Opinion
06-23-00219-CR
03-15-2024
WARDELL LEMON, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: February 23, 2024
On Appeal from the 187th District Court Bexar County, Texas Trial Court No. 2020CR7353
Before Stevens, C.J., van Cleef and Rambin, JJ.
MEMORANDUM OPINION
Scott E. Stevens Chief Justice A Bexar County jury convicted Wardell Lemon of indecency with a child by contact,and the trial court sentenced him to ten years' imprisonment and assessed a $5,500.00 fine. In this appeal, Lemon asserts that the trial court erred in denying his motion for a mistrial regarding the child's punishment-phase testimony. Because Lemon did not preserve his complaint, we affirm the trial court's judgment.
Originally appealed to the Fourth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (Supp.). We are unaware of any conflict between precedent of the Fourth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
I. Background
During the guilt/innocence phase of the trial, M.K., the child, testified regarding her encounters with Lemon. After M.K. finished her testimony, her mother, A.L., testified. In her testimony, A.L. asserted that she had not had contact with M.K. for several years because either she was "blocked" or M.K. did not respond. At the close of the guilt/innocence phase, the jury found Lemon guilty of indecency with a child by contact.
We identify the child and her family members by initials. See TEX. R. APP. P. 9.10.
During the punishment phase of the trial, M.K. denied that A.L. had reached out to her for the previous two or three years and testified that her mother was "unblocked on iMessage" and "could message [her] at any time." On cross-examination, the following exchange occurred:
Q. [(By Lemon's counsel)] Good afternoon, [M.K.]. Real quick, you mentioned a little bit ago about the fact that your mom is unblocked on Instagram or some social media?
A. I said she's unblocked on iMessage, yes.
Q. Why did you mention that?
A. Because she claims that she tried to reach out to me multiple times and that she's blocked on everything. She's only blocked on Instagram.
Q. So let me ask you this: Where did you hear that?
A. She said it.
Q. When?
A When she was testifying.
Q. Were you in here when she was testifying?
A. No.
Q. So then who did you hear it from?
A. We watched.
Q. So you watched your mother's testimony?
A. When it was done, yeah.
Q. On what?
A. On YouTube.
The parties agree that the trial court made YouTube broadcasts during the trial.
After the jury was excused, Lemon orally moved for a mistrial because M.K. had watched A.L.'s guilt/innocence-phase testimony after M.K. had testified in that phase. The trial court sought to clarify the basis of Lemon's motion in the following exchange:
THE COURT: So the Defense is asking for a mistrial based upon the fact that this witness saw her mother's testimony after this witness had already testified; is that correct?
[BY LEMON'S COUNSEL]: That's correct, Your Honor.
THE COURT: So there is -- the Defense is not arguing that this witness violated the Rule that was invoked before her testimony; is that correct?
[BY LEMON'S COUNSEL]: That's correct, Your Honor.
THE COURT: All right. State.
[BY THE STATE]: Yes, Your Honor.
THE COURT: Any other argument?
[BY THE STATE]: I would just echo the concerns of the Court that this witness had already given their testimony at the time when the -- any possible testimony could have been watched from another witness. And the witness clearly said that the viewing of the testimony came after the guilt/innocence phase of trial.
The trial court denied the motion for a mistrial.
II. Lemon's Complaint Was Not Preserved
In Lemon's sole issue on appeal, he asserts that the trial court erred when it denied his motion for mistrial during the punishment phase. He argues that, since M.K. listened to A.L.'s testimony from the guilt/innocent phase before M.K. testified in the punishment phase, the trial court abused its discretion in denying a mistrial because M.K.'s punishment phase testimony contradicted A.L.'s guilt/innocence phase testimony.
"As a prerequisite to presenting a complaint for appellate review, the record must show the complaint was made to the trial court by timely objection." Villarreal v. State, 596 S.W.3d 338, 340 (Tex. App.-San Antonio 2019, pet. granted) (citing TEX. R. APP. P. 33.1(a)(1)). "To preserve error, a party must object and state the grounds for the objection with enough specificity to make the trial judge aware of the complaint, unless the specific grounds were apparent from the context." Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016) (citing TEX. R. APP. P. 33.1(a)(1)(A)). "The objection must be sufficiently clear to give the judge and opposing counsel an opportunity to address and, if necessary, correct the purported error." Id. (citing Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009)). "If a trial objection does not comport with arguments on appeal, error has not been preserved." Id. (citing Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996)); see Villarreal, 596 S.W.3d at 340.
During trial, Lemon moved for a mistrial when he learned that M.K. had listened to A.L.'s testimony from the guilt/innocence phase after M.K. testified in that phase. The trial court clarified with Lemon that he sought a mistrial because M.K. observed A.L.'s testimony after M.K. had testified. In the context of this trial, this could only have occurred during the guilt/innocence phase. Lemon then confirmed that he was not arguing that M.K. violated Rule 614 before her testimony in the punishment phase. The State's responsive argument also shows that it understood that Lemon's complaint concerned M.K.'s testimony in the guilt/innocence phase.
See Rule 614 of the Texas Rules of Evidence, which provides:
At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(d) the victim in a criminal case, unless the court determines that the victim's testimony would be materially affected by hearing other testimony at the trial.TEX. R. EVID. 614(d).
Nevertheless, on appeal, Lemon asserts that he was entitled to a mistrial because M.K. violated Rule 614 before her punishment phase testimony. This objection does not comport with the objection asserted at trial. As a result, Lemon did not preserve this issue for our review. See Thomas, 505 S.W.3d at 924; Villarreal, 596 S.W.3d at 340. We overrule Lemon's sole issue.
To the extent that this issue was preserved, Lemon is estopped to assert it. After the trial court denied Lemon's motion for a mistrial, it asked Lemon whether, in regard to M.K.'s punishment-phase testimony, it was "sufficient for Defense that the jury be given an instruction that they [were] to disregard any testimony from [M.K.] related to her mother's attempt to contact her?" Lemon answered, "Yes, Your Honor." The trial court then instructed the jury that it was to disregard any testimony by M.K. regarding whether, or how, A.L. had contact with her. Because Lemon affirmatively consented to the trial court's instruction, which was a lesser remedy that cured the problem short of a mistrial, Lemon is estopped to complain on appeal that the trial court erred in not granting a mistrial. See Druery v. State, 225 S.W.3d 491, 505-06 (Tex. Crim. App. 2007).
III. Conclusion
For the reasons stated, we affirm the trial court's judgment nunc pro tunc.