Gillum v. State

• Decision Date: 01 December 1994
• Docket Number: No. 08-93-00330-CR,08-93-00330-CR
• Citation: 888 S.W.2d 281
• Parties: John Odren GILLUM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 281

888 S.W.2d 281

John Odren GILLUM, Appellant, v. The STATE of Texas, Appellee.

No. 08-93-00330-CR.

Court of Appeals of Texas El Paso.

Dec. 1, 1994.

Discretionary Review Refused March 8, 1995.

Thomas S. Morgan, Midland, for appellant.

Al W. Schorre, Jr., Dist. Atty. of Midland County, Midland, for state.

Before BARAJAS, C.J., and KOEHLER and McCOLLUM, JJ.

OPINION

McCOLLUM, Justice.

John Odren Gillum appeals from a conviction for the offense of murder. Upon a finding of guilt, the jury assessed punishment at sixty-five years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

Factual Summary

Appellant was convicted of the murder of his fiance's fourteen-month-old daughter, Holly Bigler, who died on February 26, 1990. At trial, Appellant admitted that he lost his temper while changing Holly's diaper and shook her in such a manner that her head accidentally struck the floor. He did not know how many times her head struck the floor. The medical evidence revealed that Holly had suffered linear and depressed skull fractures to the back and sides of her skull due to multiple blows of her head either by or against a blunt object. Medical experts testified that the nature of the injuries were such that they normally would expect to see such damage only in a child who had fallen three or four floors, or who had been hit by a car, or who had been injured in a high speed automobile accident. Appellant attacks his conviction by six points of error.

Discussion

In Point of Error No. One, Appellant contends that the trial court erred in admitting evidence which showed that the victim had suffered rectal tears caused by the insertion of a large object into her rectum. Focusing solely upon a portion of Dr. Robert Bux's testimony in which he stated that the tears could possibly be twenty-four hours old, Appellant argues that the evidence constitutes an extraneous offense, namely, aggravated sexual assault. He alleges that the court abused its discretion in admitting the extraneous offense because it was not proven to have been committed by him and because its prejudicial effect outweighs any probative value.

The record reflects that before the first witness was called by the State, the trial court conducted a hearing outside the presence of the jury. ¹ Three witnesses testified at this hearing. Karen Hare, an identification specialist for the City of Midland Police Department, testified and identified State's Exhibit 1, a photograph she had taken in the emergency room, which depicted injuries to the deceased's rectum. Dr. Robert Bux, the medical examiner who performed the autopsy, testified that his examination of the victim revealed that she had suffered rectal tears which would have resulted in bleeding. He identified State's Exhibit 1 as depicting two of the three tears he had described. He concluded that the injuries were non-accidental and occurred within twenty-four hours of the victim's death, and were caused by an object in excess of one-half to three-quarters of an inch in diameter. They were not caused by someone merely wiping or cleaning the area. In his opinion, the injuries to the victim's skull and rectum occurred in the same time frame. ² Dr. Bux later testified before the jury that when he considered all of the evidence, he was of the opinion that the rectal tears most likely occurred in the same assault as the head injuries, or within hours of the fatal injuries.

Pam Bigler, Holly's mother, testified in this same hearing that on February 26, 1990, the date of Holly's death, she changed Holly's diaper sometime between 4:30 and 5 p.m., which was approximately fifteen to twenty minutes before she left for work. Ms. Bigler, when shown a photograph depicting the vaginal and rectal areas of the child as red and discolored, said that those areas were not in that condition when she changed the diaper that afternoon. Although Holly had been suffering from diarrhea and a rash for a few days prior to her death, neither of these conditions were present on February 26. Ms. Bigler said that she had rubbed ointment onto the genital and anal areas for the rash, but she had not inserted any object into Holly's rectum.

Following Ms. Bigler's testimony, the State argued that Dr. Bux's testimony with regard to the rectal tears was admissible because the injuries occurred contemporaneously with the head injuries. Appellant then objected to Dr. Bux's testimony concerning the rectal tears on the ground that it depicted an extraneous offense of sexual abuse not shown to have been committed by him. Following further argument by both parties, the trial court found that the testimony and evidence heard outside the presence of the jury was "res gestae " of the offense and relevant to show Appellant's "culpable mental state" at the time of the charged offense, and overruled Appellant's objection. The court then made the following statement to Appellant's counsel:

[The Court]: Mr. Alvarado, you may have a running objection by--I do not foreclose your opportunity to object each time, but I understand you are objecting to the testimony's admissibility.

Appellant then re-stated his objections to include a complaint that the evidence was not "probative of anything that [Appellant] did" and that there was no proof that Appellant committed the extraneous offense. The trial court again overruled the objections. No further mention was made of a running objection.

Dr. Bux then testified at length before the jury, including the matters testified to outside the presence of the jury. Following Dr. Bux's testimony, two other doctors testified before the jury, namely, Dr. William L. McGavran, III, a neurological surgeon, and Dr. Sudhi Agrawal, who was Holly's pediatrician. Of the two, only Dr. Agrawal testified concerning the rectal tears. Dr. Agrawal treated Holly in the emergency room on February 26, 1990, and she testified at length with regard to their unsuccessful attempts to revive Holly and the extent of her injuries. After Appellant cross-examined Dr. Agrawal regarding her prior treatment of Holly for diarrhea, the State elicited from her, without objection, that Dr. Agrawal discovered the rectal tears upon examining Holly in the emergency room and that there was bruising around the rectum. Based upon the coloration of the bruises, it was her opinion that the bruises were "relatively new" or twenty-four to forty-eight hours old. Consistent with Dr. Bux's opinion, she found it unlikely that a child would inflict such injuries upon herself. In response to Appellant's cross-examination, Dr. Agrawal stated the tears occurred as the result of abnormal penetration.

The hearing held outside the presence of the jury only concerned Appellant's objections with regard to Dr. Bux's testimony. Although Appellant obtained an adverse ruling with regard to the admission of that testimony, he thereafter failed to object to the testimony of Dr. Agrawal. A party must continue to object every time inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991); TEX.R.APP.P. 52(a). Error in the admission of evidence is cured when the same evidence is admitted elsewhere without objection. Ethington, 819 S.W.2d at 858; Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App.1984). To preserve error, Appellant could have: (1) requested a running objection, or (2) objected outside the presence of the jury to all the testimony he deemed objectionable as permitted by TEX.R.APP.P. 52(b). ³ See Ethington, 819 S.W.2d at 858-59; Rawlings v. State, 874 S.W.2d 740, 742 (Tex.App.--Fort Worth 1994, no pet.); Mack v. State, 872 S.W.2d 36, 38 (Tex.App.--Fort Worth 1994, no pet.). We find that Appellant failed to preserve error under either of these alternatives. The trial court's allowance of a running objection covered only the testimony offered outside the presence of the jury. Even though it is doubtful that a running objection may cover the testimony of different witnesses without the necessity for renewal, Appellant did not request that the running objection cover all testimony and evidence on this same subject matter. Consequently, the running objection to the testimony heard outside the presence of the jury did not preserve error with regard to the later testimony of a different witness, Dr. Agrawal. See Goodman v. State, 701 S.W.2d 850, 863 (Tex.Crim.App.1985); see also Ethington, 819 S.W.2d at 859. Further, because Rule 52(b) applies to objections made outside the presence of the jury to "offered" evidence, Appellant failed to preserve error to Dr. Agrawal's testimony which was not offered in that hearing. See Rawlings, 874 S.W.2d at 743 (Rule 52(b) does not come into play until specific evidence is actually offered for admission).

Even had Appellant properly preserved his relevancy objection and his complaint that it was not proven that he committed the extraneous offense, ⁴ we find that the trial court did not abuse its discretion in admitting the testimony. Viewing the evidence in the light most favorable to the court's ruling, the trial court could have concluded that the injuries occurred in the same assault as the fatal head injuries. By definition, the conduct which caused these injuries would not be extraneous or extrinsic to the charged conduct, so TEX.R.CRIM.EVID. 404(b) would be inapplicable to the admission of the evidence. Another view of the evidence permits a conclusion that the rectal tears occurred within hours of the fatal assault, but while Appellant had sole access to Holly that afternoon and evening. Because this assault is closely related in time and interwoven with the fatal attack, the evidence is admissible as "same transaction contextual evidence". ⁵ See Nelson v. State, 864 S.W.2d 496, 498 (Tex.Crim.App.1993); Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App.1993). "Same transaction contextual evidence" is admissible as an exception under ...