In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00213-CR ______________________________
TONY LAKEITH DANIELS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th Judicial District Court Fannin County, Texas Trial Court No. 19380
Before Morriss, C.J., Grant and Ross, JJ. Opinion by Chief Justice Morriss
O P I N I O N
Tony LaKeith Daniels was convicted of capital murder and sentenced to life imprisonment in the Texas Department of Criminal Justice. On appeal, Daniels complains the trial court committed reversible error by admitting hearsay testimony from Josh Bush, Corey Glen, and Lee Young.
On June 5, 1999, Chase Severs, with Daniels riding in the passenger's seat, was driving a white, two-door vehicle in Leonard, Texas. Daniels and Severs saw the victim, Chad Whitworth, driving a purple Ford Mustang and decided to steal the vehicle. Severs pulled in front of Whitworth to prevent him from moving, and Daniels forced his way into the driver's seat of the Mustang. Daniels drove the Mustang, and Severs drove the white vehicle to Chuck Simpson's home, where they abandoned the white vehicle. They then forced Whitworth into the trunk of the Mustang. Daniels, with Severs riding in the passenger's seat, drove the Mustang to Whitewright Cemetery. There Daniels and Severs shot Whitworth repeatedly with a .25 caliber pistol. The coroner testified Whitworth died of multiple gunshot wounds from a .25 caliber pistol.
On appeal, Daniels complains the trial court erred by admitting hearsay testimony that he shot Whitworth in the neck and that he carried a gun to the crime scene. When an appellant claims the trial court erred by admitting testimony, the error must have been preserved by a proper objection and ruling. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Rawlings v. State, 874 S.W.2d 740, 742 (Tex. App.-Fort Worth 1994, no pet.). The objection must have been timely, and the defense must have stated the basis for the objection, unless the particular ground was apparent from the context. Tex. R. App. P. 33.1; Lankston v. State, 827 S.W.2d 907, 908-09 (Tex. Crim. App. 1992). In addition, Texas law requires a party to continue objecting each time inadmissible evidence is offered. Ethington, 819 S.W.2d at 858; Jefferson v. State, 909 S.W.2d 247, 250 (Tex. App.-Texarkana 1995, pet. ref'd). Any error in admitting the evidence is cured when the same evidence comes in elsewhere without objection. Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); Mack v. State, 872 S.W.2d 36, 38 (Tex. App.-Fort Worth 1994, no pet.).
For example, in Ethington, 819 S.W.2d at 859-60, the court held that failure to request a "running" objection or to object to each attempted admission would result in waiver of appellate review. Ethington was convicted of aggravated robbery and complained on appeal the trial court erred by admitting evidence of an extraneous offense. Id. at 855. Specifically, the State questioned a witness about another robbery that had been committed by Ethington and the witness. Id. at 857. Ethington objected, claiming the offense was extraneous and inadmissible. Id. After the court overruled the objection, the State continued to probe into the specifics of the extraneous offense with no objection from Ethington. Id. Because Ethington failed to continuously object to the State's questions concerning the offense, the court held that error had been waived. Id. at 859; see Hudson, 675 S.W.2d at 511 (error in admission of evidence is cured when same evidence comes in elsewhere without objection).
In the present case, several witnesses testified Severs told them Daniels shot Whitworth in the neck and had the gun at the scene of the crime. While Daniels properly preserved error by objecting to the testimony of Josh Bush, (1) two other witnesses testified to the same matter without objection. During Corey Glen's testimony, the following exchange occurred:
[State]: Would you tell this jury what he [Severs] told you first?
[Counsel]: I object as hearsay, Your Honor.
[Court]: Overruled.
[Glen]: That he [Severs] killed a fool.
. . . .
[State]: And tell the jury what he [Severs] told you the circumstances were when they first saw this boy and how they eventually got him.
[Glen]: They just got him.
Following the above, the State continued for the next three pages of the record to ask Glen
questions about what Severs told him concerning the kidnapping and murder of Whitworth, all without further objection from Daniels. The complained-of testimony was not elicited until after those three pages of questioning, well after Daniels had made his hearsay objection. Specifically, Glen then gave the following testimony:
[State]: Now you are going to have to speak up. And I will show you your written statement if you would like to, to refresh your memory, but what I want to know, and what this jury needs to know, are the details of what Chase Severs told you that day. Now how did they stop this young man, how did they get the car?
[Glen]: Blocked him off at a stop sign.
. . . .
[State]: Now, when they stopped the car, who did he [Severs] tell you got out of the car and went up to where the young man was?
[Glen]: Tony [Daniels].
. . . .
[State]: And where did they go, where did he [Severs] tell you they went?
[Glen]: [Whitewright] Cemetery.
. . . .
[State]: Tell this jury what he [Severs] told you happened [sic] when they got to the cemetery, in Whitewright.
[Glen]: He said that they all got out, and they were walking in the cemetery, and he said Tony [Daniels] shot him in the back of the neck, and that Chase [Severs] had got the gun and shot him in the cheek and in the forehead, and he said Tony had got the gun and shot him in the arm or something.
Similarly, Severs' girlfriend, Jennifer Robertson, gave the following testimony without objection from Daniels:
[State]: And when they got to the cemetery, what happened?
[Robertson]: [Severs] told me that they got out of the car, [Severs] was in front, the boy was in the middle, and [Daniels] was behind him, and they walked across the field, jumped across some creek, and the gun went off and the boy hit the ground.
[State]: The gun went off?
[Robertson]: Yeah.
[State]: Who had the gun?
[Robertson]: [Severs] said [Daniels] did.
Like Ethington, Daniels did not object each time inadmissible evidence was offered. See Ethington, 819 S.W.2d at 857. In Ethington, the court held that Texas law requires a party to continue to object each time inadmissible evidence is offered, unless counsel requests a "running" objection or lodges a valid objection outside the presence of the jury to all evidence deemed inadmissible. Id. at 858-59; see Tex. R. App. P. 33.1. In the present case, Daniels failed to ask for a "running" objection or make an objection outside the presence of the jury with regard to Glen's or Robertson's testimony. Accordingly, Daniels failed to preserve error for appellate review.
For the reasons stated, we affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 14, 2002
Date Decided: December 20, 2002
Do Not Publish
1. Daniels objected to any portion of Bush's testimony that related to statements Severs made concerning the murder of Whitworth.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00119-CR
______________________________
CAMERON DEON BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 38651-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
By the time Cameron Deon Browns trial date came up on the charge of aggravated sexual assault of a child younger than six years of age, Brown and the State had agreed that Brown was to be found guilty of some form of aggravated sexual assault and that the only issue to be tried, other than his punishment, would be whether, at the time of the offense, the child victim was younger than six years of age or was between six and fourteen years of age. By agreement, Brown pled guilty to aggravated sexual assault of a child under age fourteen; the parties, also by agreement, proceeded to submit both the age issue and the punishment issue to the trial court in a single trial.
Brown appeals from an adjudication of guilt for aggravated sexual assault of a child younger than six years of age and a sentence of twenty-five years incarceration, the minimum available punishment for that offense.[1] In a single point of error, Brown asserts that the trial court erred in telling Brown he had waived his right to remain silent and thus could be compelled to testify and in failing to admonish Brown of his right to remain silent.[2] He also seems to challenge the lack of bifurcation of the proceeding. Because (1) there was no admonishment error and (2) Brown agreed to the grouping of issues at trial, we affirm the trial courts judgment and sentence.
In the indictment, the State alleged that Brown penetrated the victims sexual organ with his finger.[3] Both parties explicitly agreed the trial court would, in one proceeding, hear evidence regarding whether the victim was under the age of six at the time of the offense, or older than six but younger than fourteen.[4] After hearing the evidence, the trial court found the State proved beyond a reasonable doubt the child victim was under the age of six at the time of the offense.
(1) There Was No Admonishment Error
Brown complains of the trial courts statement to Brown that, by pleading guilty, you waive the rights you have under the United States and Texas Constitutions not to testify or offer evidence against yourself. Because by entering your plea of guilty, signing the Stipulation of Evidence, and answering the questions that are asked of you, you waive that right. Brown told the trial court he understood this waiver. The trial courts admonishments were correct. If Brown chose to testify in his defense, he would waive his privilege against self-incrimination. Hernandez v. State, 506 S.W.2d 884, 886 (Tex. Crim. App. 1974) (It is well established that when an accused voluntarily takes the stand he waives his privilege against self-incrimination at the hearing at which he takes the stand.). Browns assertion in his brief on appeal that the trial court compelled Brown to testify is not supported by the record. All parties were in agreement as to the parameters of the hearing: Brown was entering an open plea of guilty to sexual assault of a child. He did not agree the child was less than six years old at the time of Browns assault, and the parties explicitly agreed this factual determination would be submitted to the trial court along with evidence to determine Browns punishment. When a defendant, represented by counsel, takes the stand to testify in his or her own defense, that act is understood to have been undertaken voluntarily and with full knowledge of his or her rights. Mullane v. State, 475 S.W.2d 924, 926 (Tex. Crim. App. 1971).[5] Where a defendant pleads guilty before a jury, there is no requirement the defendant be informed of his or her right against self-incrimination. Williams v. State, 674 S.W.2d 315, 320 (Tex. Crim. App. 1984). Brown has offered no authority or reason why such a requirement should be imposed in a plea of guilty to the trial court. There is nothing in the record to support Browns assertion the trial court compelled Brown to testify.[6] The record demonstrates that Brown was called to the stand by his attorney and that he voluntarily entered his plea to the charge of aggravated sexual assault of a child under fourteen, waived his right to a jury trial, and understood the range of punishment both for the charge to which he pled as well as the charge for which he was indicted. The record is further clear that Brown understood that, while he was pleading guilty to aggravated sexual assault of a child under fourteen, the State intended to introduce evidence the child was younger than six years of age and that the trial court would make a decision on this fact. We overrule Browns point of error.
(2) Brown Agreed to the Grouping of Issues at Trial
Brown also, in passing, appears to complain of the lack of bifurcation of the proceeding.[7] Brown states that, although he pled guilty, he did not plead guilty to the crime charged in the indictment, and for which he was ultimately convicted. Thus, because the hearing before the trial court addressed punishment and a resolution of the fact issue of whether the child victim was under the age of six at the time of the offense, Brown claims this proceeding was not a true unitary proceeding as usually occurs when a defendant pleads guilty and the only issue is punishment. See generally Tex. Code Crim. Proc. Ann. art. 37.07, § 2(a) (Vernon Supp. 2010); Thom v. State, 563 S.W.2d 618, 619 (Tex. Crim. App. 1978). As we have pointed out, Brown agreed to have the trial court take up this matter in the unusual manner which occurred. Brown agreed in essence to plead guilty to a lesser-included offenseaggravated sexual assault of a child less than fourteen years of agewith the understanding the trial court would hear evidence both on the States allegation the child victim was under six, as alleged in the indictment, in the same hearing as the court considered evidence relevant to punishment. Not only did Brown make no objection to this procedure, he joined in urging its implementation. To the extent Brown argues the trial court did not conduct a bifurcated trial, we overrule this complaint.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: February 17, 2011
Date Decided: February 25, 2011
Do Not Publish
[1]See Tex. Penal Code Ann. § 22.021(f)(1) (Vernon Supp. 2010).
[2]Arguably, Brown has presented two arguments in a single point of error, a multifarious complaint. A point of error is multifarious if it embraces more than one specific ground of error. Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010). Nevertheless, in the interest of justice we will address Browns complaints. See Bell v. Tex. Dept of Criminal Justice-Inst. Div., 962 S.W.2d 156, 157 n.1 (Tex. App.Houston [14th Dist.] 1998, pet. denied).
[3]A second count, alleging contact of the childs sexual organ with Browns sexual organ, was abandoned by the State.
[4]If the child victim were older than six but younger than fourteen, Browns range of punishment would have been not less than five years, and not more than ninety-nine years or life; if under six, the minimum punishment was twenty-five years. Cf. Tex. Penal Code Ann. § 22.021(a)(1)(B)(ii) (Vernon Supp. 2010), § 22.021(f)(1).
[5]Here, the trial court made an explicit finding that Brown entered his open plea of guilty freely and voluntarily and that Brown was competent.
[6]Brown cites Carroll v. State, 42 S.W.3d 129 (Tex. Crim. App. 2001), and Mitchell v. United States, 526 U.S. 314 (1999), in support of his argument that he was compelled to testify. We find these cases distinguishable. In Carroll, the defendant pled guilty; almost three months later, the parties appeared for sentencing. When Carrolls attorney was reluctant to tender the defendant for questioning, the trial court told counsel, [I]ts going to reflect very seriously on the Courts decisions here. Carroll v. State, 68 S.W.3d 250, 252 (Tex. App.Fort Worth 2002, no pet.). Mitchell was told by the trial court that the court held it against her that she did not come forward and explain [her] side of the case. Mitchell, 526 U.S. at 319. Those cases are distinguishable from Browns situation, where he voluntarily testified.
[7]This issue is not relevant to Browns sole point of error regarding his waiver of his right against self-incrimination; to the extent he introduces this topic, he raises a multifarious point. We could decline to address this point. Also, as Brown has not fully briefed this matter or explained how, in the particular circumstances of this case, he did not waive any such claim. See Tex. R. App. P. 38.1(h) (appellants brief must contain . . . appropriate citations . . . to the record); Tex. R. App. P. 33.1 (preservation of error). Nonetheless, in the interest of justice, we address this complaint.