IN THE
TENTH COURT OF APPEALS
No. 10-98-052-CR
LARRY WAYNE DAVIS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court # 8697-A
O P I N I O N
Larry Davis was convicted of sexual assault of a child. See Tex. Pen. Code Ann. § 22.011 (Vernon 1994 & Supp. 1998). He was sentenced to twenty years’ imprisonment and a $10,000 fine. He appeals, asserting two issues for review. We will affirm the judgment.
FACTS
C.M. testified at trial. She testified that she visited Davis, her biological father, approximately five times over the course of her life. One of those visits occurred over Labor Day weekend of 1996. C.M. testified that, on Saturday, Davis touched her in an inappropriate manner both over and underneath her clothing. She further testified that she awoke Sunday morning to find Davis on top of her. C.M. testified that Davis then raped her.
RULE 403
Davis’ first issue alleges that the court erred in denying his request for a mistrial or directed verdict or, alternatively, in not striking the testimony of his witness, elicited through cross-examination, on Rule 403 grounds. Tex. R. Evid. 403. Dana Puckett, the mother of two of Davis’ children, testified on Davis’ behalf. The relevant testimony follows:
Q: All right. Do you feel like that sexual abuse should be kept within the family and not turned in?
[Defense Counsel]: Objection, Your Honor. It calls for speculation.
[The Court]: Overruled.
A: Not now, I don’t.
Q: Not now?
A: Yes.
Q: You have covered it up before, haven’t you?
A: Not really covered it up. I just didn’t tell.
Q:I just sent his father--just pled in here not long ago, didn’t he, for molesting one of your daughters?
A: Yes.
Q: And you knew about it and didn’t turn it in, did you?
[Defense Counsel]: Objection, Your Honor, this is getting--this is getting beyond what needs to be proven in this case.
[The Court]: Overruled.
The examination continued without further objection. The defense chose not to redirect and rested at the close of this testimony.
A charge conference was later held, at which the State and Davis stated “no objection” to the charge. At the end of this conference, Davis proposed to the court a “motion for instructed verdict” and “motion requesting specific instruction.” Davis argued that “the prosecutor violated Rule 404 of the Rules of Evidence, and Rule 403 in eliciting those comments.” At this time, Davis argued that there was no probative value and the testimony was “overly prejudicial.” Davis concluded by asking for a directed verdict or, alternatively, that the jury be instructed to disregard all of the cross-examination testimony. His request was denied.
In Montgomery v. State, the Court of Criminal Appeals required that proper timely objections be made to preserve contentions under Rules 403 and 404(b) of the Rules of Evidence. 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (opinion on rehearing). If, on appeal, a defendant claims the trial judge erred in admitting evidence offered by the State, this error must have been preserved by a proper objection and a ruling on that objection. Tex. R. App. P. 33.1; Tex. R. Evid. 103. The objection must be timely; that is, the defense must have objected as soon as the ground for objection became apparent. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). Further, the defense must have moved to strike the evidence, i.e., to have it removed from the body of evidence the jury is allowed to consider. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Because Davis did not object on Rule 403 grounds until after the close of evidence, he failed to make a timely objection. Dinkins, 894 S.W.2d at 355. The trial court was not in a position to cure any possible harm at that time. Davis should have objected on Rule 403 grounds at the time the testimony was elicited, and then requested that the jury be instructed to disregard. He did not. Issue one is overruled.
JURY DELIBERATIONS
In his second issue, Davis argues that the court erred in permitting the jury to continue deliberations after it became apparent that they were considering the effects of parole law.
During deliberations, the jury sent a note to the court asking how many total years Davis had served in prison for prior offenses. The court responded, “I’m prohibited from responding to this question. Please follow the Charge of the Court.” The court then asked for objections. Davis’ only objection was that “it should be referred to a specific instruction.” This objection was overruled.
Davis filed a motion for new trial in which he alleged jury misconduct because “the record shows they in fact considered the consequences of parole, and then imposed the maximum sentence.” He now complains that the court erred in allowing the jury to continue deliberations. We disagree.
There was no hearing on the motion for new trial. This one note does not indicate that the jury was improperly considering the effects of parole laws when it imposed Davis’ sentence. The jury may have been considering the fact that Davis had been to prison before yet continued to break the law. Without further evidence, we can only speculate about the jury’s reason for asking about Davis’ prior time in prison. This is not evidence of jury misconduct. Issue two is overruled.
We affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed December 23, 1998
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