Brian Keith Simmons v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-01-364-CR

BRIAN KEITH SIMMONS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # F34377

O P I N I O N

A jury convicted Brian Simmons on two counts of indecency with a child and sentenced him to ten years in prison and a $10,000 fine for each count. Simmons claims in three points that: (1) the trial court erred in allowing the State to cross examine Simmons at the punishment phase regarding an indictment which never resulted in a final conviction, (2) the State s closing argument at the guilt-innocense phase was improper, and (3) the trial court erred in admitting outcry testimony. We overrule the points and affirm the judgment.

BACKGROUND

Simmons was K.E. s stepfather. K.E. had a migraine headache. Simmons offered to rub K.E. s temples while K.E. lay on the couch. Simmons then committed the offense. The following day, K.E. told her mother what happened. Some time later, K.E. also told her grandmother what happened.

Approximately one year later, K.E. went to live with her father and stepmother, Lonnie Eaves and Christina Bolen. That same day, K.E. told Bolen what happened. K.E. later reported the offense to law enforcement authorities.

PERTINENT AUTHORITIES

To preserve error for appellate review, there must be a timely objection specifically stating the legal basis for that objection. Tex. R. App. P. 33.1(a); Rhodes v. State, 934 S.W.2d 113, 119-20 (Tex. Crim. App. 1996). A withdrawn objection is not sufficient to preserve error for appellate review. Lackey v. State, 638 S.W.2d 439, 444 (Tex. Crim. App. 1982). Where a ground of error on appeal does not comport with the objection made at trial, then the ground of error presents nothing for review. Ibarra v. State, 11 S.W.3d 189, 196-97 (Tex. Crim. App. 1999); Willis v. State, 626 S.W.2d 500, 504 (Tex. Crim. App. 1979).

EXTRANEOUS OFFENSE ADMITTED DURING PUNISHMENT

Simmons claims in his first point that the trial court abused its discretion by allowing the State to cross examine Simmons about a 1993 indictment for aggravated sexual assault of his daughter which never resulted in a conviction. At trial, Simmons s counsel objected to the indictment s admissibility because it did not result in a final conviction. However, on appeal, Simmons s counsel complains that he did not receive notice of the State s intent to introduce the unadjudicated offense as required by article 37.07(g) of the Code of Criminal Procedure. // Tex. Code Crim. Proc. Ann. art. 37.07(g) (Vernon Supp. 2003). The State argues that an objection for admitting an unadjudicated offense does not comport with a complaint on appeal regarding lack of notice. Ibarra, 11 S.W.3d at 196-97; Willis, 626 S.W.2d at 504. Therefore Simmons has failed to preserve the complaint. We agree.

Accordingly, we overrule Simmons s first point.

IMPROPER CLOSING ARGUMENT

Simmons claims in his second point that the State s jury argument was improper because the State s remarks were disparaging of opposing counsel. Comments which attempt to cast aspersions on the character of defense counsel and necessarily strike over counsel s shoulders at the defendant are not within the zone of proper jury argument. Nevels v. State, 954 S.W.2d 154, 158 (Tex. App. Waco 1997, pet. ref d). However, Simmons s counsel failed to object during the jury argument. The State argues that because Simmons s counsel failed to object, he has failed to preserve a complaint about the argument. Tex. R. App. P. 33.1(a); Rhodes, 934 S.W.2d at 119-20. We agree.

Accordingly, we overrule Simmons s second point.

ADMISSION OF OUTCRY TESTIMONY

Simmons claims in his third point that the trial court abused its discretion by admitting Bolen s outcry testimony under article 38.072 of the Code of Criminal Procedure because (1) K.E. told at least one other person about the offense before talking to Bolen, (2) the trial court did not hold a hearing as required by the statute, and (3) the trial court did not make findings of fact as required by the statute. Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2003).

At trial, Simmons s counsel asserted an objection on the basis of hearsay. The State explained that Bolen s testimony qualified as outcry testimony under the hearsay exception, supported by article 38.072, and notice had been given in compliance with the statute. Simmons s counsel withdrew his objection and asked that the statement be read to the jury. Simmons s counsel made no further objections. Because Simmons s counsel withdrew his objection, he has not preserved the complaint. Lackey, 638 S.W.2d at 444.

Accordingly, we overrule Simmons s third point.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed March 26, 2003

Do not publish

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