Opinion Issued November 6, 2003

29 Nov

Opinion Issued November 6, 2003

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In The

Court of Appeals

For The

First District of Texas


NO. 01-02-00593-CR


CARLOS COY, Appellant

V.

THE STATE OF TEXAS, Appellee


On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 908426


MEMORANDUM OPINION

Appellant Carlos Coy was charged with aggravated sexual assault of a child. The jury found appellant guilty and assessed punishment at 45 years confinement and a fine in the amount of $10,000. We affirm.

In eight points of error, appellant complains about the following: (A) the prosecutor’s closing arguments; (B) certain testimony by a police officer; (C) certain testimony by the State’s expert; and (D) the refusal of the trial judge to quash the indictment.

Background

In September 2001, the then nine-year-old complainant told her mother about sexual acts appellant had performed on her. The mother took her daughter to the authorities, who began an investigation of the complainant’s allegations. The evidence at trial showed that appellant’s daughter had invited the complainant to spend the night at appellant’s home on September 1, 2001. Both children were watching television in appellant’s bedroom when appellant entered the room and began watching television with the children. While sitting on the bed, appellant inappropriately touched and rubbed her. After this incident, the complainant left appellant’s bedroom.

The children eventually entered the daughter’s bedroom. Both children climbed into bed and began watching television. After appellant’s daughter fell asleep, appellant entered the room, sat on the bed, reached under the covers, and again inappropriately touched her. Eventually, appellant sexually assaulted the complainant by causing her sexual organ to come into contact with his mouth. The complainant testified that appellant persisted in this conduct for approximately one minute.

The complainant did not, after this incident, stay overnight at appellant’s home as was originally planned, but returned home. The following morning, she informed her mother what occurred at appellant’s home, and the authorities were contacted to investigate the incident.

Points of Error One, Two, and ThreeIn his first three points of error, appellant contends that the trial court erred when it overruled his objections to the prosecutor’s statements in closing argument. In his first point of error, appellant complains about the following statement:

I don’t know what that has to do with anything. That’s just another thing that they’re putting out there hoping that one of you buys it. That’s all they have to do, one of you thinks there’s any credibility to any of these crazy theories. Because they don’t want you to look at the evidence and the truth. Our job as prosecutors is to seek the truth. That’s not his job. His job is to represent Carlos Coy.

Appellant’s objection in the trial court to the above statements was: “Your Honor, I’m going to object. My job is the same as theirs.” In his second point of error, appellant contends that the trial court erred when it refused to sustain his objection to the prosecutor’s statement in closing argument that “His job is to represent Carlos Coy, keep him from going to jail. That’s what he gets paid to do. [The other prosecutor] and I get paid – -”. Appellant’s objection in the trial court to these statements was: “I’m going to object, Your Honor, the State of Texas gets paid just like I do. Improper argument.” In his third point of error, appellant contends that the trial court erred when it overruled his objection to the prosecutor’s statements in closing argument that “[The other prosecutor] and I get paid to prosecute people who abuse children. And I can tell you we’ve got enough work to do without having to manufacture a case. We don’t care that he’s a rapper or a musician.” Appellant’s objection in the trial court to the above statements was: “Your Honor, I’m going to object. [The prosecutor’s] personal feelings are improper.” On appeal, appellant contends that these statements are outside the record, manifestly improper, and prejudicial.

An objection at trial must correspond with the argument on appeal, and this Court may not consider grounds not raised before the trial court. State v. Romero, 962 S.W.2d 143, 144 (Tex. App.—Houston [1st Dist.] 1997, no pet.). If the objection at trial does not correspond with the argument on appeal, error is not preserved and the objection is waived. Id. Appellant’s objections to the prosecutor’s argument during trial do not conform to his argument on appeal. The error, if any, is waived.

We overrule appellant’s first three points of error.

Point of Error Four

In his fourth point of error, appellant contends that the trial court erred when it refused to sustain his objection to testimony from Officer Ruiz, the lead police investigator, that the complainant made outcry statements to another non-testifying witness. The following exchange took place in the trial court:

[Prosecutor]: Okay. And from what [the complainant] told Fiona [Stevenson], was that consistent with what she had told you just three days before?

[Defense Counsel]: Objection, Your Honor, hearsay.

[The Court]: Overruled. You may answer that question? [sic]

[Officer Ruiz]: It was absolutely consistent with everything that [the complainant] told me.

Appellant urges that this statement constituted hearsay and does not comply with Article 38.072 of the Texas Code of Criminal Procedure. The State does not dispute that the requirements of Article 38.072 of the Texas Code of Criminal Procedure were not satisfied. It argues that admission of the statements was harmless because the State had previously, without objection, introduced evidence that proved the same facts.

At the time the trial court ruled on the admissibility of the disputed testimony, the jury had already heard the complainant testify, without objection, that she had been interviewed at the police station by Officer Ruiz and that she told Ruiz in the interview that appellant touched and licked her. The complainant also testified that she was interviewed at the Children’s Assistance Center, and, that during this interview, she informed the interviewer that appellant touched and licked her, and described the location on her body where appellant had touched and licked her. Officer Ruiz testified that she was present at that interview, which was conducted by Fiona Stevenson.

“It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence.” Jensen v. State, 66 S.W.3d 528, 535 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). Any error regarding the improper admission of the disputed testimony was rendered harmless because the same facts were proven by the complainant’s properly admitted testimony. We overrule appellant’s fourth point of error.Point of Error Five

In his fifth point of error, appellant contends the trial court erred by allowing the State’s expert, Susan Szczygielski, to testify that she did not see the complainant exhibit any signs of coaching. The State argues that appellant waived error because (1) defense counsel stated prior to the Daubert Footnote Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-95, 113 S. Ct. 2786 (1993).

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