State, 758 S.W.2d 551, 563-64 (Tex. Crim. App.), cert. denied, 488 U.S. 934, 109 S. Ct. 328, 102 L. Ed. 2d 346 (1988).

The state of mind exception to the hearsay rule is found in Tex. R. Crim. Evid. 803(3):

Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

 

The declarant of the statements in question was Bobby Harsell. However, according to Appellant's assertions both in the Court below and in this Court, he did not offer the statements to show Bobby's state of mind. He wanted to offer them to show his own state of mind. This is outside the parameters of the exception.

We overrule Appellant's first point of error.

Appellant's second point of error is as follows:

The trial court erred in allowing the introduction of damaging medical evidence without a supporting witness denying Appellant his right to confront his accusers under the Sixth Amendment to the United States Constitution.

 

Appellant does not contest the authenticity of the records of Houston Northwest Medical Center included in State's Exhibit No. 13. Rather, his complaint is the absence of the examining physician to explain his entries in the records. In the trial court, counsel for the defense stated the objection as follows:

Well, my only problem, Judge, is some of these things I'd like the chance to question somebody about the entries made here. I don't have any medical expert to testify on my side. And basically my only problem with this report, if we could have somebody on hers, who examined the patient, if we could have her allow me to ask some questions about the report, . . .

 

. . .

[T]he problem is that rule allows you not to call the medical records custodian, which I agree with. The only thing is the records can't be testified about unless we have some medical expert to testify about the records . . . . I have no problem with dispensing of [sic] the custodian having to come in, which I think is the purpose of the rule. My only problem would be if we don't have somebody to testify what these records mean, then I'm not given a chance to cross-examine them with respect to the entries made. That's the problem. So Mr. Knight would be denied his confrontation.

 

. . .

Our objection is we have no objection that this is [not] an authentic document. But we have an objection, since it's my understanding that the State won't have a supporting witness to testify about the examination, because this witness is unavailable. And the witness is under subpoena, which we're entitled to rely on as a defense, and that we would ask that the evidence not be put before the jury until and unless that witness who did the examination or was present during the examination is here to testify. Because among other things, it denies Mr. Knight his right of confrontation of the witnesses against him. Because when this report comes in and we can't cross-examine anybody about how the report was done and the entries made, he's denied his right to confront his accusers; because we can't cross-examine the document.

 

The record is clear that Appellant did not object to State's Exhibit No. 13 on the basis of its authenticity. Rather, his entire complaint was that the examining physician had not been called to testify as a witness for the State.

State's Exhibit No. 13 was a record of regularly conducted activity, as provided for in Tex. R. Crim. Evid. 803(6), and the trial judge did not err in admitting it into evidence. The affidavit accompanying the records complied with the form included in Tex. R. Crim. Evid. 902(10).

The absence of the examining physician who made the actual entries did not violate Appellant's Sixth Amendment right to confront the witnesses against him. The United States Supreme Court wrote in White v. Illinois, U.S. , 112 S. Ct. 736, 743 (1992), that "where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied." This is because "a statement that qualifies for admission under a `firmly rooted' hearsay exception is so trustworthy that adversarial testing can be expected to add little to its reliability." Id.

Furthermore, if the physician had been subpoenaed, as defense counsel said ("And the witness is under subpoena, which we're entitled to rely on . . . "), the defense could have requested a writ of attachment from the court. See Tex. Code Crim. Proc. Ann. art. 24.12. According to the express terms of Tex. Code Crim. Proc. Ann. art. 24.03(a):

. . . When a witness has been served with a subpoena, attached or placed under bail at the instance of either party in a particular case, such execution of process shall inure to the benefit of the opposite party in such case in the event such opposite party desires to use such witness on the trial of the case, provided that when a witness has once been served with a subpoena, no further subpoena shall be issued for said witness.

 

The Court of Criminal Appeals wrote in Erwin v. State, 729 S.W.2d 709, 713 (Tex. Crim. App.

1987):

Once the State has a subpoena served, Art. 24.03, supra, precludes the defendant from serving the same witness. When the State subpoenas a witness that the defendant wishes to call, the defendant has no choice but to rely on the State's subpoena. If a witness is served and fails to appear, either side is entitled to a writ of attachment.

 

See also Bowser v. State, 816 S.W.2d 518, 520-21 (Tex. App. Corpus Christi 1991, no pet.).

 

Therefore, Appellant could easily have cured his complaint about the absence of the subpoenaed physician by simply requesting a writ of attachment. In his brief, Appellant does not claim that he ever made such a request.

In sum, Appellant's Sixth Amendment confrontation right was not abridged by the State's failure to call the examining physician to testify since his report was admissible under a well-established exception to the hearsay rule. Furthermore, Appellant could have asked for a writ of attachment for the physician, which he failed to do.

Appellant's second point of error is overruled.

By his third point of error, Appellant contends that the trial court erred in "allowing the State to go after the Appellant over the shoulder of Defense Counsel."

Appellant asserts the trial court erred in overruling his objection to the following comments:

[PROSECUTOR]: And I think it's reproachable the way that she's been treated in this courtroom and the insinuations that she had to go through.

[DEFENSE COUNSEL]: I object to that, Judge.

THE COURT: That will be overruled.

[DEFENSE COUNSEL]: My objection, Judge, is she is trying [sic] [striking?] the defendant over the shoulder of the defense lawyer.

THE COURT: That will be overruled.

 

It is improper for the State to strike at the accused over the shoulder of his counsel. However, the comment of the prosecutor in question that the victim had been treated in a "reproachable" manner in the courtroom and had been the subject of "insinuations" is, in our opinion, not erroneous; however, if it did constitute error, such was harmless beyond a reasonable doubt. Tex. R. App. P. 81(b)(2).

Appellant's third point of error is overruled.

In Appellant's fourth and final point of error, he argues that the trial court erred in allowing the State to "continue to shift the burden of proof onto Appellant."

Appellant complains of the following State's jury argument at the guilt stage:

[PROSECUTOR]: There is blood on the bed. There is blood on her shirt. And you can bet that if there was anything about that blood that would have let this man off the hook, that defense attorney would have brought that in here because, you know

[DEFENSE COUNSEL]: Judge, there is a shift in the burden of proof. The State has the burden of proof. In fact, the charge says the defense doesn't have to present any evidence. She's trying to shift the burden.

[PROSECUTOR]: I'll restate that. Ladies and gentlemen, I do have the burden of proof, and it's true he doesn't have to do anything in this courtroom to convince you otherwise. But the funny thing is that when they do decide to start putting on evidence, you as a jury get to decide what evidence it is that they brought you and what evidence it is that they didn't bring you. And in this case they decide to bring you the defendant and his mom and his other brother. What they didn't decide to bring you is the blood test results, which they could have.

[DEFENSE COUNSEL]: Object again, Judge, for the same reason. This is trying to put the burden on the defense instead of on the State where it belongs.

THE COURT; Objection is overruled.

 

Appellant argues that these remarks improperly shifted the burden of proof onto himself. However, as a general rule, the State may comment on the failure of a defendant to call witnesses. McDuffie v. State, 854 S.W.2d 195, 217 (Tex. App. Beaumont 1993, pet. ref'd), citing Montoya v. State, 744 S.W.2d 15, 36 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1227, 108 S. Ct. 2887, 101 L. Ed. 2d 921 (1988). Further, this argument may be accompanied by an inference that the absent testimony would have been material and harmful to the defendant's position. Kerns v. State, 550 S.W.2d 91, 96 (Tex. Crim. App. 1977).

We overrule Appellant's fourth point of error.

Judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

 

Before Justice Cummings,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed June 8, 1994

Do not publish