No. 01-06-00326-CR.
Opinion issued May 10, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 232nd District Court Harris County, Texas, Trial Court Cause No. 1028519.
Panel consists of Justices NUCHIA, HANKS, and BLAND.
GEORGE C. HANKS, Jr., Justice.
A jury convicted appellant, Dereskey Lashawn Hayden, of murder and assessed punishment at 20 years' confinement. Tex. Pen. Code Ann. § 19.02(b)(1),(2) (Vernon 2003). In her sole point of error on appeal, appellant argues that the trial court improperly excluded evidence during the punishment phase of trial that the complainant was a registered sex offender in the state of Minnesota. We affirm.
Background
In the early morning hours of May 27, 2005, Houston Police were dispatched to a location under the Pierce Elevated, where they found the body of the complainant, John Kimball. At the time of his death, the complainant was homeless and living under the Pierce Elevated. Appellant, who was also homeless and living under the Pierce Elevated, was charged with the complainant's murder. Evidence admitted during the guilt phase of appellant's trial, indicated that appellant stabbed the complainant following an alleged dispute over money. The complainant's daughter, Michelle Marshall, testified that the complainant had recently moved from Minnesota to Houston. She explained that, while the complainant had served in the Minnesota Guard, worked in a packaging plant for 45 years, and been a father to four children, he had progressively worsening problems with alcohol. Outside the presence of the jury, appellant elicited evidence that the complainant was a registered sex offender in the state of Minnesota. Specifically, Homicide Officer Martinez testified that, during his investigation of the murder, he learned that the complainant had been convicted of a sexual crime in Minnesota. Appellant sought to admit this evidence in order to rebut what she argued was a false impression created by the testimony of the complainant's daughter, that the complainant was a "nice guy." The trial court, however, excluded the evidence, and the jury convicted appellant of murder. During the punishment phase of her trial, appellant testified that she had been living under the Pierce Elevated for a little more than one week at the time of the complainant's death. She further testified that it was not uncommon for men who lived nearby to touch her and make comments about her. She indicated that, on one occasion, the complainant masturbated in front of her while another man sexually assaulted her. When she again offered the evidence of the complainant's sexual offender status, the trial court excluded the evidence for a second time. Appellant filed the instant appeal, challenging the trial court's exclusion of the evidence. Evidence of the Complainant's Character
In her sole issue, appellant argues that the trial court improperly excluded evidence, during the punishment phase of trial, that the complainant was a registered sex offender in the state of Minnesota. Specifically, appellant argues that this evidence was admissible (1) to rebut the false impression of the complainant's character created by the testimony of the complainant's daughter and (2) to bolster appellant's credibility. We disagree. The decision whether to admit or exclude evidence is committed to the trial court's sound discretion. Harris v. State, 152 S.W.3d 786, 793 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). We, thus, review the trial court's evidentiary ruling for an abuse of discretion. Id. As long as the ruling was within the zone of reasonable disagreement, we may not disturb it. Id. Appellant argues that evidence of the complainant's status as a registered sexual offender was admissible at punishment under article 37.07 of the Texas Code of Criminal Procedure, which provides that the State and defendant may offer evidence during the punishment phase of trial as to "any matter the court deems relevant to sentencing. . . ." Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon 2006). Relevance during the punishment phase of a non-capital trial is determined by what is helpful to the jury. Erazo v. State, 144 S.W.3d 487, 491 (Tex.Crim.App. 2004). The broad language of article 37.07, however, does not mean that anything and everything is admissible. Brooks v. State, 961 S.W.2d 396, 401 (Tex.App.-Houston [1st Dist.] 1997, no pet.) ("[T]he language 'any matter the court deems relevant to sentencing' does not mean that anything goes."). A. Admissibility to Rebut False Impression of Good Character
Appellant first argues that the evidence that the complainant was a sexual offender was admissible for the purpose of rebutting the false impression, created by the testimony of his daughter, that the complainant was "a nice guy." She further argues that this evidence is not impermissible "negative victim impact evidence," offered to show that, because he was a sexual offender, the complainant was a less valuable member of society. Rather, appellant urges that she should have been allowed to contradict the testimony presented by the complainant's daughter during the guilt/innocence phase that the complainant was a hardworking family man with evidence that he had become a sexual predator in his final years. We conclude, however, that this evidence falls within the category of impermissible "negative victim impact evidence." In Clark v. State, the defendant sought to introduce evidence that the victim was not a person of good character. 881 S.W.2d 682, 698-99 (Tex.Crim.App. 1994). The defendant offered the evidence at punishment on the grounds that the jury might find that the defendant was a greater threat to society if they believed he murdered a particularly valuable member of the community; whereas the jury might have placed less value on the victim's life if they knew her true character. Id. at 699. In dicta, the Court of Criminal Appeals disagreed with the defendant's logic "in suggesting that the decedent's behavior indicated that she was not a particularly valuable member of the community and that her life might have had more value had she been of a different character." Id. This logic was similarly disapproved of in other cases holding that evidence of the victim's bad character is inadmissible during punishment for the purpose of showing the victim was a less valuable member of society. See, e.g., Goff v. State, 931 S.W.2d 537, 554-56 (Tex.Crim.App. 1996) (holding that evidence of victim's homosexuality, offered under assumption that jury would consider a homosexual a less valuable member of society, was not relevant to appellant's background, character, or the circumstances of the crime and was, therefore, inadmissible during punishment in capital murder trial); Richards v. State, 932 S.W.2d 213, 215 (Tex.App.-El Paso 1996, pet. ref'd) (holding that evidence that victim was not "model citizen" was not relevant during punishment in murder trial). While appellant does not expressly rely on the same logic as the defendant in Clark in seeking admission of the evidence that the complainant was a sexual offender, in her briefing, she states that, "[i]f a victim's character does relate to 'moral guilt,' then surely it is important for the jury to have an accurate picture of the victim's character." Despite her argument that the evidence was admissible to rebut the impression that the complainant was "a nice guy," the evidence is essentially negative victim impact evidence, offered to show that the complainant was indeed not "a nice guy." Evidence of the complainant's status as a sexual offender was not admissible for this purpose. See Clark, 881 S.W.2d at 699. Appellant's argument is, therefore, without merit. B. Admissibility to Bolster Credibility
Appellant next argues that the evidence was admissible for the additional purpose of bolstering her credibility. Specifically, she argues that evidence of the complainant's "sexual perversion and general disrespect for the law added some weight" to her testimony about the murder. According to appellant, the complainant's sexual offender status made it "more likely that [he had] in fact [ ] been a willing spectator to a sexual assault upon [her]." The State argues, however, that appellant has waived this complaint. To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a). Because the trial court must have the first opportunity to rule on the complaint, the argument on appeal must comport with the trial objection. See Oles v. State, 965 S.W.2d 641, 643 (Tex.App.-Houston [1st Dist.] 1998), aff'd, 993 S.W.2d 103 (Tex.Crim.App. 1999). Where the argument on appeal and the trial objection are not the same, nothing is presented for appellate review. See id. As previously stated, appellant argued in the trial court only that the evidence of the complainant's status as a sexual offender was admissible to rebut the false impression that the complainant was a nice guy. On appeal, she now complains that the evidence was admissible for the purpose of corroborating her version of the events. Appellant's complaint in this Court does not comport with her objection in the trial court. The trial court was never afforded an opportunity to rule on appellant's complaint, and, as a result, nothing is presented for our review. Accordingly, we overrule appellant's sole point of error. Conclusion
We affirm the judgment of the trial court.