Bryan Thomas Lemieux v. State

Lemieux v. State

NO. 10-90-212-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

          BRYAN THOMAS LEMIEUX,

                                                                                            Appellant

          v.

          THE STATE OF TEXAS,

                                                                                            Appellee

* * * * * * * * * * * * *

From County Court at Law

Johnson County, Texas

Trial Court #M90-01834

* * * * * * * * * * * * *

O P I N I O N

* * * * * * *

          Appellant was convicted of displaying harmful material to a minor. See Tex. Penal Code Ann. § 43.24(b) (Vernon 1989). We will affirm.

          A fourteen-year-old boy identified a pornographic video tape, entitled "The Sensuous Spy," as the same tape he viewed in Appellant's home with Appellant's permission. He was "sure" it was the same tape. The court admitted the tape into evidence over an objection that the State had failed to prove a complete chain of custody for the exhibit. Appellant later asked for an instructed verdict of "not guilty" on the ground that the State had failed to prove that the tape was the same one that was shown to the victim and confiscated by police.

          Appellant's first point is based upon the video tape's admission into evidence. He first argues that the exhibit was improperly admitted because the victim failed to adequately identify it. A witness does not have to positively identify an object as being connected with an offense before it can be admitted into evidence. Jones v. State, 617 S.W.2d 704, 705 (Tex. Crim. App. [Panel Op.] 1981). Here, the identification was positive enough to authorize the tape's admission into evidence over an objection related to its identification.

          Appellant also argues under point one that the tape was inadmissible because the State failed to prove a complete chain of custody. This contention is rejected for two reasons. First, chain-of-custody is not an issue when an object, such as the video tape, has readily identifiable and distinguishable characteristics. See Hammett v. State, 578 S.W.2d 699, 711 (Tex. Crim. App. 1979) (on rehearing). Second, without any evidence or suggestion of tampering, the chain-of-custody objection went to the exhibit's weight and not its admissibility. See Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985), cert. denied, 475 U.S. 1031, 106 S. Ct. 1238, 89 L. Ed. 2d 346 (1986).

          The court did not abuse its discretion when it admitted the video tape into evidence. Point one is overruled.

          The fourteen-year-old victim claimed on both direct and cross-examination during the guilt-innocence phase that he had entered Appellant's residence only one time without Appellant being there. Appellant contends in point two that the court improperly excluded evidence from a defense witness who would have testified that the boy entered Appellant's home on more than one occasion when Appellant was not there. This evidence was admissible, Appellant argues, to impeach the victim's credibility and to prove that he could have viewed the video tape without Appellant's knowledge or consent.

          A party cannot offer extrinsic evidence to impeach a witness on a collateral matter. Flannery v. State, 676 S.W.2d 369, 370 (Tex. Crim. App. 1984). Here, the essential question was whether Appellant knowingly and intentionally displayed the pornographic material to a minor, not whether the minor was correct about the number of times he had been inside Appellant's home without Appellant being there. See Diaz v. State, 638 S.W.2d 71, 73 (Tex. App.—Corpus Christi 1982, no pet.). Thus, the evidence was properly excluded because it was offered to impeach the minor on a collateral matter.

          Moreover, assuming that the evidence was improperly excluded, any error was harmless. See Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989). The jury had before it Appellant's written statement in which he admitted showing the pornographic video tape to the minor, the video tape itself, and the minor's testimony that Appellant had knowingly allowed him to see the tape. Appellant does not contend that the tape was not pornographic. Isolating the assumed error and assessing it against the record as a whole, we conclude beyond a reasonable doubt that the assumed error did not contribute to Appellant's punishment or conviction. See Tex. R. App. P. 81(b)(2). Point two is overruled. The judgment is affirmed.

 

                                                                       BOB L. THOMAS

                                                                       Chief Justice

Before Chief Justice Thomas,

          Justice Cummings and

          Justice Vance

Affirmed

Opinion delivered and filed August 1, 1991

Do not Publish

un:yes'> Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Appellees

 

 

 

From the 220th District Court

Bosque County, Texas

Trial Court # 02-10-33702-BCCV

 

O R D E R

 

          Appellants Dwain Fagan, Sr. and Rose Lee Fagan filed a second motion for rehearing.  The appellate rules authorize a second or subsequent motion for rehearing only if the court of appeals alters in any way its judgment or opinion in conjunction with the overruling of a previous motion.  Tex. R. App. P. 49.5; Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992); Mapco, Inc. v. Forrest, 795 S.W.2d 700, 702 (Tex. 1990).  In overruling Appellants’ previous motion for rehearing, this Court did not alter its judgment or opinion.  A second motion for rehearing not authorized by the rules is a nullity.  Mapco, 795 S.W.2d at 702.  The second motion for rehearing is dismissed.

 

PER CURIAM

 

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

          (Chief Justice Gray dissents with a note)

Motion dismissed

Order issued and filed May 18, 2005

Do not publish

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Dissenting Note:  To clarify the procedural posture of this appeal and set with certainty the time for filing a petition for review, I would use the court’s plenary power to withdraw the opinion and judgment issued February 23, 2005, the dissenting opinion of Chief Justice Gray issued April 13, 2005 and reissue them together.