In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-05-00042-CR
______________________________
ORIAN LEE SCOTT, Appellant
Â
V.
Â
THE STATE OF TEXAS, Appellee
                                             Â
On Appeal from the 6th Judicial District Court
Lamar County, Texas
Trial Court No. 20463
                                                Â
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION
          Orian Lee Scott appeals from his convictions on three counts of inducing a sexual performance by a child, three counts of producing or promoting a sexual performance by a child, and three counts of possession of child pornography. The trial court stacked the jury's recommended sentences for each conviction, resulting in a total prison term of 100 years. The cases have been appealed separately, but have been briefed together.
          Because the briefs and arguments raised therein are identical in all three appeals, for the reasons stated in Scott v. State, No. 06-05-00041-CR, we likewise resolve the issues in this appeal. Because the State produced legally insufficient evidence that Scott "induced" the sexual conduct as contemplated by Tex. Pen. Code Ann. § 43.25(b) (Vernon Supp. 2004â2005), we reverse and render a judgment of acquittal with respect to the convictions for inducing a sexual performance of a child. Since we have determined there was harm associated with the trial court's error in failing to sever Counts III to which Scott pled guilty and which were subject to mandatory rather than discretionary severance, we reverse and remand the matter for a new trial on Counts II concerning production or promotion of a sexual performance and a new punishment hearing on Counts III to which Scott pled "guilty." See Tex. Code Crim. Proc. Ann. art. 26.14 (Vernon 1989); art. 44.29(b) (Vernon Supp. 2004â2005); Wheat v. State, 160 S.W.3d 631, 634 (Tex. App.âWaco 2005, no pet.).
Â
                                                                           Donald R. Ross
                                                                           Justice
Date Submitted:Â Â Â Â Â Â July 13, 2005
Date Decided:Â Â Â Â Â Â Â Â Â September 8, 2005
Do Not Publish
mphetamine. Ostensibly, the State offered this testimony to suggest a financial motive for Greenlee to commit the alleged crime. The record shows that Greenlee raised an objection to Vail's testimony before she took the witness stand:
[GREENLEE]: . . . I would like to make an objection, if I could at this time --
. . . .
to that rebuttal witness [Vail] and to the relevancy of that -- over the weight of the prejudice. It has no relevancy in this burglary case at all, other than to prejudice the jury.
. . . .
It's highly prejudicial, and I just want to put on the record that it's brought me harm and surprise. I just want to put that on the record. I'm claiming that, because it has no relevancy at all to this charge.
THE COURT: You've heard Dr. Vail testify before.
[GREENLEE]: Yes, sir, I have in a prior case where her testimony would have been -- it would have been relevant in the other case.
THE COURT: I guess what I mean is you're not surprised by what you know she's going to say. Your position is you just don't believe that her testimony -- you believe the prejudicial effect outweighs the probative value of that case?
[GREENLEE]: Yes, sir, due to the fact -- due to the fact that it's really not relevant in this case, Your Honor.
The trial court overruled Greenlee's general relevancy objection, as well as the specific probative-versus-prejudicial balancing objection, to Vail's expected testimony. See Tex. R. Evid. 402, 403. Greenlee did not seek, nor did he obtain, a running objection to Vail's expected testimony.
The record shows that Greenlee failed to renew his earlier general relevancy or his earlier Rule 403 balancing objection once Vail took the witness stand and testified about Greenlee's methamphetamine addiction. (5) This failure to reassert his earlier objections waived Greenlee's second issue for our review. See id.
Having concluded that the only issues now asserted were not properly preserved for appellate review, we affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: December 15, 2008
Date Decided: December 19, 2008
Do Not Publish
1. This case was transferred to this Court from the Twelfth District Court of Appeals in Tyler as part of the Texas Supreme Court's docket equalization program. We are not aware of any conflict between the precedent of the Tyler Court and the precedent of this Court on any issue relevant in this appeal. See Tex. R. App. P. 41.3.
2. This was actually Greenlee's second jury trial in this case. The trial court declared a mistrial in November 2005 when the first jury could not arrive at a unanimous verdict.
3. The applicable punishment range in this case was raised to that of a second-degree felony due to Greenlee's previous felony convictions. See Tex. Penal Code Ann. §Â 12.42(a)(2) (Vernon Supp. 2008).
4. Greenlee's original appeal was dismissed by the Twelfth Court of Appeals for want of prosecution. See Greenlee v. State, No. 12-06-00026-CR, 2006 Tex. App. LEXIS 3544 (Tex. App.--Tyler Apr. 28, 2006, no pet.) (mem. op., not designated for publication). The Texas Court of Criminal Appeals subsequently granted Greenlee a new, out-of-time appeal. See Ex parte Greenlee, AP-75,876, 2008 Tex. Crim. App. Unpub. LEXIS 218 (Tex. Crim. App. Mar. 19, 2008) (not designated for publication).
5. Greenlee did raise a single hearsay objection concerning Greenlee's admission to Vail, made during the scope of her provision of psychiatric treatment of Greenlee, about his lengthy history of intravenous methamphetamine use. The trial court overruled this single, hearsay objection.