JUAN GREGORIO BRIONES v. THE STATE OF TEXAS--Appeal from 156th District Court of Bee County

NUMBER 13-01-152-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI-EDINBURG

JUAN GREGORIO BRIONES, Appellant,

v.

THE STATE OF TEXAS , Appellee.

On appeal from the 156th District Court

of Bee County, Texas.

OPINION

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Chief Justice Rogelio Valdez

Appellant, Juan Gregorio Briones, appeals from a conviction of prohibited sexual conduct, a third degree felony. Tex. Pen. Code Ann. 25.02(a)(2) (Vernon 2000). The jury assessed punishment at ten years confinement in the Texas Department of Criminal Justice-Institutional Division, and a fine of $10,000.00. Through one issue, appellant argues the trial court erred in denying his motion for mistrial. We affirm. (1)

Facts and Procedural History

On December 26, 1997, appellant, who was married to Irma Briones, engaged in incestuous relations with his then-nineteen-year-old step-daughter Claudia Cardenas Castro. Appellant was charged with prohibited sexual conduct under section 25.02(a)(2) of the penal code which prohibits sexual intercourse between a step-parent and step-child. Id.

Appellant's attorney filed a pre-trial motion in limine to exclude references to extraneous offenses, which included two pending sexual assault charges, during the guilt-innocence part of the trial. The trial court granted his motion in limine.

At trial, Ms. Castro testified that she and appellant had sexual relations on December 26, 1997. As a result of the encounter, a child was conceived. Appellant's counsel objected to Ms. Castro's testimony because he believed the State was going to ask about consent. Appellant's counsel argued that consent is not an element of incest and that any reference to consent improperly referenced the pending extraneous rape charges that were barred by the motion in limine. The State responded that Ms. Castro also could have been charged with prohibited sexual conduct under section 25.02 (a)(2) of the penal code. Id. The State wanted to introduce the evidence of lack of consent to show why Ms. Castro was not charged with prohibited sexual conduct. The State did not intend to reference the appellant's extraneous offenses. The trial court overruled appellant's two objections, which were based on Texas Rule of Evidence 403.

When the State asked Ms. Castro if she had sexual intercourse with the appellant Ms. Castro testified, "[h]e made me have sex with him." The trial court overruled appellant's counsel's renewed relevancy objection. During cross-examination, Ms. Castro testified that she had non consensual sexual relations with appellant after appellant's counsel asked Ms. Castro if she willingly had sex with appellant. Appellant's counsel did not object to this testimony until after the State conducted the redirect examination. Appellant's counsel then made an oral motion for mistrial, based on the testimony regarding consent. The trial court denied the motion.

Before the conclusion of the trial, appellant's attorney made two more references to consent. First, he argued during closing arguments of the guilt-innocence phase of trial that the jury should acquit appellant because Ms. Castro consented to the sexual relationship. Then, during the punishment phase of trial, he argued appellant should get probation because Ms. Castro consented to the sexual relationship.

The jury found appellant guilty, sentenced him to ten years imprisonment, and imposed a $10,000.00 fine. Appellant appeals the trial court's denial of the motion for mistrial.

Standard of Review

We review a denial of a motion for mistrial under the abuse-of-discretion standard.Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding principles and rules. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). We sustain the trial court's decision if it is correct on any applicable theory of law. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Benitez v. State, 5 S.W.3d 915, 918 (Tex. App.-Amarillo 1999, pet. ref'd) (referring specifically to denial of motion for mistrial).

Citing Schoenfeldt v. State, 30 Tex. Ct. App. 695, 18 S.W. 640 (1892), the appellant claims the issue of consent is irrelevant to the offense of prohibited sexual conduct. He argues that his step-daughter's testimony-that she did not consent to sexual intercourse with appellant-was unfairly prejudicial and confused the issues because it focused on the extraneous offense of sexual assault and took attention away from the charged offense of prohibited sexual conduct.

If a defendant objects to the admission of evidence but the same evidence is subsequently introduced from another source without objection, the defendant waives his earlier objection. Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996); Hughes v. State, 878 S.W.2d 142, 155 (Tex. Crim. App. 1993). As a result, any error that might have occurred in the original admission is waived when the appellant fails to object to subsequent admissions of the same evidence. Id.

In the present case, appellant's counsel made several references to consent that conflicted with his motion in limine and his oral motion for a mistrial. First, appellant's counsel asked Ms. Castro during cross-examination if she willingly had sex with appellant. Then, appellant's counsel argued during closing arguments of the guilt-innocense phase of trial that appellant should be acquitted because Ms. Castro consented to the sexual relations. Finally, during the punishment phase of trial, he argued appellant should get probation because Ms. Castro consented to the sexual relations with appellant.

As a result of these subsequent references by appellant's counsel, this Court finds that any error that might have occurred in the original admission was waived. Id. See also Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App.1993) (stating "[t]he general rule is that error regarding improperly admitted evidence is waived if that same evidence is brought in later by the defendant or by the State without objection.").

Accordingly, appellant's sole issue on appeal is overruled. We affirm the judgment of the trial court.

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 27 day of August, 2003.

1. The Texas Rules of Appellate Procedure were amended effective January 1, 2003 to require the trial court to enter a certification of defendant's right to appeal. See Tex. R. App. P. 25.2(a)(2). Accordingly, we abated this appeal on July 24, 2003 and ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of appellant's right to appeal. See id. We received a supplemental record on August 4, 2003 that includes the trial court's certification of appellant's right of appeal. We now turn to the merits of appellant's case.