Lewis v. State, No. 06-04-00016-CR (TX 11/16/2004)
| Decision Date | 16 November 2004 |
| Docket Number | No. 06-04-00016-CR,06-04-00016-CR |
| Parties | DAMON EARL LEWIS, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
On Appeal from the 8th Judicial District Court, Hopkins County, Texas, Trial Court No. 0216853.
Before MORRISS, C.J., ROSS and CARTER, JJ.
Damon Earl Lewis appeals from his conviction by jury trial of four counts of aggravated sexual assault of a child and one count of indecency with a child. The jury assessed his punishment at ninety-nine years' imprisonment for each count of the aggravated sexual assault and twenty years' imprisonment for the indecency with a child. The trial court sentenced Lewis consistent with the jury's verdict, with the sentences to run concurrently. Multiple indictments alleging aggravated sexual assault and indecency with a child, including the four indictments giving rise to the four appeals, were tried together. Four appeals are presently pending before this Court. This appeal concerns a conviction for aggravated sexual assault. Lewis raises identical issues and makes identical arguments in all four appeals.
Lewis raises five issues on appeal. The issues are: (1) did the trial court err in admitting evidence Lewis failed to take a polygraph test he had previously agreed to take, (2) did the trial court err in admitting a letter handwritten by Lewis, (3) does Article 38.072 of the Texas Code of Criminal Procedure authorize the use of a videotaped interview as an outcry statement, (4) was Lewis denied the right to effective assistance of counsel, and (5) is the evidence legally and factually sufficient? We affirm the judgment of the trial court.
Although two child victims were alleged by the State, all of the convictions were for charges filed concerning C.C. Sheri Cook, C.C.'s mother, testified that Lewis had been her boyfriend since C.C. was three or four and that C.C. considered Lewis her father. C.C., who was thirteen at the time of trial, testified Lewis had molested her since she was nine years old by reaching underneath her clothes and penetrating her genetalia with his finger (constituting the four counts of aggravated sexual assault). Although C.C. testified that Lewis did not always touch her breasts, she testified that Lewis did fondle her breasts on one occasion (constituting the count for indecency with a child).
In his first point of error, Lewis argues the trial court erred by allowing the State to elicit testimony that Lewis had agreed to take a polygraph, but never took one. Jim Wright, the chief investigator with the Hopkins County Sheriff's Office, testified Lewis was offered a polygraph and agreed to take one. However, Lewis failed to appear for the scheduled test. Wright testified Lewis told him he did not have a vehicle to drive to the test location. The State argued that Lewis's failure to take the polygraph was evidence of "consciousness of guilt." Lewis contends the admission of Wright's testimony constitutes reversible error. On appeal, the State argues error was not preserved.
Generally, in order to preserve a complaint for appellate review, the record must show (1) that the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of the complaint and (2) that the trial court ruled adversely. Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999); see Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). Complaints concerning the admission of polygraph evidence are not exempt from the requirement that an appellant must preserve error.1
No objection was made concerning the introduction of evidence that Lewis agreed to take a polygraph, but then failed to take the test. To the contrary, Lewis's attorney stated, during the bench conference on the issue, which was requested by the State, that he agreed with the State the evidence was probably admissible. Since error was not preserved for appellate review, we overrule the first point of error.
Lewis's second point of error argues that the trial court erred in admitting the handwritten letter. Lewis contends the letter is hearsay and the State did not prove that an exception to the hearsay rule applies. The trial court overruled Lewis's objection without a response from the State.
A trial court's decision on the admissibility of evidence is reviewed for an abuse of discretion. Bee v. State, 974 S.W.2d 184, 187 (Tex. App.-San Antonio 1998, no pet.). A trial court abuses its discretion when its decision falls outside "the zone of reasonable disagreement." Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate judge does not demonstrate such an abuse. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). Although the State did not specify a basis for the letter's admissibility, we must sustain the trial court's decision if it is correct under any theory of law. "[I]f the decision of the trial court is correct on any theory of law which finds support in the evidence it will be sustained." Bee, 974 S.W.2d at 190; see McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997).
The letter at issue appears to be a suicide note from Lewis to Cook, his girlfriend, which she found in her house after Lewis had moved out. Cook testified that the letter, which is signed "Earl," was written in Lewis's handwriting. In the letter, Lewis implies he must commit suicide to keep himself from hurting anyone else. Lewis wrote: "by the time you find this letter you would have ben [sic] told of my death" and stated "so you know in your hurt [sic] that I have no coice [sic] left to me but to do what I must to stop that dark side from ever comen [sic] out of me." However, Lewis never explicitly admits the assault. Lewis states,
I could never consiley [sic] do something like that to my daughter . . . if I did do this to my baby girl I must have a sickness & evil in me that must be stoped [sic] befor [sic] it can hurt aneyone [sic] ealis [sic] I love . . . the only thing I can think of is I could not have knowed [sic] what I was doing if I did this & that relley [sic] scars [sic] me . . . could I have another side of me that I don't know about, a part of me that could do something this horable [sic] to my daughter, I can not bear the thouht [sic] of liven [sic] with it if I do . . . .
The State argues the letter is admissible as an admission by a party.2 Under Rule 801(e)(2)(A), a statement made by a party and offered against the party is not hearsay and is admissible without corroboration. TEX. R. EVID. 801(e)(2)(A); Serrano v. State, 936 S.W.2d 387, 392 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd); see Bingham v. State, 987 S.W.2d 54, 56 n.2 (Tex. Crim. App. 1999). A letter containing facts tending to show guilt is admissible as an admission. Jacobs, 951 S.W.2d at 901 ().
The question remains, though, as to whether the letter qualifies as a party admission. Rule 801(e)(2)(A) does not require a statement to admit an element of an offense in order to qualify as an admission. Perkins v. State, 902 S.W.2d 88, 98-99 (Tex. App.-El Paso, pet. ref'd), supplemented by, 905 S.W.2d 452 (Tex. App.-El Paso 1995, pet. ref'd). "An admission is an acknowledgment by the accused of facts that tend to prove his guilt." Jacobs, 951 S.W.2d at 901. Whether the letter admitted facts which tend to show the guilt of the accused falls within the zone of reasonable disagreement. As such, we cannot conclude the trial court abused its discretion in admitting the letter. We overrule the second point of error.
In his third point of error, Lewis argues the trial court erred in admitting a videotape of an interview of C.C. by Kathy Smedley, a sexual assault nurse examiner. At the trial, defense counsel objected that the videotape did not qualify under either Article 38.071 or Article 38.072 of the Texas Code of Criminal Procedure, which governs the admission of videotaped interviews of children unavailable to testify.3 When asked by the trial court if the videotape was being introduced under Article 38.071 or under Article 38.072, the State informed the trial court that the child would testify (she did) and that it intended to introduce a videotaped interview as an "outcry" statement under Article 38.072.4 The objections of defense counsel were overruled.
The videotape containing the interview of C.C. was hearsay. It was therefore admissible only if some exception applied. At trial, the only suggested authority for such admission lies in Article 38.072. However, on appeal the State argues the trial court properly admitted the videotape as a statement for the purpose of medical treatment.
Hearsay is not admissible except as provided by statute or by the Texas Rules of Evidence. TEX. R. EVID. 802; Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990). Article 38.072 of the Texas Code of Criminal Procedure creates an exception to the hearsay rule for statements of child abuse victims if all the requisite conditions are met. Josey v. State, 97 S.W.3d 687, 692 (Tex. App.-Texarkana 2003, no pet.). We note that the trial court has broad discretion...
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