Taylor v. State

• Decision Date: 02 August 2007
• Docket Number: No. 01-05-01183-CR.,01-05-01183-CR.
• Citation: Taylor v. State, 263 S.W.3d 304 (Tex. App. 2007)
• Parties: Rashik Ali TAYLOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

263 S.W.3d 304

Rashik Ali TAYLOR, Appellant, v. The STATE of Texas, Appellee.

No. 01-05-01183-CR.

Court of Appeals of Texas, Houston (1st Dist.).

August 2, 2007.

Discretionary Review Granted November 14, 2007.

Nicole DeBorde, Houston, TX, for Appellant.

Charles A. Rosenthal, Jr., District Attorney-Harris County, Carol M. Cameron, Assistant District Attorney, Houston, TX, for Appellee.

Panel consists of Justices NUCHIA, JENNINGS, and BLAND.

OPINION

JANE BLAND, Justice.

Appellant Rashik Ali Taylor pleaded not guilty to the first-degree felony offense of aggravated sexual assault. See TEX. PEN. CODE ANN. § 22.021 (Vernon Supp.2006). A jury found Taylor guilty and assessed punishment at ten years' confinement. In two issues, Taylor contends (1) the trial court abused its discretion in admitting hearsay testimony, and (2) the trial court erred in denying his request for an extraneous offense instruction in the jury charge. We conclude that (1) the trial court did not abuse its discretion in admitting the hearsay testimony under Texas Rule of Evidence 803(4), and (2) the trial court did not err in denying Taylor's request for an extraneous offense instruction in the jury charge because the extraneous offenses in this case constitute same transaction contextual evidence. We therefore affirm.

Background

On the night of March 27, 2005, J.B. was staying at a hotel with her mother and an ex-boyfriend of her aunt known as "Uncle Lazy." J.B. was thirteen years old at the time. Mom, Lazy, and J.B. began drinking a bottle of Mad Dog wine that Mom had purchased earlier that night.¹ Mom then began suffering drug withdrawal symptoms. Lazy and J.B. drove Mom to an apartment complex so that she could work as a prostitute and earn money to buy drugs. Lazy and J.B. returned the van they were using to its owner and went back to their hotel room where Lazy's friend Freddie joined them.

A short time later, Mom called J.B. and informed her that William Zapata, an ex-boyfriend, had kidnapped her and that she needed J.B. to call "Skinny Man" to pick her up. J.B. identified "Skinny Man" at trial as Taylor, the defendant in this case. J.B. called Taylor and he agreed to come to her hotel room after he showered. J.B. used cocaine while she waited for Taylor. After Taylor arrived, he offered J.B. a line of cocaine but she declined. Taylor then told Lazy and Freddie to take his car and pick up Mom. Lazy, however, refused to leave J.B. alone with Taylor. Taylor then suggested that they should all go pick up Mom together. Freddie stayed behind in case Mom came back on her own.

As soon as Taylor and J.B. got in the car, Taylor placed his hand on J.B.'s leg but she pushed it away. Taylor, Lazy, and J.B. then drove to Taylor's hotel room. When they arrived, Taylor told J.B. to get out and come inside because he needed help with something. Inside the hotel room, Taylor pulled out a gun from behind his bed and put it in the waistband of his pants. Taylor then sat down and told J.B. that he was going to move in with her and Mom and that he wanted to spend more time with her. Taylor and J.B. then left the hotel room. As they were leaving, Taylor saw his friend "E" and asked him to join them. Taylor, E, Lazy, and J.B. then drove to another apartment complex.

When they arrived, Taylor and E told Lazy to get out of the car. J.B. noticed that Taylor had drawn his gun so she got out of the car as well. Taylor pointed the gun at Lazy but J.B. jumped in front of him and held onto Lazy. J.B. finally released Lazy when Taylor put the gun to her head. Taylor then put J.B. back in the car, but she climbed out of a window and ran through the apartment complex. As J.B. was running away, she heard gunshots and thought that Taylor had probably killed Lazy. J.B. noticed that Taylor was chasing her so she stopped because she did not think she could outrun him. J.B. refused to go with Taylor so he picked her up and brought her back to the car. Taylor, E, and J.B. then drove back to Taylor's hotel room.

When they arrived at the hotel, J.B. tried to run away again but Taylor quickly caught her and brought her upstairs to his room. J.B. was hysterical when she got inside the room and she repeatedly asked Taylor and E to let her go. At one point, J.B. tried calling Lazy but Taylor grabbed her by the throat and forced her to hang up the phone. Taylor and E then went outside to talk. J.B. went to the restroom and took off her pants to clean off some mud. Taylor then opened the restroom door and told J.B. to come out. J.B. tried to put her pants back on but Taylor told her that she should feel comfortable around him. J.B. and Taylor sat down and began talking. Taylor explained that he had not killed Lazy, but instead given him his car so that he could pick up Mom. Taylor and J.B. then did a few lines of cocaine together.

Taylor then told J.B. to lie on the bed. When she refused, Taylor removed the gun from his waistband and laid it on the nightstand. Taylor then told J.B. to take off her clothes. J.B. felt threatened so she complied with Taylor's requests. Taylor and J.B. then had intercourse twice. J.B. told Taylor to stop and tried to push him away, but she gave up when she realized that struggling would only prolong the ordeal. Afterwards, J.B. and Taylor got dressed and sat on the bed. Taylor tossed a bag of crack cocaine on J.B.'s lap and told her that it was for Mom. Taylor then drove J.B. back to her hotel where she took two Xanax and went to bed.

J.B. told Mom and Lazy about the incident the next day but they did not call the police. J.B. refused to attend school for a few days because of the incident. An official at J.B.'s school eventually called to see how she was doing. J.B. told the official that she thought Taylor might have raped her. After J.B. returned to school, she divulged the entire story and the school official called the police.

Hearsay

In his first issue, Taylor contends the trial court abused its discretion in admitting the hearsay testimony of Denise Volet. Volet is a licensed professional counselor who began treating J.B. in June 2005. At trial, the prosecutor asked Volet about the details that J.B. had given her concerning the sexual assault. Taylor objected on the ground that the testimony would constitute hearsay. The State responded that Volet's testimony was admissible under the exception to the hearsay rule for statements made for the purpose of medical diagnosis or treatment. See TEX.R. EVID. 803(4). After the trial court overruled Taylor's hearsay objection to Volet's testimony, Volet testified as follows:

[Prosecutor:] What did [J.B.] tell you about what had happened?

[Volet:] She referred to the gentleman as Skinny. That's the name that she had for him. And how basically her mother had sent her to go with him. They went to a motel. She talked about being in a car. Talked about there being a gun. She talked about going upstairs into the room. Being afraid, knowing something wasn't right and was going to happen. Skinny asking her to take her clothes off and her telling him she didn't want to. And trying to resist. She talked about the gun being on the nightstand on the table. Her taking her clothes off. Getting on the bed. Skinny having sex with her. That it hurt. And she tried to get away from him and just couldn't. Then when it was over she talked about, you know, leaving. Being in the car. At some point the gun was in her lap for some reason. And she talked about that she had the thought of I should shoot him now. She talked about doing drugs. Doing cocaine. I remember cocaine. I don't remember exactly what it was they drank. But she had been drinking and doing drugs. Had been given those things. She remembered getting out of the car. And what's typical of a victim of rape or abuse.

[Defense Counsel:] I object to the narrative nature of this testimony.

[Trial Court:] Sustained.

[Prosecutor:] What issues were you addressing with her regarding the rape? What was her recollection to the rape?

[Volet:] Anger, number one. She was a very angry young lady. Betrayal she felt from her mother.

A. Preservation

The State asserts that Taylor's objection to Volet's testimony was not sufficiently specific to preserve this issue for appeal. See TEX.R.APP. P. 33.1(a). As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Id. When the State seeks to introduce testimony, it bears the burden of establishing the admissibility of such evidence. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim.App.1992). The proponent of hearsay testimony must point to a hearsay exception before the court can admit such testimony. Perez v. State, 113 S.W.3d 819, 827 n. 4 (Tex.App.-Austin 2003, pet. ref'd). The proponent of hearsay testimony therefore has the burden of laying the proper predicate and establishing its admissibility. Id. At trial, Taylor objected to Volet's testimony on the ground that it would constitute hearsay. Taylor asserted his hearsay objection in a timely manner and with sufficient specificity to make the trial court aware of his complaint. See TEX.R.APP. P. 33.1(a). The burden then passed to the State to demonstrate the admissibility of the testimony. See Kelly, 824 S.W.2d at 573; Perez, 113 S.W.3d at 827 n. 4. The State responded that Volet's testimony was admissible under the exception to the hearsay rule for statements made for the purpose of medical diagnosis or treatment. See TEX.R. EVID. 803(4). We therefore hold that Taylor's hearsay objection was sufficient to preserve this issue for appeal. See Long v. State, 800 S.W.2d 545, 548 (Tex.Crim.App.1990); Carter v. State, 717 S.W.2d 60, 76 (Tex.Crim.App.1986).

B. Hearsay

We review a trial court's...