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NUMBER 13-04-00125-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI B EDINBURG
JOHN EDWARD BROWN, IV, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Hinojosa and Rodriguez
Memorandum Opinion by Justice Hinojosa
A jury found appellant, John Edward Brown, IV, guilty of the offense of aggravated sexual assault of a child and assessed his punishment at ten years= imprisonment. The trial court has certified that this case Ais not a plea-bargain case, and [appellant] has the right of appeal.@ See Tex. R. App. P. 25.2(a)(2). In four issues, appellant contends (1) the trial court erred by (a) admitting evidence of extraneous offenses, (b) refusing to allow appellant to call two witnesses solely to have them invoke their Fifth Amendment privilege in front of the jury, and (c) giving an oral limiting instruction to the jury, prohibiting the jury from drawing improper inferences from the failure of the two witnesses to testify; and (2) the evidence is factually insufficient to support his conviction. We affirm.
As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. Tex. R. App. P. 47.4.
A. Admission of Extraneous Offense Evidence
In his first issue, appellant complains the trial court erred by admitting evidence of extraneous offenses during the guilt/innocence phase of his trial. Specifically, appellant contends the trial court erred in allowing the State to elicit testimony from a witness regarding (1) an assault appellant committed on his wife and (2) deadly conduct appellant committed against the victim=s mother.
If a defendant objects to the admission of evidence, but the same evidence is subsequently introduced from another source without objection, the defendant waives his earlier objection. Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996); Leday v. State, 983 S.W.2d 713, 717-18 (Tex. Crim. App. 1994). This rule does not apply when the evidence not objected to is presented in an effort to meet, destroy or rebut the evidence initially objected to. Leday, 983 S.W.2d at 718-19.
During the guilt/innocence phase of trial, the victim testified that she was at appellant=s house a couple of months after the sexual assault occurred when a fight, which began verbally but became physical, broke out between appellant and his wife. Defense counsel objected, claiming that the evidence of appellant=s assault on his wife was much more prejudicial than probative, as it was only introduced to portray appellant as a violent human being. The trial court overruled the objection.
Later, the victim testified, without objection, that appellant=s wife was really scared of appellant because he was very violent and abusive and had hit his wife and child on at least three or four separate occasions. Nueces County Sheriff=s Department Deputy Angie Rendon testified, without objection, that appellant=s wife told her that appellant had abused her a lot. Christopher Garrett, appellant=s roommate, testified, without objection, that a fight broke out between appellant and his wife on the same night that the victim testified a fight took place. Appellant=s wife testified, without objection, that appellant had hit her, leaving injuries to her lower lip, and that twenty-five to thirty percent of their arguments involved physical violence.
The victim also testified that when her mother confronted appellant about the sexual assault, appellant got a shotgun and pointed it at her mother. Defense counsel objected, claiming the evidence was only prejudicial and not probative. Later, the victim=s mother testified, without objection, that, when she confronted appellant about the sexual assault, appellant got a gun, threatened to Akill the whole goddamn bunch of you,@ and pointed the gun at her. The victim=s mother also testified, again without objection, that when she confronted appellant about reneging on his promise to get counseling, he again pointed a rifle at her and threatened to kill everyone.
Evidence of appellant=s assault on and violent conduct toward his wife and deadly conduct against the victim=s mother was presented to the jury on numerous occasions, without objection. There is nothing in the record to indicate that any of the subsequently introduced evidence was presented to meet, destroy, or rebut the initial, objected to submissions of evidence.
We hold appellant waived his objections to the admission of evidence of an assault committed by appellant against his wife and deadly conduct committed by appellant against the victim=s mother when, later in the trial, he allowed the same evidence to be presented to the jury without objection. Appellant=s first issue is overruled.
B. Trial Court=s Refusal to Allow Defense Witnesses to Testify
In his second issue, appellant contends the trial court erred in refusing to allow him to call two witnesses who indicated to the court that each would invoke the Fifth Amendment to every question asked of them if they took the stand.
Robert McCain and Benito Garza had been with appellant and the victim the night of the sexual assault. During testimony, it was learned that McCain and Garza were both alleged to have been participating in illegal activities, including touching the victim in a sexual manner, on the night in question. Appellant then sought to call McCain and Garza to testify. The trial court conducted an inquiry outside the presence of the jury regarding whether McCain and Garza would invoke their Fifth Amendment privilege to any questions asked of them, determined that they would, and ruled there was no need for them to invoke that privilege in front of the jury.
If a potential defense witness has a Fifth Amendment privilege against incriminating himself, that privilege overrides a defendant=s right to compel testimony. Palomo v. State, 925 S.W.2d 329, 334 (Tex. App.BCorpus Christi 1996, no pet.); see Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986). Moreover, a defendant has no right to have a witness merely assert his privilege against self-incrimination in front of the jury. Bridge, 726 S.W.2d at 567; Palomo, 925 S.W.2d at 334. The critical inquiry for the trial court to make before it excludes testimony is whether a potential defense witness who may have a privilege against testifying intends to invoke that privilege or intends to waive that privilege if called to the stand. Palomo, 925 S.W.2d at 334. The intentions of a potential witness, if not already apparent, can be determined by questioning that potential witness at a hearing outside the presence of the jury. Id. Once the potential witness indicates that he will invoke his constitutional privilege, the court need not call him to the stand before the jury. Id.
Here, the trial court conducted the proper inquiry and, after determining that McCain and Garza would invoke their constitutional privilege, was under no obligation to allow appellant to call McCain and Garza to the stand. Appellant=s second issue is overruled.
C. Trial Court=s Submission of the Jury Instruction
In his third issue, appellant contends the trial court erred in giving an oral limiting instruction to the jury concerning the two witnesses who did not testify. Specifically, appellant asserts the instruction was too broad and could have unfairly prejudiced the jury into believing it could not reasonably infer from the evidence presented at trial that either of the two witnesses could have perpetrated the crime of which appellant was accused.
To preserve a complaint for appellate review, a party must have (1) presented a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds were not apparent from the context, and (2) obtained a ruling. Tex. R. App. P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 886-87 (Tex. Crim. App. 2002).
In his opening statement, appellant=s counsel informed the jury that McCain and Garza would be called to testify. At the close of trial, appellant, outside the presence of the jury, requested an instruction to the jury that it was not appellant=s fault that the witnesses had not been called and that the jury should draw no inferences against appellant regarding the absence of those two witnesses.
The State requested that the instruction be amended to show that it was also not the State=s fault and no inferences should be drawn against the State either. Appellant accepted the State=s changes, without objection. The trial court repeated the changed instruction to both parties and asked if both were satisfied with the instruction. Neither party objected. The trial court then orally instructed the jury as follows:
Members of the jury, during the opening statement Mr. Tinder informed you that the defense would be calling in addition to its other witnesses, two witnesses; that being Benito Garza and Robert McCain. Those two witnesses will not be testifying, through no fault of either the defense or the State, and the Court will instruct you that you are not to draw any inferences adverse to either side from the absence of those witnesses at this trial.
Appellant made no objection to the instruction.
Here, appellant did not call the court=s attention to any error in the instruction and did not object to the instruction when the trial court informed him of the instruction or when the instruction was read to the jury. Thus, appellant waived any error. Appellant=s third issue is overruled.
D. Factual Sufficiency
In his fourth issue, appellant contends the evidence is factually insufficient to support his conviction. Specifically, appellant asserts (1) the victim=s testimony lacked credibility and (2) appellant=s wife provided testimony that negated the factual accuracy of the victim=s testimony.
When we review the factual sufficiency of the evidence, we review all of the evidence and set aside the verdict only if (1) the evidence is so weak as to be clearly wrong and manifestly unjust or (2) the verdict is against the great weight of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We are not bound to view the evidence in the light most favorable to the prosecution and may consider the testimony of all the witnesses. Id. at 10-12. Disagreeing with the fact finder=s determination is appropriate only when the record clearly indicates that such a step is necessary to arrest the occurrence of a manifest injustice; otherwise, due deference must be accorded the fact finder=s determinations, particularly those concerning the weight and credibility of the evidence. Id. We measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. Wheaton v. State, 129 S.W.3d 267, 272 (Tex. App.BCorpus Christi 2004, no pet.); see Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref=d).
Appellant was charged with the offense of aggravated sexual assault of a child by penetration of the female sexual organ. A person commits aggravated sexual assault of a child by intentionally or knowingly causing the penetration of the sexual organ of a child by any means and the victim is younger than fourteen years of age. Tex. Pen. Code Ann. _ 22.021 (Vernon 2004). The testimony of a sexual assault victim alone is sufficient evidence of penetration to support a conviction. Villanueva v. State, 703 S.W.2d 244, 245 (Tex. App.BCorpus Christi 1985, no pet.). This is true even where the victim is a child. Id. Here, the victim testified positively that she saw her rapist, heard his voice, and appellant was the rapist.
Viewing the evidence neutrally, we conclude the evidence is not so weak as to be clearly wrong and manifestly unjust and the verdict is not against the great weight of the evidence. The proof contrary to the State=s evidence, which consisted of testimony from appellant=s wife that appellant was with her at the time of the assault, does not greatly outweigh the proof of guilt. Accordingly, we hold the evidence is factually sufficient to support appellant=s conviction for the offense of aggravated sexual assault. Appellant=s fourth issue is overruled.
The judgment of the trial court is affirmed.
FEDERICO G. HINOJOSA
Justice
Do not publish. See Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed this
the 18th day of August, 2005.