Benjamin Burdette Costar v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00548-CR

Benjamin Burdette Costar, Appellant

The State of Texas, Appellee

FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT

NO. CR4778, HONORABLE CHARLES J. HEARN, JUDGE PRESIDING

After finding appellant guilty of indecency with a child by contact, Tex. Penal Code Ann. § 21.11(a)(1) (West 1994), the jury assessed punishment at confinement for twenty years. In a single point of error, appellant contends that the trial court erred in admitting evidence of extraneous offenses concerning appellant and children not the subject of the indictment. We will overrule appellant's point of error and affirm the judgment of the trial court.

The context in which this prosecution arose shows that K.C.B., age nine, went to Kingsland in the summer of 1996 to visit her father Donald Berry. K.C.B.'s father was estranged from her mother Baylor Berry. K.C.B.'s father lived next door to her aunt Amy Baugh, the mother of three young girls. Appellant and his wife Rebecca Faye (hereinafter referred to as Faye) were living with Amy. While Amy and Donald were working, appellant and Faye served as babysitters for K.C.B. and Amy's daughters.

Appellant's complaint about the introduction of extraneous offenses is directed to the testimony of four witnesses.⁽¹⁾

Amy, the first witness to testify for the State, stated that when she returned home from work on July 30, 1996, she was met by Faye who was screaming and crying and said she was sorry. Faye kept screaming "over and over" she was sorry, "Ben [appellant] has been messing with the kids." Defense counsel made no objection to this testimony.

Prior to Faye's testimony, a hearing was held outside the presence of the jury relative to the introduction of extraneous offenses. Appellant stated he had a "403 objection, in that it is unfairly prejudicial, confuses the issues. [The State] -- cannot be allowed to sling a bunch of mud against the wall or against [appellant] with other charges that aren't being filed." After the State urged that Faye's testimony as to what K.C.B. told her about the abuse of her cousins was inextricably linked with K.C.B.'s own abuse, the trial court overruled appellant's objection and instructed the jury as follows:

You're instructed that you're to consider the statement of the outcry witness for the purpose of acts of the Defendant as it relates to this case only and you're not to consider the statement of the outcry witness as any evidence of any extraneous acts of the Defendant for any purpose whatsoever.

Faye testified that K.C.B. approached her on the day in question. K.C.B. said that she had to "make Ben [appellant] stop touching me, Jessie Mae and Katherine." Faye related that she threw her wedding ring at appellant when he returned home and told him to leave. Appellant responded "F you, I don't care what you believe." No objection was made to any of the foregoing testimony.

Prior to K.C.B. testifying, another hearing was held outside the presence of the jury. The State advised the trial court that it intended to introduce testimony by K.C.B. that she was prompted to complain to Faye after her cousin Ashley was crying and saying that appellant had touched her private parts. Appellant objected that it was "hearsay, unfairly prejudicial, contrary to Article 38.072 and contrary to Article 38.37 of the Texas Code of Criminal Procedure." K.C.B., age 11 at the time of trial, testified that she knew the difference between "good touches" and "bad touches." Appellant had touched her at the "place where you go to the bathroom -- private part." Also, on two occasions appellant touched his "private part outside his shorts." K.C.B. said this had been happening to her prior to telling Faye but she was afraid to tell anyone. It was not until her cousin Ashley told her what appellant had done to her that she felt she should tell Faye.

K.C.B.'s grandmother, Barbara Baugh, was staying at Donald's house at the time in question. When she returned to the house that night she heard Faye yelling at appellant. Faye and the grandchildren were upset and crying. Appellant's hearsay objection to the prosecutor asking Barbara why the children were crying was sustained. In addition, appellant complains of K.C.B.'s testimony on redirect that she told Faye about herself and the other girls. The trial court overruled defense counsel's "renewal of my previous objection."

"To preserve an issue for appellate review, the defendant must make a timely request, objection or motion stating specific grounds for the ruling he desires the trial judge to make; the objection must be made at the earliest opportunity." King v. State, 953 S.W.2d 266, 268 (Tex. Crim. App. 1997). Clearly, appellant did not make a timely objection to the alleged improper evidence. No objection was voiced to the State's first witness, Amy Baugh, who testified that Faye told her that appellant had been messing with the girls. Nor does appellant's objection at trial comport with his complaint on appeal. See Barley v. State, 906 S.W.2d 27, 37 (Tex. Crim. App. 1995), cert. denied, 116 S. Ct. 1271 (1996). At no time during trial did appellant complain of the introduction of testimony of extraneous offenses or object on the basis of a violation of Tex. R. Evid. 404(b). Moreover, a review of the record reflects that the State introduced evidence to the same effect without objection. See Narvaiz v. State, 840 S.W.2d 415, 430 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 975 (1993). We hold that any error in the introduction of the complained of evidence was waived. Appellant's point of error is overruled.

The judgment is affirmed.

Tom G. Davis, Justice

Before Justices Kidd, Patterson and Davis^*

Affirmed

Filed: July 29, 1999

Do Not Publish

^*Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

The State filed a written notice of its intent to introduce extraneous offenses that noted it had furnished appellant with offense reports which detailed the offenses. See Tex. Code Crim. Proc. Ann. art. 38.37(4) (West 1994).

aye after her cousin Ashley was crying and saying that appellant had touched her private parts. Appellant objected that it was "hearsay, unfairly prejudicial, contrary to Article 38.072 and contrary to Article 38.37 of the Texas Code of Criminal Procedure." K.C.B., age 11 at the time of trial, testified that she knew the difference between "good touches" and "bad touches." Appellant had touched her at the "place where you go to the bathroom -- private part." Also, on two occasions appellant touched his "private part outside his shorts." K.C.B. said this had been happening to her prior to telling Faye but she was afraid to tell anyone. It was not until her cousin Ashley told her what appellant had done to her that she felt she should tell Faye.