Affirmed and Memorandum Opinion filed May 11, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-02-01217-CR
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GREGORY LYNN BOX, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 893,715
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M E M O R A N D U M O P I N I O N
A jury found appellant, Gregory Lynn Box, guilty of aggravated sexual assault of a child. In two issues, he contends the trial court erred in (1) sustaining the State=s objection to his jury argument, and (2) admitting a videotaped interview of the complainant. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
Background
In February 2001, ten year old L.G. spent the night at appellant=s house. Appellant and his family were L.G.=s family=s neighbors, and L.G. was friends with appellant=s son. According to L.G., she went to sleep on the bottom bunk of a bunk bed and awoke in the middle of the night with her pants and panties removed. Appellant was in the bed with her licking her Aprivate part.@ In October 2001, L.G. told her mother about the incident. A Children=s Assessment Center (CAC) employee conducted a videotaped interview of L.G., during which L.G. repeated the allegations she had made to her mother.
Jury Argument
In his first issue, appellant contends the trial court erred in sustaining the State=s objection to a portion of his jury argument. During closing argument, appellant argued the State had not offered his statement to police into evidence because it was Agood for him and they don=t want it in.@ The trial court sustained the State=s objection based on Afacts not in evidence@ and instructed the jurors to disregard.
The permissible areas of jury argument are (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to the argument of opposing counsel, and (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). Appellant urges his argument was proper because it was a fair and reasonable deduction based on the State=s failure to offer the statement into evidence. Appellant bases his contention on the established rule that a party may comment on the other party=s failure to call a witness, and argue that the reason for the failure is that the testimony would be unfavorable. See Albair v. State, 739 S.W.2d 360, 363 (Tex. Crim. App. 1987). Nevertheless, a party may not invite the jury to speculate on evidence not presented. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Cooks v. State, 844 S.W.2d 697, 728 (Tex. Crim. App. 1992). As appellant points out, his police statement was not admitted into evidence. Therefore, appellant=s jury argument was improper. See Cooks, 844 S.W.2d at 728 (argument that invited jury to speculate on the contents of a police statement not in evidence was improper). We overrule appellant=s first issue.
Admission of Videotape
In his second issue, appellant contends that the trial court erred by admitting L.G.=s videotaped interview conducted at the CAC into evidence. Appellant claims the statements on the videotape (1) are hearsay, (2) do not satisfy the outcry exception to the hearsay rule, and (3) are unfairly prejudicial.[1] We review a trial court=s ruling on the admissibility of evidence for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We must uphold the trial court=s ruling if it was within the zone of reasonable disagreement. Id.
Hearsay
First, Appellant contends the videotape is hearsay. The State responds with an assertion that the videotape is not hearsay because it was not offered to prove the truth of the matter asserted, but as a prior consistent statement. See Tex. R. Evid. 801(e)(1)(B). Under this rule, a party may introduce a prior consistent statement if the declarant testifies at trial, is subject to cross-examination, and the statement Ais offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.@ During his opening statement, appellant said
Sometimes children will say unrealistic things to meet realistic needs. Put it another way, children will make up a story to get what they need.
You will hear about false allegations . . . not supported by any evidence. . . . Not supported by possibilities. And not supported by common sense.
You are going to hear testimony that she wanted to get her mother back with her father who lived in Corpus Christi. That=s what she wanted and what she needed.
Appellant also asked several of the State=s witnesses whether a child would lie about sexual assault allegations. During L.G.=s testimony, appellant asked her whether she remembered Afor sure@ that she was on the bottom bunk. When she responded that she was on the bottom bunk appellant asked, ADo you remember telling . . . Tammy from the Assessment Center you were actually on the top bunk?@ Further, appellant questioned L.G.=s mother about L.G.=s failure to give her certain details about the offense. Appellant also asked L.G.=s mother about her divorce from L.G.=s father and asked her whether it was hard on a child not having both parents around. Appellant also questioned L.G.=s father about the divorce and his recent remarriage. Specifically, he asked him whether it was difficult on a child when one of her parents remarried, and if this would cause a child to feel abandoned. Therefore, appellant attempted to show L.G. related facts to the CAC interviewer that were inconsistent with her testimony at trial, and she was motivated to lie because of her father=s remarriage and her desire to see her parents reunited. Accordingly, L.G.=s consistent statements in her videotaped interview were admissible to rebut appellant=s charge of recent fabrication and improper motive. See Dowthitt v. State, 931 S.W.2d 244, 263 (Tex. Crim. App. 1996). Accordingly, the trial court did not abuse its discretion in admitting the videotape.[2]
Prejudicial Nature vs. Probative Value
Appellant also contends the trial court abused its discretion in admitting the videotape because its prejudicial nature was substantially outweighed by its probative value. See Tex. R. Evid. 403. Relevant evidence must be excluded under Rule 403 when there is a clear disparity between the degree of prejudice of the evidence and its probative value. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). Rule 403 favors admission of relevant evidence and carries a presumption that it will be more probative than prejudicial. Id. In determining whether evidence is more probative than prejudicial, a trial court considers factors including (1) the inherent probative value of the evidence; (2) its potential to impress the jury in some irrational but indelible way; (3) the amount of time required by the proponent to develop the evidence; and (4) the proponent=s need for the evidence. Peters v. State, 93 S.W.3d 347, 351 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (citing Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002)).
L.G.=s credibility was contested at trial. During cross-examination of L.G., appellant=s counsel suggested that she had given the CAC interviewer a different version of the offense. Appellant=s counsel also implied that L.G. may have been motivated to lie by her father=s recent remarriage. The trial court could have reasonably concluded the videotape had probative value for rebuttal of appellant=s implications.
Appellant claims any probative value is substantially outweighed by the danger of unfair prejudice arising from L.G.=s Aemotional outburst@ on the videotape. Appellant claims L.G.=s crying injected an emotional aspect into the trial that did not otherwise exist. The videotaped interview lasted nearly forty minutes. At one point, L.G. was on the verge of tears. She continued talking until the interviewer left the room to get her a tissue. While the interviewer was gone, L.G. hugged a stuffed animal and took deep breaths. By the time the interviewer returned, she was calm again. This showing of emotion lasted one and a half minutes. L.G. was not, as appellant contends, sobbing; at no point was she unable to speak or continue with the interview.
We do not find L.G.=s limited display of emotions created or caused unfair prejudice that substantially outweighed the probative value of L.G.=s verbal responses and behavior depicted in the videotape. A>Unfair prejudice= does not, of course, mean that the evidence injures the opponent=s case C the central point of offering evidence. Rather it refers to >an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.=@ Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993) (quoting Goode, et al., Texas Practice: Texas Rules of Evidence: Civil and Criminal, ' 403.2 (1988), at 93). Accordingly, we cannot say the trial court abused its discretion in holding the probative value of the interview outweighed the danger of unfair prejudice. We overrule appellant=s second issue.
The judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Memorandum Opinion filed May 11, 2004.
Panel consists of Justices Fowler, Edelman, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Although appellant made these objections at trial, the State claims he has failed to preserve this issue for appeal. The State claims appellant is complaining only about the admission of the visual portion of the videotape which he did not specifically object to. However, contrary to the State=s contention, appellant is complaining about the admission of the audio portion of the videotape.
[2] Because we have concluded the statements were not hearsay, we need not address appellant=s contention that the statements were not outcry.