Jefferson M. Moore, Jr. v. The State of Texas--Appeal from 7th District Court of Smith County

NO. 12-06-00293-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JEFFERSON M. MOORE, JR., APPEAL FROM THE 7TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Jefferson Moore, Jr. appeals from his conviction for aggravated sexual assault of a child. In three issues, he argues that the trial court should have granted his motion for a mistrial and that the trial court should not have admitted certain evidence. We affirm.

Background

Because Appellant does not contest the sufficiency of the evidence, we will briefly state the facts that support the conviction. Appellant ran a day care center in Dogwood City, outside of Tyler, Texas. The complaining witness is a girl who was eight years old at the time of trial and had been a student at Appellant s center. She reported that Appellant had penetrated her sexual organ with his finger and penetrated her anus with his penis. She was examined by a nurse. The examination revealed an abrasion on her anus consistent with the report.

Appellant was indicted for the felony offense of aggravated sexual assault of a child. He pleaded not guilty, and a jury trial was held. The jury found him guilty. After a separate punishment hearing, the jury assessed punishment at life imprisonment. This appeal followed.

Motion for Mistrial

In his first issue, Appellant argues that the trial court should have granted his motion for a mistrial. While his attorney was talking with a potential juror during his voir dire examination, Appellant turned to the trial court judge and told him that he felt faint. The trial court summoned the lawyers to the bench and then excused the potential jurors. Appellant s counsel told the court that he heard jurors laughing at his client and belittling whatever it was that happened to him and moved for a mistrial. The court stated that it was watching the jurors as they left the courtroom, and that its observation was different.1 The court took the matter under advisement. The next morning, following the arguments of counsel, the trial court overruled Appellant s motion for a mistrial.

We review a trial court s ruling on a motion for a mistrial for an abuse of discretion. See Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004) (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). Appellant now asks this court to remand this matter for an evidentiary hearing to determine if any of the jurors made disparaging comments about him and whether the comments caused bias or prejudice. This request is in the nature of an admission that no such evidence is in the record. Appellant was given an opportunity to offer evidence the following morning and never asked the trial court to gather or receive the kind of evidence Appellant now wishes to have in the record. Nor was this type of evidence offered in a motion for new trial. In his reply brief, Appellant states that the true issue is whether the trial court erred in failing altogether to investigate the alleged misconduct. Appellant never requested this relief from the trial court. The trial court would have been within its rights to inquire of the potential jurors about what they saw or said, but we are not convinced that it was required to do so.

The trial court observed the incident and took careful measures to protect Appellant when he indicated that he had become ill. The trial court watched the jurors as they left the courtroom and did not hear or see any discussions that caused it concern. In fact, the trial court stated that it had escorted the jurors out and its impression was that the potential jurors appeared to be genuinely concerned for Appellant. Appellant has not shown that the trial court abused its discretion. We overrule Appellant s first issue.

Videotaped Statement of the Complaining Witness

In his second issue, Appellant argues that the trial court erred when it admitted the hearsay statements of the complaining witness. Specifically, he argues that a videotaped statement of the complaining witness should not have been admitted because he was denied his right to cross examine her and because the trial court did not follow the proper procedures for the admission of hearsay statements of child victims of sexual assault.

Facts

The eight year old complaining witness testified. During her direct testimony, she asked to take a break. Shortly after her testimony resumed, the witness lost her composure, and the trial court determined that she was not able to continue. Because the witness could not continue, the trial court suggested that Appellant be permitted to cross examine her via closed circuit television or that the parties conduct a videotaped deposition. A videotaped deposition was settled upon and was to occur the following morning. In the interim, the State offered a videotaped statement of the complaining witness. Appellant did not object.

The following morning the parties attempted to take the complaining witness s deposition. She was examined on direct examination, and Appellant s counsel had begun to cross examine her. During the cross examination, or during a break, the witness lost her composure and was unable to regain it. The trial court found her to be unavailable and, with the agreement of the parties, ordered that the incomplete deposition not be admitted.

Analysis

Appellant did not object when the videotape was admitted. To preserve a complaint for appeal, a defendant must object, state the grounds for the objection with sufficient specificity, and obtain an adverse ruling. Tex. R. App. P. 33.1 (a)(1)(A); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Because of the unusual factual scenario presented, we agree with Appellant that his failure to object when the taped interview was offered did not necessarily waive the present complaints. At the time the tape was offered, Appellant anticipated that the complaining witness would be available for cross examination the following morning.

While conducting the videotaped deposition, it became clear to the parties that the witness was unlikely to be able to continue. Confronting this possibility, the trial court asked Appellant s counsel if he had sufficient time to consult with his client and asked for any proposals on the Defense side. Counsel said he had had enough time, and the following colloquy occurred:

[Appellant s Counsel]: No, except that based on [the prosecutor s report] to the Court about [the complaining witness s] emotional condition, if you re inclined to exclude her video testimony [the deposition] then I concur with that. That s what I d like for you to do.

The Court: In other words, you, the Defense, would not seek to have me show the jury what we have been able to get; it s either finish with her, which we re not going to be able to do, or show them nothing?

[Appellant s Counsel]: Correct, because I haven t finished my cross examination.

The court then found the witness to be unavailable and recited that it had previously admitted the oral statement, the videotaped statement, of the complaining witness. Counsel had discussed the fact that he had been unable to complete his cross examination of the complaining witness, and the present Confrontation Clause complaint was ripe at that point. See Johnson v. State, 878 S.W.2d 164, 167 68 (Tex. Crim. App. 1994)( An objection is timely if it is raised as soon as the ground of objection becomes apparent . . . that is, as soon as the defense knows or should know that an error has occurred. ); Sierra v. State, 482 S.W.2d 259, 262 63 (Tex. Crim. App. 1972). Furthermore, any trial court error in the application of Texas Code of Criminal Procedure, Articles 38.071 and 38.072 was ripe. Appellant did not raise an objection on either basis. The only relief Appellant sought was the exclusion of the partially completed videotaped deposition. That relief was granted. Appellant s failure to raise the present complaints when it was clear that the witness would not be available for cross examination waived these complaints.2 We overrule Appellant s second issue.

Extraneous Misconduct

In his third issue, Appellant argues that the trial court erred in admitting the portions of the videotaped interview of the complaining witness where she said that Appellant sexually assaulted another girl. Appellant argues that the statements should not have been allowed since he was not permitted to cross examine the other girl because she did not testify and that the evidence was not admissible under Texas Rule of Evidence 404(b).

Appellant s counsel stated that he did not object when the videotape was first offered. However, counsel did object to the portions of the videotape, based on Rule 404, while it was playing. The trial court overruled those objections. Because Appellant did not object on the grounds that he was unable to cross examine the other girl, that complaint is waived. See Tex. R. App. P. 33.1(a)(1)(A).

Any error in the trial court s Rule 404 ruling is harmless because Appellant failed to object to other instances of testimony about the sexual assault of the other girl. After the videotape had been played, the detective testified that the complaining witness said the same thing (a sexual assault) had happened to the other girl. Appellant did not object. The State offered an audiotape of an interview of the other girl in which she described Appellant s sexual assault on her. Appellant s counsel stated that he had no objection to that tape.3

Assuming that Appellant s Rule 404 objection was timely, and even if it was error to admit these portions of the videotape, both notions the State disagrees with, any error is harmless because Appellant did not object when the evidence was offered in another form. See Saldano v. State, No. AP-72,556, 2007 Tex. Crim. App. LEXIS 698, at *58 59 (Tex. Crim. App. June 6, 2007); Leday v. State, 983 S.W.2d 713, 717 19 (Tex. Crim. App. 1998). We overrule Appellant s third issue.

Disposition

Having overruled Appellant s three issues, we affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered September 5, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 When discussing the matter the trial court said the following:

Well, there was a lot of discussion as the panel was leaving as I had to usher them out. I did not see or observe anything along the lines of what you just said you observed. I did see a lot of people talking. I saw a lot of prospective jurors looking back up here. I think, at least the ones I observed, had a serious concern of how [sic] [Appellant] was doing. I didn t see any laughing or pointing I didn t hear any of the comments that you ve indicated that you heard.

2 In one sentence in his reply brief, Appellant asserts that his Confrontation Clause claim can be reviewed under a plain error standard. We presume Appellant is claiming that any error is structural or fundamental. See, e.g., Garrett v. State, 220 S.W.3d 926, 931 (Tex. Crim. App. 2007); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). As Appellant candidly recognizes, Texas courts have found Confrontation Clause claims to be waivable. See Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000); Deener v. State, 214 S.W.3d 522, 527 28 (Tex. App. Dallas 2006, pet. filed); Bunton v. State, 136 S.W.3d 355, 368 69 (Tex. App. Austin 2004, pet. ref d); Vinson v. State, 221 S.W.3d 256, 261 (Tex. App. Houston [1st Dist.] 2006, pet. granted); see also Mallory v. State, 752 S.W.2d 566, 569 (Tex. Crim. App. 1988) ( Although the right of confrontation is vital to an ordered criminal justice system and of constitutional magnitude, it is none the less a trial right. ). Appellant provides no authority, and we have not found any, to suggest that the right to confrontation cannot be waived and that this complaint is amenable to a structural or fundamental error analysis. C.f. Moore v. State, 935 S.W.2d 124, 130 (Tex. Crim. App. 1996) (admission of hearsay not subject to fundamental error analysis); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (any error in admission of videotape waived by lack of objection).

3 In a hearing just before the tape was offered, counsel did object to the tape on the grounds that the girl being interviewed mentioned an assault on yet another young girl. He did not object on the grounds that the tape contained information about the assault on the girl being interviewed.