Tinlin v. State

• Decision Date: 19 November 1998
• Docket Number: No. 2-97-749-CR,2-97-749-CR
• Parties: Tim Daniel TINLIN, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 65

983 S.W.2d 65

Tim Daniel TINLIN, Appellant, v. The STATE of Texas, State.

No. 2-97-749-CR

Court of Appeals of Texas,

Fort Worth.

Nov. 19, 1998.

Publication Ordered Dec. 17, 1998.

Robert Estrada, Wichita Falls, for Appellant.

Tim Curry, Criminal District Attorney, Charles M. Mallin, Assistant Criminal District Attorney, David M. Curl, Assistant Criminal District Attorney, Jay Lampham, Assistant Criminal District Attorney, Christy Jack, Assistant Criminal District Attorney, Fort Worth, for Appellee.

Before LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

OPINION

DIXON W. HOLMAN, Justice.

Tim Daniel Tinlin was convicted of aggravated sexual assault of a child under the age of 14. See TEX. PENAL CODE ANN. § 22.021 (Vernon 1994). Appellant was sentenced to fifty years in the Institutional Division of the Texas Department of Criminal Justice plus a $10,000 fine. On appeal, Appellant asserts eight points contending that the trial court improperly made a remark that was calculated to benefit the State, erroneously admitted evidence of an extraneous offense, erroneously denied Appellant the opportunity to discredit a punishment witness, denied Appellant the right to present a defense, improperly allowed the State to ask leading questions of the complaining witness, and erroneously admitted Appellant's written confession. Appellant also complains that the evidence was factually insufficient to sustain the verdict and that the cumulative effect of the complained of errors denied Appellant a fair trial. Because we find no reversible error, we affirm.

Background

Appellant was charged by an eight-count indictment of various sexual crimes relating to his daughter, B.T. The State elected to proceed to the jury on only one count, alleging that Appellant had placed his mouth in contact with B.T.'s anus. The jury found Appellant guilty.

Improper Judicial Comment

In Appellant's first point, he asserts that the trial court improperly commented on the weight of the evidence. See TEX.CODE CRIM. PROC. ANN. Art. 38.05 (Vernon 1994). During the evidence stage, Appellant objected to the State leading the complaining witness during direct examination, and the trial court overruled the objection. In closing argument, Appellant's attorney reminded the jury that the only reference to Appellant placing his mouth on the anus of the complainant was heard by them over "an objection that says leading. That is, in effect, putting the words in the mouth." The prosecutor immediately objected to Appellant's argument commenting "that objection [by Appellant during the testimony] was overruled, and the witness was allowed to answer." The trial court sustained the State's objection to Appellant's argument.

On Appeal, Appellant contends that his argument about the result of his objection at trial was proper because the closing argument merely stated the effect of a leading question. Appellant insists that the prosecutor's words in speaking the objection, and the trial court sustaining it, resulted in an improper judicial comment that was reasonably calculated to benefit the State or prejudice the defendant. See Kincade v. State, 552 S.W.2d 832, 835 (Tex.Crim.App.1977); Williams v. State, 834 S.W.2d 502, 505 (Tex.App.--Fort Worth 1992, pet. ref'd). The State argues that Appellant waived any error on his first point by failing to object to the court's ruling. We agree.

To preserve error, the complaining party must have objected to the judge's ruling or the objection is waived. See Sharpe v. State, 648 S.W.2d 705, 706 (Tex.Crim.App.1983); Williams, 834 S.W.2d at 505; Nevarez v. State, 671 S.W.2d 90, 93 (Tex.App.--El Paso 1984, no pet.). Appellant did not object to the trial court's ruling, therefore, nothing is preserved for review. We overrule point one.

Extraneous Offense Evidence

In point two, Appellant contends that the trial court erroneously admitted evidence of an extraneous offense, and to the extent that the evidence was admissible under article 38.37 of the code of criminal procedure, that article is unconstitutional as violative of due process and equal protection.

Appellant's complaint concerns the following exchange during Appellant's cross-examination of Richard Wood, the polygraph examiner:

[Defense Counsel]: It was the State's version, based upon the police reports, that [Appellant] had placed his tongue on [B.T.]'s anus; isn't that correct?

...

[Mr. Wood]: Okay. It was the State's version that he had licked her anus and more.

[Defense Counsel]: Right. And--

[Mr. Wood]: Several other sexual offenses.

[Defense Counsel]: Correct. That's why I said in relevant part....

...

[Defense Counsel]: Now, the police version was at least that, wasn't it?

[Mr. Wood]: Yes sir. That and more, yes sir.

[Defense Counsel in support of his objection]: Yes, Sir. I said that the police version has at least the allegation of a tongue in the anus and--I'm sorry, mouth on the anus and mouth in contact with her female sex organ. The police report had at least that, so that's a yes or no answer.

Instead, he says that and more. And I'm trying to get him to talk about what's consistent with the indictment that's in the police report. The "and more" is not responsive. [Emphasis supplied]

The trial court sustained Appellant's objection and instructed the jury not to consider Mr. Wood's words "and more."

Appellant's complaint on appeal attacks Mr. Wood's answer, "Okay. It was the State's version that he licked her anus and more. " Appellant asserts that his objection to Mr. Wood's answer that contained the words "and more" preserved error regarding the challenged statement. We disagree.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. See TEX.R.APP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998); see also TEX.R. EVID. 103(a)(1). The objection must be made as soon as the basis for the objection becomes apparent. See Johnson v. State, 803 S.W.2d 272, 291 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991); Polk v. State, 729 S.W.2d 749, 753 (Tex.Crim.App.1987). If a party fails to do this, error is not preserved, and the complaint is waived. See Taylor v. State, 939 S.W.2d 148, 155 (Tex.Crim.App.1996). Appellant did not timely object to the statement he now challenges on appeal and, therefore, waives his complaint about it. We overrule point two.

Specific Instances of Conduct

Appellant's third point asserts that the trial court abused its discretion by limiting Appellant's efforts to attack a punishment witness's credibility. During the punishment stage, Appellant's former step-daughter, C.C., testified that Appellant had fondled her when she was six years old and that he had masturbated in her presence while watching pornographic movies. On cross-examination, Appellant was denied the opportunity to question C.C. concerning allegations, that despite an accusation of sexual abuse committed against her by another person, that person was not prosecuted.

Appellant contends that he should have been allowed to ask C.C. about that because such questions could have impeached C.C.'s credibility. Appellant claims that because no prosecution resulted, C.C.'s accusations against the other person were demonstrably false and that could have shown C.C.'s propensity to falsely accuse others of sexual misconduct toward her.

Appellant's argument fails for two reasons: First, Texas Rule of Evidence 608(b) expressly prohibits the use of specific instances of conduct for impeachment of a witness's credibility except to expose bias or interest, rebut affirmative representations made on direct examination, or to demonstrate a lack of capacity. See Lagrone v. State, 942 S.W.2d 602, 612-13 (Tex.Crim.App.1997) (construing the effect of rule 608(b)). Appellant merely wanted to impeach C.C.'s credibility by asking her about specific instances of prior conduct, which is expressly prohibited by rule 608(b). Second, even if the evidence could be perceived as evidence establishing a bias or interest, Appellant still failed to produce any proof that the prior accusation was false. Where there is no evidence that the witness made false accusations, any evidence concerning the accusations is inadmissible. See Hughes v. State, 850 S.W.2d 260, 262-63 (Tex.App.--Fort Worth 1993, pet. ref'd). Accordingly, we overrule Appellant's third point.

CPS Videotape Interview

Next, Appellant asserts in point five that the trial court denied him the right to present a defense under the due process and the compulsory process clauses of the Sixth Amendment. At trial, the State offered a Child Protective Services videotaped interview with B.T. into evidence, and it was admitted without limitation. During Appellant's case-in-chief, Appellant sought to play the taped interview and to stop it at specific intervals to highlight and help establish his defense. The trial court would not let Appellant use that technique.

Appellant vaguely argued at trial that he was "entitled to highlight those things that are favorable to the Defense ... without having to do [it] in summation." On appeal, Appellant invokes due process, Sixth Amendment compulsory process, and claims that presenting a premature jury argument was part of his right to present a defense.

The complaint made on appeal must comport with the complaint made in the trial court, or the error is waived. See House v. State, 947 S.W.2d 251, 257 (Tex.Crim.App.1997); Butler v. State, 872 S.W.2d 227, 236 (Tex.Crim.App.1994). Appellant did not invoke these constitutional authorities at trial, and he cannot do so for the first time on appeal. See Miller v. State, 940 S.W.2d 810, 816 (Tex.App.--Fort Worth 1997, pet. ref'd). Because Appellant failed to object on the...