Sperling v. State
| Decision Date | 09 April 1996 |
| Docket Number | No. 07-95-0100-CR,07-95-0100-CR |
| Parties | Kyle Mitchell SPERLING, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Robert C. Heald, Lubbock and Charles P. Bubany (on appeal only), Lubbock, for appellant.
William C. Sowder, Criminal District Attorney, Michael West, Assistant Criminal District Attorney, Lubbock, for appellee.
Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
In a jury trial, appellant Kyle Mitchell Sperling pleaded not guilty to, but was found guilty of, the offense of aggravated sexual assault, for which the jury assessed punishment at 25 years confinement. By this appeal, appellant presents a four-point attack on his conviction, contending that the trial court committed reversible error in making certain evidentiary rulings and in denying his motion to sever counts in the indictment against him. For the reasons to be expressed, we will overrule the points and affirm the judgment.
The jury's guilty verdict was consistent with the indictment charging that during the early morning hours of 2 July 1993, appellant sexually assaulted his seven-year-old daughter N____ S____, the child-victim, and alleging three methods of commission of the offense. Because appellant does not challenge the sufficiency of the evidence to support his conviction, further recitation of the facts is not requisite to our disposition of the appeal.
By his first-point contention, appellant maintains that the trial court erred in denying his motion for mistrial "after the jury had been advised that [he] had been in jail for another offense, thus permitting the jury to infer guilt from other crimes" in violation of rule 404(b) of the Texas Rules of Criminal Evidence. We disagree.
During the State's direct examination of Roxanne Emery, a cousin of the child-victim who was living with the child-victim and her family at the time of the offense, the following exchange transpired:
The trial court sustained the objection and, at appellant's request, instructed the jury to disregard Roxanne's response. However, as previously noted, appellant's ensuing motion for a mistrial was denied.
Reference by a witness to a defendant's prior incarceration is improper because it violates the longstanding rule of evidence which prohibits the introduction of collateral offenses and transactions. See Tex.R.Crim.Evid. 404(b); Tennard v. State, 802 S.W.2d 678, 685 (Tex.Cr.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991). A defendant is not to be tried for collateral crimes or for generally being a criminal. Nobles v. State, 843 S.W.2d 503, 514 (Tex.Cr.App.1992). Nevertheless a witness's inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard. Kipp v. State, 876 S.W.2d 330, 339 (Tex.Cr.App.1994).
In Tennard, a witness for the State, upon being asked by defense counsel during cross-examination when he first saw the defendant, answered, "When he first got out of the penitentiary." On the defendant's petition for discretionary review, the Court of Criminal Appeals determined the answer, which is remarkably similar to the one at issue in this case, was cured when the trial court promptly instructed the jury to disregard the witness's answer. 802 S.W.2d at 685. Likewise, we conclude that the trial court's prompt instruction in this cause cured any error presented by Roxanne's answer. Appellant's first point of error is overruled. 1
With his second point, appellant contends that the trial court committed error in allowing the child-victim "to testify before the jury while holding a teddy bear, not her own, over appellant's objection, because this display violated Tex.R.Crim.Evid. 402 and the appellant's constitutional right to confront and cross-examine witnesses." Again, we disagree.
Following a hearing outside the presence of the jury to determine the competency of the child-victim to testify, counsel for appellant interjected the following:
What we observed here just in the last few minutes was, first of all, that the child-witness came in cuddling a big teddy bear, and we would object to the teddy bear being present on the stand during the time testimony is being taken before the jury.
The trial court overruled the objection.
Initially, it is observed that for a complaint to be preserved on appeal, there must be a timely objection stating the specific grounds for the ruling sought. Tex.R.App.P. 52(a); Tex.R.Crim.Evid. 103(a)(1). That is to say, the specific complaints urged on appeal must have been made obvious to the trial court at the time trial objections were made. Jones v. State, 843 S.W.2d 92, 98 (Tex.App.--Dallas 1992, pet'n ref'd). The objection "to the teddy bear being present on the stand during the time testimony is being taken before the jury" was too general to inform the trial court that appellant meant the teddy bear was irrelevant evidence and violated appellant's constitutional right to confront and cross-examine witnesses. Lewis v. State, 664 S.W.2d 345, 349 (Tex.Cr.App.1984). Thus, based upon the state of the record, appellant's bare objection to the child-victim holding the stuffed animal while she testified failed to preserve the specific error for which he now contends.
Still, appellant earnestly submits that his contention is "neither facetious nor inaccurate," because the teddy bear constituted demonstrative evidence, which engendered sympathy in the minds and hearts of the jurors, validated the child-victim's unimpeached credibility, and deprived him of his constitutional right of confrontation. Despite appellant's seriousness, and other than defense counsel's objection recited above, the only other recorded discussion of the teddy bear is the following exchange between the prosecutor and the child-victim:
No objection was lodged to the queries and the replies.
With nothing more in the record, we cannot conclude that the teddy bear constituted demonstrative evidence which engendered sympathy in the minds and hearts of the jury, validated the child-victim's unimpeached credibility, or deprived appellant of his constitutional right of confrontation. Indeed, the same accusation could as reasonably be made of the calculated attire of any witness. Rather, under this record, it seems more rational that the trial court, when faced with the general objection made, permitted the child-victim to retain the stuffed animal as one of the discretionary, "reasonable steps" authorized by the Code of Criminal Procedure in an effort to minimize the psychological, emotional and physical trauma to the child-victim caused by her participation in the prosecution, including her face-to-face confrontation with appellant. Tex.Code Crim.Proc.Ann. art. 38.071, § 10 (Vernon Supp.1996).
And yet, appellant also faults the trial court for failing to make a finding of necessity for allowing the child-victim to cuddle a teddy bear while testifying. We do not inquire into the alleged fault for, as we previously observed, our jurisprudence requires that a complaint be made at trial as a prerequisite to the assignment of judicial error on appeal. Absent the presentation of the complaint to, and for consideration by, the trial court, we will not consider it for the first time on appeal. Harris v. State, 827 S.W.2d 949, 961 (Tex.Cr.App.), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992). Appellant's second point of error is overruled.
Appellant uses his third point of error to charge the trial court with error in denying his motion to sever "the paragraphs in the multi-count indictment because they alleged separate offenses, and thus were subject to mandatory severance" under Texas Penal Code Annotated § 3.04(a) (Vernon 1994), which provides that:
Whenever two or more offenses have been consolidated or joined for trial under Section 3.02 [Consolidation and Joinder of Prosecutions], the defendant shall have a right to a severance of the offenses.
Alternatively, appellant charges the court with error "by not requiring the State to elect which paragraph would be relied on for conviction." We are not in accord.
By its indictment, divided into three paragraphs, the State sought a single conviction for only one offense committed on one occasion. In doing so, the State alleged that on or about July 1, 1993 appellant committed the felony offense of aggravated sexual assault by causing (I) the penetration of the female sexual organ of the child-victim with his finger, (II) the female sexual organ of the child-victim to contact his sexual...
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