Opinion issued February 27, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-01-01218-CR
JACK ALLEN JOHNSTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 2nd 25th District Court
Colorado County, Texas
Trial Court Cause No. CR01-126
MEMORANDUM OPINION
A jury found appellant, Jack Allen Johnston, guilty of felony sexual assault of a child. After appellant pled true to the allegations of the enhancement paragraph that he had two prior convictions, the trial court assessed punishment at 75 years in prison. In four issues, appellant complains that the trial court erred by overruling his objection to a leading question that appellant contends resulted in a witness testifying from “false memory.” We affirm.
Background
While at appellant’s home, John Doe One, age 15 and M.W., age 16, drank alcohol and became intoxicated until they both fell asleep on a sofa mattress. M.W. was awakened when the mattress shook and saw appellant sexually assaulting John Doe One, who was passed out on the mattress. M.W. stopped the assault by pushing appellant away from John Doe One and waking him up. Upon waking, John Doe One realized that he was naked and discovered Vaseline on himself. When appellant left the residence, the juveniles found a ride to John Doe One's mother’s house, where she was alerted to the offense.
The State’s evidence at trial consisted of testimony from John Doe One, his mother, M.W., a physician who examined John Doe One after the incident, police officers, and a stipulation from the parties that the substance John Doe One discovered on himself was Vaseline. Appellant had several trial strategies. One was to show that M.W. had actually attacked John Doe One. Alternatively, and more vigorously, appellant tried to show that M.W. had a motive to fabricate his testimony because his probation for a prior offense of criminal mischief might be jeopardized if, in reporting the attack on John Doe One, he admitted that he had been drinking alcoholic beverages. Appellant also suggested that appellant had accused M.W. and John Doe One of damaging appellant’s vehicle while they were at his residence and that they had fabricated the sexual assault charges in retaliation.
No Error Preserved
Appellant’s four issues challenge the trial court’s overruling his objection to a question the State asked John Doe One’s mother. Appellant contends that the question was leading and supplied a “false memory.” We conclude that appellant elicited substantively the same testimony from the same witness and therefore waived any possible error in the trial court’s overruling appellant’s objection to the State’s question.
Appellant argues that John Doe One’s mother was supplied a false memory because of the following exchange:
[By the prosecutor]: The concern on [M.W.]’s part was when he went to the Sheriff’s Office and told them he had been drinking; that was something of a concern –
[By appellant’s counsel]: Objection, Your Honor. He is leading the witness.
THE COURT: I am going to overrule on this particular part of the evidence and consider it cross-examination. Go ahead.
[By the prosecutor]: There was concern on [M.W.]’s part, because he was on probation for breaking some windows, a misdemeanor probation, that he might get his probation revoked if he went to the Sheriff’s Office and told them he had been drinking alcohol. Is that right?
[John Doe One’s mother]: Yes.
[By the prosecutor]: And did he go ahead and go to the Sheriff’s office and admit truthfully to what he had done?
[John Doe One’s mother]: Yes, he did.
(Emphasis added.)
Appellant argues that because the State led the witness, the witness was supplied the information about why M.W. feared that his probation might be revoked and thereafter testified from “false memory.” Appellant, however, supplied the same information to the witness through his questioning and therefore waived the right to complain about the prosecution’s conveyance of information to the witness through the leading question. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).
Before the State’s questions that allegedly supplied the “false memory” and during a hearing outside the presence of the jury, appellant’s attorney asked John Doe One’s mother if “Bonnie Croasman or M.W. ever discuss[ed] the impact that any allegations of theft or any wrongdoing on their part would have on his probation as a juvenile?” (emphasis added). The mother answered, “I am aware he that he was on probation; I am not sure exactly at what point.” She further testified that she thought M.W. had brought up the issue of his probation. Appellant then asked if “it was mentioned that [appellant’s probation] was impacting on [M.W.’s] mind.” The mother then said, “Like I say, we were all in shock . . . and I think when I did find out that he had filed charges is when I went to the police station . . . and they told M.W. that he would not be in trouble.”
Also before the State’s questions that allegedly supplied the “false memory” and after the jury was brought back into the courtroom, appellant’s attorney asked John Doe One’s mother whether there was a conversation “concerning M.W. speaking about how any of this incident could impact his probation and that he didn’t want to go to boot camp.” (Emphasis added.) The mother replied, “I just found out that he was on probation for breaking some windows at the baseball field and I think I told him I don’t see how he could get in trouble for something that he didn’t do.”
Because appellant’s attorney elicited the same evidence from the witness before the State’s leading question, appellant has waived the right to complain about any alleged error. Overruling an objection to evidence will not result in reversal when the same evidence is received without objection, whether before or after the challenged ruling, and whether the State or the defendant introduces the evidence. See Leday, 983 S.W.2d at 718. A defendant who offers the other evidence waives any error in the trial court’s overruling the defendant’s initial objection. Id.
We overrule appellant’s four issues.
Conclusion
We affirm the judgment of the trial court.
Elsa Alcala
Justice
Panel consists of Justices Hedges, Jennings, and Alcala.
Do not publish. Tex. R. App. P. 47.2(b).