Lane v. State, 14-04-00412-CR.

• Decision Date: 15 September 2005
• Docket Number: No. 14-04-00412-CR.,No. 14-04-00413-CR.,14-04-00412-CR.,14-04-00413-CR.
• Parties: Michael LANE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

174 S.W.3d 376

Michael LANE, Appellant, v. The STATE of Texas, Appellee.

No. 14-04-00412-CR.

No. 14-04-00413-CR.

Court of Appeals of Texas, Houston (14th Dist.).

September 15, 2005.

COPYRIGHT MATERIAL OMITTED

Henry L. Burkholder, III, Houston, for appellant.

Alan Curry, Houston, for appellee.

Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.

OPINION

WANDA McKEE FOWLER, Justice.

Michael Lane appeals from two aggravated sexual assault convictions. After a jury convicted him in two separate cause numbers and found the enhancement paragraph to be true, he was sentenced to life imprisonment. Appellant asserts the trial court erred by failing to grant his request for separate jury trials, denying his motion to suppress, and admitting hearsay testimony under the excited utterance exception. Appellant also challenges the legal and factual sufficiency of the evidence to support his convictions. We affirm.

I. Factual and Procedural Background

In late 2002, Ms. Ferrell, the complainant's mother, planned to leave the complainant ("A.F.") and another, younger daughter at appellant's home for the weekend.¹ A.F. had already left for appellant's home when the younger daughter began crying, pleading that her mother not make her go to appellant's house. When Ms. Ferrell questioned this response, the younger daughter revealed that she had seen appellant on top of A.F., who was naked at the time. She also stated that "bad things had happened to her sister." Ms. Ferrell, very concerned, called appellant's home, but appellant's girlfriend was already on the way to Ms. Ferrell's home with A.F. When A.F. returned home, she confirmed the heinous acts, saying that appellant forced her to engage in oral sex and vaginal intercourse with him. Ms. Ferrell called the police in Bryan, Texas, where she was living with her daughters at the time, and the Bryan Police Department contacted the Houston Police Department. Officer Valenta of the Houston Police Department then executed a search warrant for appellant's apartment and recovered, among other things, several photographs. The photographs show the unclothed A.F. alone, and they show appellant engaged in various sexual acts with A.F. According to A.F.'s mother, the photographs are of A.F. when she was between six and ten years old.

Appellant was arrested and the State charged him with aggravated sexual assault, enhanced by a prior felony conviction for the same crime. In cause number 933,046 (appellate cause number 14-04-00412-CR), the indictment charged one type of sexual assault:

Michael Lane ... on or about October 27, 2002, did then and there unlawfully, intentionally and knowingly cause the sexual organ of [complainant], a person younger than fourteen years of age and not the spouse of the Defendant, to contact the sexual organ of Michael Lane.... Before the commission of the offense alleged above ... the Defendant was finally convicted of the felony of aggravated sexual assault.

In cause number 964,815 (appellate cause number 14-04-00413-CR), the indictment charged a second type of sexual assault:

Michael Lane ... on or about September 27, 2002, did then and there unlawfully, intentionally and knowingly cause the penetration of the mouth of [complainant], a person younger than fourteen years of age and not the spouse of the Defendant, with the sexual organ of the Defendant. Before the commission of the offense alleged above ... Defendant was finally convicted of the felony of aggravated sexual assault.

The jury found appellant guilty in both cause numbers. Appellant pleaded true to the enhancement paragraph² and the jury sentenced him to life imprisonment.

On appeal, appellant raises the same initial seven points of error in both cause numbers. First, appellant contends the trial court erred by failing to grant his pretrial request for separate jury trials in each cause number. Second, appellant contends the trial court erred by denying his motion to suppress, in which appellant urged the trial court to exclude the items seized pursuant to the search warrant for his apartment. Third, appellant asserts the trial court erred in admitting hearsay testimony over his objection.³ In his fourth and fifth issues, appellant argues the evidence is legally and factually insufficient because A.F. was not credible. In his sixth and seventh issues, appellant contends the evidence is legally and factually insufficient to show the State had jurisdiction because the State did not prove that any element of the offense took place within Harris County. Appellant also raises two additional points of error in cause number 14-04-00412-CR. In these final two issues, appellant contends the evidence is legally and factually insufficient because the State did not prove appellant caused A.F.'s sexual organ to contact his own. With the exception of the challenges to the State's jurisdiction, which we address last, we address each of appellant's contentions in turn.

II. Analysis

A. Separate jury trials

Initially, appellant urges this court to find that the trial court erred by overruling appellant's request for separate jury trials and that this error violated appellant's state constitutional right to a trial by jury. See TEX. CONST. art. I, § 10 (providing for right to trial by jury). As mentioned above, the State charged appellant in two indictments and cause numbers with aggravated sexual assault upon A.F., the first for causing A.F.'s sexual organ to contact appellant's sexual organ, and the second for causing appellant's sexual organ to penetrate A.F.'s mouth. The Texas Penal Code provides that "a defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode." TEX. PENAL CODE § 3.02(a). The Code defines a criminal episode as the commission of two or more offenses if "the offenses are the repeated commission of the same or similar offenses." TEX. PENAL CODE § 3.01(2).

Generally, a defendant is entitled to severance if he timely objects to the joinder. Salazar v. State, 127 S.W.3d 355, 364 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (citing TEX. PENAL CODE § 3.02, § 3.04(a)) ("However, a defendant generally has the right to demand that cases consolidated under section 3.02 be severed for trial."); see also Wedlow v. State, 807 S.W.2d 847, 851 (Tex.App.-Dallas 1991, pet. ref'd) ("[I]f a defendant timely objects to the trial of multiple indictments in a single trial, he is entitled to severance.") (citing Ex parte Quintanilla, 151 Tex.Crim. 328, 207 S.W.2d 377, 378 (1947)). However, the defendant's right to severance is limited by section 3.04(c) of the Texas Penal Code. Salazar, 127 S.W.3d at 364 (citing TEX. PENAL CODE § 3.04(c)). Section 3.04(c) provides that the defendant's right to severance does not apply to offenses joined pursuant to section 3.03(b)(2) unless the court determines the defendant or the state would be unfairly prejudiced by the joinder. Id. (citing TEX. PENAL CODE § 3.04(c), § 3.03(b)(2)); see also Matthews v. State, 152 S.W.3d 723, 730 (Tex.App.-Tyler 2004, no pet.) ("A defendant's right to sever two or more cases that have been consolidated or joined for trial does not apply to a prosecution for ... aggravated sexual assault of a victim under seventeen years of age unless the court determines that the defendant or the state would be unfairly prejudiced by a joinder of offenses.") (citing Tex. Penal Code § 3.04(c)). Section 3.03(b)(2), in turn, applies to certain sexual offenses against victims younger than seventeen years old, such as those in appellant's case. TEX. PENAL CODE § 3.03(b)(2)(A).

Therefore, when the State joins certain sexual offenses against victims under seventeen years old, a defendant's right to severance is limited and severance is not required in the absence of unfair prejudice. See id. §§ 3.03(b)(2)(A), 3.04(c). Appellant claims he demonstrated that he would be unfairly prejudiced by the joinder, but the record does not support this claim. Before trial, appellant objected to the State's joinder of the two offenses. However, appellant never explained, at the trial court level nor on appeal, how the joinder would cause him unfair prejudice. Because appellant did not show that he would be unfairly prejudiced by the joinder of these two offenses in a single trial, we conclude the trial court did not err in refusing appellant's request for severance and overrule his first point of error. See id. § 3.04(c) (providing for a right of severance only when "the defendant or the state would be unfairly prejudiced by a joinder of offenses.").⁴

B. Motion to suppress

In his second point of error, appellant contends the trial court erred by failing to grant his motion to suppress; he alleges the affidavit supporting the search warrant for his apartment "failed to state sufficient facts constituting probable cause." However, the motion to suppress did not contain this ground as a basis for suppressing the evidence. Instead, the motion urged the trial court to exclude all evidence seized in the search of appellant's apartment because the search violated article 18.06 of the Texas Code of Criminal Procedure.⁵ See TEX.CODE CRIM. PROC. art. 18.10 (providing proper procedure for execution of search warrants). Similarly, when appellant argued his motion, he never raised the alleged insufficiency of the affidavit to establish probable cause for the search warrant. Instead, appellant contended the search exceeded the search warrant's scope.

To preserve error for appellate review, a party must object in a timely and specific manner. TEX.R.APP. P. 52; Cornealius v. State, 870 S.W.2d 169, 174 (Tex.App.-Houston [14th Dist.] 1994), aff'd, 900 S.W.2d 731 (Tex.Crim.App.1995) (citing TEX.R.APP. P. 52; Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991) (en banc)). Nothing is preserved for appellate review if the issue raised on appeal does not comport with the objection made at trial. Corn...