NO. 12-11-00314-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
TOMMY LEE LEWIS, § APPEAL FROM THE 8TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § RAINS COUNTY, TEXAS
MEMORANDUM OPINION
Tommy Lee Lewis appeals his conviction for aggravated sexual assault of a child, for which
he was sentenced to imprisonment for ten years. His sentence was suspended and he was placed on
community supervision for ten years. In one issue, Appellant argues that the trial court erroneously
admitted harmful hearsay testimony. In its cross-appeal, the State argues that the trial court was not
authorized to place Appellant on community supervision. We affirm.
BACKGROUND
Appellant was charged by indictment with, among other things, aggravated sexual assault of
his twelve-year-old stepsister, B.S. Appellant pleaded “not guilty,” and the matter proceeded to a
jury trial.
At trial, the court permitted, over Appellant‟s hearsay objection, the testimony of Kim
Bassinger, a Sexual Assault Nurse Examiner (SANE). Ultimately, the jury found Appellant “guilty”
of aggravated sexual assault as charged, assessed Appellant‟s punishment at imprisonment for ten
years, and recommended that Appellant be placed on community supervision. In accordance with
the jury‟s recommendation, the trial court sentenced Appellant to imprisonment for ten years,
suspended the sentence, and placed Appellant on community supervision for ten years. This appeal
followed.
BASSINGER’S TESTIMONY
In his sole issue, Appellant argues that the trial court erred in overruling his hearsay objection
to Bassinger‟s testimony concerning what B.S. said to her in conjunction with her examination of
B.S.
The admission of evidence is a matter within the discretion of the trial court. Jones v. State,
111 S.W.3d 600, 606 (Tex. App.–Dallas 2003, pet. ref‟d). Accordingly, we review the trial court's
admission of evidence under an abuse of discretion standard. Id. As long as the trial court‟s ruling
was within the “zone of reasonable disagreement,” there is no abuse of discretion, and we must
uphold the ruling. Id.
Under Texas law, “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.” Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). A proper objection is
one that is specific and timely. Id. “Further, with two exceptions, the law in Texas requires a party
to continue to object each time inadmissible evidence is offered.” Id. The two exceptions require
counsel to either (1) obtain a running objection, or (2) request a hearing outside the presence of the
jury. Id.
Here, Appellant objected at the outset of Bassinger‟s testimony as follows:
Your Honor, at this time, I'd object to any testimony she might have because I think she's going
into what will be hearsay testimony, and under, what's that, 803(C), medical testimony, what she's
testified to is that she's a SANE nurse examiner, and a SANE nurse examiner is a certification by the
Attorney General's office saying that she's been trained to gather evidence to sexual assault cases. In this
situation, there is no evidence at this point that the child knew or should have known that the evi- -- the
words that she was saying to this nurse were needed for the treatment of any illness or injuries that she
might have sustained and that, as a SANE nurse examiner, she is not tested or qualified, because what
she's doing is acting as her function as a police officer to gather evidence, and that's the primary purpose
of the SANE nurse examiner is to gather evidence, and that's what I think she's fixing to get into. So, the
medical treatment as an exception to the Hearsay Rule is not valid in this case, and I'd ask that we have
a hearing outside the presence of the jury before she gets into any evidence of that type.
The trial court overruled Appellant‟s objection and granted him a running objection “on the issue.”
Thereafter, Bassinger testified about certain hearsay statements made to her by B.S. in which B.S.
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described what happened to her in sexually explicit detail. In several of these statements, B.S.
referred to her “VJJ” or Appellant‟s “thing.”
The State sought to admit its Exhibit 2, a diagram of the female anatomy, on which B.S. had
indicated to Bassinger the female body part to which she was referring with the term “VJJ.”1 The
State further sought to admit its Exhibit 3, a diagram of the male anatomy, on which B.S. had
indicated to Bassinger the male body part to which she was referring with the term “thing.” Finally,
the State sought to admit its Exhibit 4, the Sexual Assault Forensic Examination Form Bassinger used
in conjunction with her examination of B.S. With regard to each of these exhibits, Appellant
expressly stated that he had “no objection” to their admission. Exhibit 4 set forth the “History of
Assault,” which was essentially a summary of the hearsay statements of B.S. that Bassinger had
recounted in her testimony.
When a defendant affirmatively states that he has “no objection” to proffered evidence, he
waives any error in its admission. See Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim. App.
2008). Thus, the affirmative acceptance of previously challenged evidence waives any error in its
admission. See Swain v. State, 181 S.W.3d 359, 368 (Tex. Crim. App. 2005); Moody v. State, 827
S.W.2d 875, 889 (Tex. Crim. App. 1992) (statement of “no objection” to offered evidence waives
claim to inadmissibility of challenged evidence).
In the instant case, because the trial court granted his running objection, Appellant was not
required to object to each instance of Bassinger‟s testimony concerning B.S.‟s statements to her. See
TEX. R. EVID. 103(a)(1); White v. State, 784 S.W.2d 453, 458 (Tex. App.–Tyler 1989, pet. ref‟d) (“In
Texas, the term „running‟ objection or „continuing‟ objection apparently arose as shorthand
nomenclature for the traditional rule that a party whose objection to the admission of evidence is
overruled need not repeat the objection when other similar evidence is offered by his adversary; the
party may instead assume that the trial judge will make the same ruling on an identical subsequent
objection”). Even if we assume arguendo that the trial court‟s granting Appellant‟s running
objection relieved him of having to object to the State‟s exhibits containing B.S.‟s statements, when
Appellant expressly stated that he had “no objection” to these exhibits, he waived any error in their
1
On the exhibit, the term “VJ” is noted. Bassinger testified concerning this exhibit as follows: “I asked her,
when she said "VJJ," to point on the diagram what part of her body she was talking about. She pointed right there and
said, “That's my VJ” or “VJJ.”
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admission and the statements contained therein. See Holmes, 248 S.W.3d at 200; Swain, 181
S.W.3d at 368; Moody, 827 S.W.2d at 889. Appellant‟s sole issue is overruled.
UNAUTHORIZED ORDER OF COMMUNITY SUPERVISION
In its sole issue in its cross-appeal, the State argues for the first time on appeal that the trial
court was not authorized to place Appellant on community supervision because he was convicted of
aggravated sexual assault of a child under age fourteen. See TEX. CODE CRIM. PROC. ANN. art. 42.12
§§ 3g(a)(1)(E), 4(d)(5) (West Supp. 2012); see also TEX. PENAL CODE ANN. § 22.021 (West Supp.
2012).2
The State cites Texas Code of Criminal Procedure, Article 37.10(b) in support of its
contention that this court should reform the trial court‟s judgment by deleting the portion placing
Appellant on community supervision for ten years, leaving only the sentence of imprisonment for ten
years. Article 37.10(b) states as follows:
If the jury assesses punishment in a case and in the verdict assesses both punishment that is
authorized by law for the offense and punishment that is not authorized by law for the offense, the court
shall reform the verdict to show the punishment authorized by law and to omit the punishment not
authorized by law. If the trial court is required to reform a verdict under this subsection and fails to do
so, the appellate court shall reform the verdict as provided by this subsection.
TEX. CODE CRIM. PROC. ANN. art. 37.10(b) (West 2006). In addressing what it perceived as a
potential counterargument from Appellant that the trial court‟s error renders his sentence illegal or
void, the State cites Ex parte Williams, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001) for the
proposition that an unlawful grant of community supervision does not constitute an illegal or void
sentence. Id. In reaching its conclusion, the court in Williams stated, in pertinent part, as follows:
“In Speth v. State,3 we explained that „community supervision is not a sentence or even a part of a
sentence.‟ [citation omitted]. Because of this, the illegal granting of community supervision should
not be governed by a rule which applies to illegal sentences.” Williams, 65 S.W.3d at 657.
In State v. Enriquez, 47 S.W.3d 177 (Tex. App.–El Paso 2001, no pet.), the court considered
an issue similar to the issue before us. There, the State challenged the trial court‟s assessment of
2
We note that the State made no objection to the trial court‟s charge on punishment and, further, discussed the
issue of community supervision in its argument to the jury.
3
6 S.W.3d 530 (Tex. Crim. App. 1999).
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punishment placing the appellant on community supervision because the trial court was not
authorized to grant community supervision to the appellant since the jury had made a deadly weapon
finding. Id. at 178; see TEX. CODE CRIM. PROC. ANN. Art. 42.12 § 3g(a)(2) (West Supp. 2012). The
court of appeals disagreed with the State‟s contention, and, relying primarily on Williams and Speth,
stated as follows:
Generally, when a punishment is not authorized by law, the sentence imposing that
punishment is void. A punishment unauthorized by law refers to punishments assessed that, on their
face, were not within the realm of punishments applicable to the particular offense. The Texas Court
of Criminal Appeals has recently held, however, that an unauthorized probation order does not
constitute an illegal sentence. In Ex parte Williams, the [c]ourt reiterated its position in Speth v. State,
that “community supervision is not a sentence or even a part of a sentence.” Thus, the illegal granting
of community supervision is not governed by a rule which applies to illegal sentences.
Enriquez, 47 S.W.3d at 178–79 (citations omitted). The court concluded that the trial court‟s
community supervision order did not constitute an illegal or void sentence and that the State could not
complain for the first time on appeal that the community supervision order was unauthorized. Id. at
179.
In Wiley v. State, 112 S.W.3d 173 (Tex. App.–Fort Worth 2003, pet. ref‟d), the court
discussed Williams extensively. The court noted that “the court of criminal appeals has
unequivocally held that a trial court‟s order granting [community supervision], even to a statutorily
ineligible defendant, is not a „sentence‟ and therefore cannot be an illegal or void sentence.” Id. at
175. The court concluded that, applying Williams, “as it must,” it was “clear that the [community
supervision] order entered in [the appellant‟s] prior felony case for sexual assault of a child did not
constitute a void or illegal sentence.” Id. at 176.
In the instant case, in accord with the jury‟s recommendation, the trial court placed Appellant
on community supervision when it lacked statutory authority to do so. However, we cannot, as the
State argues, employ Article 37.10(b) to reform the trial court‟s judgment to reflect the punishment
authorized by law and to omit the punishment not authorized by law. 4 See Williams, 65 S.W.3d at
4
A “sentence” is the “part of the judgment that orders that the punishment be carried into execution.” TEX.
CODE CRIM. PROC. ANN. art. 42.02 (West 2006). Thus, it is logical to conclude that if punishment is part of a sentence
and community supervision is not, then community supervision cannot be part of punishment. See id.; Williams, 65
S.W.3d at 657. Since Article 37.10(b) concerns reformation of verdicts containing unauthorized punishment and
community supervision is not part of punishment, the trial court‟s granting of community supervision is not governed by
Article 37.10(b). Cf. Williams, 65 S.W.3d at 657; Enriquez, 47 S.W.3d at 179.
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657. Accordingly, we hold that the trial court‟s community supervision order did not constitute an
unauthorized sentence or punishment. See id.; Enriquez, 47 S.W.3d at 179. The State‟s cross-issue
is overruled.
DISPOSITION
Having overruled Appellant‟s sole issue as well as the State‟s sole cross-issue, we affirm the
trial court‟s judgment.
BRIAN HOYLE
Justice
Opinion delivered March 6, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NO PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 6, 2013
NO. 12-11-00314-CR
TOMMY LEE LEWIS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 8th Judicial District Court
of Rains County, Texas. (Tr.Ct.No. 5057)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
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Tommy Lee Lewis v. State
Combined Opinion