No. 01-04-00989-CR
Opinion issued November 10, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 994928.
Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
SAM NUCHIA, Justice.
A jury found appellant, Jeremy Adrian Beasley, guilty of the felony offense of sexual assault of a child and assessed punishment at 5 years community supervision. Appellant presents eight issues on appeal. In his first two issues, appellant asserts that the trial court erred in (1) admitting documents from the Children's Assessment Center ("CAC") as business records and (2) not allowing Appellant to make an offer of proof before the jury was charged. Finally, in issues three through eight, appellant argues that the trial court erred in excluding from evidence recordings and transcripts of a telephone conversation between the complainant's grandfather and Appellant. We affirm.
Specifically, appellant tried to introduce evidence of the tape or testimony of such in (1) the opening statement, (2) the testimony of appellant's wife, (3) a complete and redacted CD of the tape recorded conversation, and (4) a complete and redacted transcript of the tape recorded conversation.
BACKGROUND
In the summer of 2003, H.P., the fifteen year-old complainant, met appellant, a horse jockey and friend of H.P.'s family, at a racetrack in Dallas and developed a crush on him. The relationship progressed platonically, mostly via cell phone calls and "text-messaging" each other on their cell phones. Eventually, the text-messages became more intimate and sexually explicit. On January 2, 2004, H.P contacted appellant and asked him to pick her up at a friend's house. The couple stopped to get condoms, checked in at nearby hotel, and engaged in cunnilingus, fellatio, and sexual intercourse. At trial, prior to opening statements, appellant apprised the trial court that he wished to use a tape recorded conversation between appellant and the victim's grandfather in his opening statement. Appellant believed the tape showed a plot by H.P.'s family — also involved in the horse racing and jockey business — to extort him by threatening to press fabricated statutory rape charges in order to further the pecuniary interest of the victim's family. Thereafter, appellant attempted on three separate occasions to re-offer the tape recorded conversation; the trial court reiterated its ruling; and appellant noted his desire to make a "bill of exceptions" or offer of proof. Finally, just before the reading of the jury charge, this exchange occurred between appellant's trial counsel and the trial court: MR. ROSEN: Like to make the Bill now, Judge. THE COURT: Well, I can't let you do it now. We need to get on with the trial. I'll let you make it afterward, for as long as you need.
Immediately thereafter, the trial court reviewed the jury charge and then read it to the jury. After the jury began deliberations, appellant made his offer of proof. DISCUSSION
I. Admitting CAC Business Records In his first issue, appellant asserts that the trial court erred in admitting a report of a physician's examination of H.P. from the CAC as business records. To preserve error for appellate review, a defendant must make a specific objection in the trial court. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002); Tex.R.App.P. 33.1(a)(1)(A). The point or error on appeal must comport with the specific objection made at trial. Wilson, 71 S.W.3d at 349. An objection stating one legal basis may not be used to support a different legal basis on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990). The Court of Criminal Appeals recently reiterated the policy underlying these requirements: The generally acknowledged policies of requiring specific objections are two-fold. First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony. Stated more broadly, objections promote the prevention and correction of errors. When valid objections are timely made and sustained, the parties may have a lawful trial. They and the judicial system are not burdened by appeal and retrial. When a party is excused from the requirement of objecting, the results are the opposite. Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004) (internal citations and quotation marks omitted). At trial, after the State offered the CAC physician's report as a business record, appellant stated the following grounds for his objection: (1) the report was hearsay and, in any event, the State had not laid the proper predicate for the business records exception to the hearsay rule; and (2) it violated the Confrontation Clause of the Sixth Amendment because he had the right to "cross-examine and confront witnesses against me." The trial court overruled the objection and admitted the evidence. A. The Hearsay Objection On appeal, appellant contends that the CAC physician's report does not fall under business records exception because the report was prepared in anticipation of litigation. See Freeman v. Am. Motorists Ins. Co., 53 S.W.3d 710 (Tex. App — Houston [1st Dist.] 2001, no pet.) (reaffirming that records made in contemplation of legal proceedings are not "regularly kept" records for purposes of Rule 803(6)). See Tex. R. Evid. 803(6). Generally a hearsay objection is sufficiently precise to preserve error on appeal. Long v. State, 800 S.W.2d 545 (Tex.Crim.App. 1990) (holding that even a general objection will not waive error if complaint is obvious); see also Cofield v. State, 891 S.W.2d 952, 954 (Tex.Crim.App. 1994) (identifying challenged evidence as hearsay should generally be regarded as sufficiently specific objection); Lankston v. State, 827 S.W.2d 907, 910 (Tex.Crim.App. 1992) (holding same). However, this general rule is qualified by the admonition that the complaint "in the context of the record" must have been "obvious to the trial court and the State." Long, 800 S.W.2d at 548; see also Cofield, 891 S.W.2d at 954 (stating that from facts it was "obvious that the trial court and the parties were well aware that the evidence was being proffered as an exception to the hearsay rule as a statement against the passenger's penal interest"); Lankston, 827 S.W.2d at 910 (stating that it is "clear from context that both judge and prosecutor understood Appellant's objection to be a complaint about testimony not falling within the statutory hearsay exception for `outcry' witnesses"). The state offered the CAC report under the business records exception, and appellant objected to the report as hearsay; however, he did not apprise the trial court of the issue he now argues on appeal — that the report was prepared in anticipation of litigation. Appellant's most specific statements as to the report were to point out the requirement for a business records affidavit and also an objection on Confrontation Clause grounds, an issue we take up in the following section of this opinion. Appellant's simple hearsay objection was not enough to make it obvious to the trial court and the State that he wished to obtain a ruling on whether the report was prepared in anticipation of litigation. Cofield, 891 S.W.2d at 954. Appellant therefore, on this issue, presents nothing for us to review. B. Confrontation Objection Appellant further contends on appeal that the admission of the CAC's medical report violated his Sixth Amendment right to confrontation. That is, appellant states that the "[medical doctor] was an agent for the Humble Police Department, conducing [sic] portions of an investigation into an allegation of criminal conduct." However, this sub-issue regarding the admission of the CAC's records into evidence suffers from the same defect as the hearsay objection. Appellant's objection at trial was simply that he had a right of confrontation as to the doctor who prepared the CAC report. To have properly preserved this issue for appeal, appellant had to state the specific objection he now asserts before this Court. Wilson, 71 S.W.3d at 349. Appellant did not do so; therefore, on this count, he presents nothing for us to review. II. Offer of Proof
Appellant next contends that the trial court erred in refusing to allow trial counsel to make an offer of proof. Texas Rule of Evidence 103(b) clearly states that the offering party must make its offer of proof "before the court's charge is read to the jury." Tex. R. Evid. 103(b). It is of no significance that the trial court stated that it would let appellant make his offer of proof "afterward." It was defense counsel's responsibility insist on his right to make an offer of proof before the jury was charged. Furthermore, this is not a case in which the trial court made an absolute refusal to allow appellant to make an offer of proof. Cf. Spence v. State, 758 S.W.2d 597 (Tex.Crim.App. 1988) (holding that trial court's refusal to permit counsel to make offer of proof constituted reversible error). Nor is this a case in which appellant objected to the trial court's actions in failing to allow him to present his offer of proof prior to the reading of the charge. Id. The trial court did let him make his offer of proof, albeit at the incorrect time. Because appellant did not lodge his objection before the charge was read to the jury, the error is waived. III. Exclusion of Blackmail Evidence
In issues three through eight, appellant complains that the trial court erred in excluding, in a variety of forms, evidence of a tape recorded conversation purporting to show an attempt to blackmail appellant. Appellant asserts that the exclusion of this evidence violated his Sixth Amendment constitutional rights, which ensure every criminal defendant "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146 (1984). That is, appellant avers, trial counsel's theory of the case was based wholly on the inclusion of the blackmail evidence to prove that H.P. was coerced by her family into fabricating the statutory rape allegation for H.P.'s family's financial gain, and its exclusion precluded him from presenting a meaningful defense. The appropriate standard of review for determining whether a trial court's decision to exclude evidence rises to a constitutional violation was set forth by the Court of Criminal Appeals in Potier v. State, 68 S.W.3d 657, 665 (Tex.Crim.App. 2002). The Court held that the "exclusion of a defendant's evidence will be constitutional error only if the evidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." Id. As a preliminary matter, however, we must determine whether the trial court erred in excluding the evidence for lack of relevancy. If the trial court's evidentiary ruling was correct, no constitutional error need be considered. We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App. 1990). We will not reverse a trial judge whose ruling was within the "zone of reasonable disagreement." Id. at 391. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. "Relevancy is not an inherent characteristic of any item of evidence but exists as a relation between an item of evidence and a matter properly provable in the case." Montgomery, 810 S.W.2d at 375 (citing Advisory Committee's Note to Fed.R.Evid. 401). "Accordingly, courts must examine the purpose for which the evidence is offered and whether there is a direct or logical connection between the evidence and the proposition sought to be proven." Garza v. State, 18 S.W.3d 813, 822 (Tex.App.-Fort Worth 2000, pet. ref'd). It is well-established that where the crime charged is statutory rape (codified as sexual assault of a child), the only issue is whether a prohibited sexual act occurred. See McKinney v. State, 505 S.W.2d 536 (Tex.Crim.App. 1974) (holding that where offense of statutory rape is concerned, consent of victim or her failure to report crime for a month is immaterial); Jobe v. State, 401 S.W.2d 247 (Tex.Crim.App. 1966) (holding that consent of 13 year old victim no defense to statutory rape charge); Purifoy v. State, 293 S.W.2d 663 (Tex.Crim.App. 1956) (holding that offense of statutory rape is complete without regard to female's consent). Therefore, the blackmail tape necessarily had to be offered to prove that H.P. and her family were engaged in a conspiracy to fabricate a statutory rape charge for H.P's family's pecuniary benefit because the only possible relevant purpose was to show the statutory rape never occurred. Given this, appellant argues, as he must, "at the heart of [appellant's] defense, Appellant attempted to show [via the introduction of the blackmail evidence] complainant's motive to lie" and attack her credibility. However, appellant's trial counsel conceded to the trial court that H.P. was not directly involved in the conversation, nor was she part of the blackmail scheme. Accordingly, appellant has failed to establish "a direct or logical connection between the evidence and the proposition sought to be proven." Garza, 18 S.W.3d at 822. That is, if H.P. was not, as appellant himself acknowledged, involved in the blackmail scheme then the blackmail evidence fails to have any "direct or logical connection" as to her motive to lie or her credibility concerning whether statutory rape occurred. Id. To put it another way, appellant cannot on appeal impute to H.P. the nefarious motive to claim a sexual assault which did not happen, but at trial — because it served his temporal trial strategy — argue that she was never a part of the scheme to begin with. Because the "trial court has considerable discretion as to how bias is proven and as to what collateral evidence can be introduced for that purpose" and appellant failed to provide the trial court with a "direct and logical connection between the evidence and proposition sought to be proved," we hold that the trial court did not abuse its discretion in excluding the blackmail evidence and therefore overrule appellant's issues three through eight. Trinh v. State, 930 S.W.2d 214, 219 (Tex.App.-Fort Worth 1996, pet. ref'd); Garza, 18 S.W.3d at 22. CONCLUSION
We affirm the judgement of the trial court in all respects.