Summary
finding that the State's motion to amend, which contained the amended indictment language, coupled with the trial court's signed order granting this motion was sufficient to amend the indictment
Summary of this case from Martinez v. StateOpinion
No. 05-11-00674-CR
08-17-2012
ANDREW TOLIVER, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM;
On Appeal from the 397th Judicial District Court
Grayson County, Texas
Trial Court Cause No. CR-058932
OPINION
Before Justices O'Neill, Richter, and Francis
Opinion By Justice Richter
A jury convicted appellant, Andrew Toliver, of two counts of failing to comply with sex offender registration requirements, found the enhancement provisions to be true, and sentenced appellant to imprisonment for thirty years on both counts. In three issues, appellant: (1) argues the trial court erred in granting the State's motion to amend the indictment, (2) attacks the legal sufficiency of the evidence to support his conviction, and (3) complains that the trial court abused its discretion by admitting evidence regarding the underlying offense for which he was required to register as a sex offender. We affirm the judgment of the trial court. I. BACKGROUND
On May 23, 2008, appellant was released from the Texas Department of Corrections after serving a ten-year term of confinement for aggravated sexual assault of a child. On May 29, 2008, appellant reported to Detective Carney with the Denison police department to register his address as required. At that time, he indicated his place of residence was 431 W. Texas, Denison, Texas. According to the record, appellant was living with Gordon Tigue, Tigue's extended family, and several friends. Tigue was also a registered sex offender.
As part of the initial registration process, appellant signed a pre-release notification which detailed his duties to register as a sex offender. Detective Carney discussed each requirement with appellant who initialed each of the duties, indicating that he read and understood his registration duties. The notification provided that if he wanted to move to a new address, he was required to report his intention to move seven days prior to the move. Additionally, within seven days of moving to the new address, he was required to report in person to the local law enforcement authority of that jurisdiction and provide proof of identity and residence. According to the sex offender registration requirements applicable to appellant, he was required to appear in person within thirty days of his birthday to annually verify his address.
On May 22, 2009, appellant reported to Detective Carney for his annual verification. Appellant informed Detective Carney that several weeks earlier, he had moved to 22 Brushy Creek, Sherman, Texas. Although appellant had not notified Detective Carney seven days prior to moving to his new address as required, Detective Carney did not arrest him. However, Detective Carney instructed appellant to report to Investigator Craig with the Grayson County sheriff's department within seven days. Detective Carney also called Investigator Craig to let her know appellant had moved into her jurisdiction.
Investigator Craig gave appellant until May 26, 2009, to appear and register in person with the Grayson County sheriff's department. Appellant appeared two days late on May 28th, registered with the Grayson County sheriff's department, and gave his address as 22 Brushy Creek, Sherman, Texas. During their meeting, Investigator Craig explained all the registration rules. She specifically discussed the change of address requirement because appellant told her he might be moving to Whitewright, Texas within a week or two. Investigator Craig then contacted the landlord of the house at 22 Brushy Creek to verify that appellant was living there. The landlord did not know appellant and told Investigator Craig the house was not rented to appellant. Investigator Craig learned that the house at 22 Brushy Creek was leased to Tigue and his wife. Investigator Craig knew that the Tigues had moved from Denison to the house at 22 Brushy Creek in July 2008 because, in compliance with his sex offender registration requirements, Tigue had registered his new address with Investigator Craig on July 9, 2008.
On June 2, 2009, Investigator Craig went to the house at 22 Brushy Creek and upon talking to Mrs. Tigue, learned that appellant had moved there with them in July 2008. Mrs. Tigue told Investigator Craig that appellant no longer lived with them. She stated that in February 2009, appellant moved to 110 East College Street, Whitewright, Texas, with his girlfriend, Misty Jackson, and her teenage daughter. Investigator Craig contacted Sergeant Roberson with the Whitewright police department to let him know that a sex offender might be living in Whitewright.
After talking to Investigator Craig, Sergeant Roberson determined that on February 18, 2009, Misty Jackson moved into a duplex at 110 East College Street, Apartment 13, Whitewright, Texas, in public housing administered by the Bonham Housing Authority. Sergeant Roberson personally observed appellant's vehicle at the residence on numerous occasions, interviewed neighbors, and talked to Jackson. Jackson told Sergeant Roberson that appellant was her boyfriend and he lived with her part of the time, with his family in Mesquite part of the time, and in Greenville part of the time. On June 3, 2009, Sergeant Roberson called appellant and told him to come in and register with the Whitewright police department.
The Grayson County sheriff's department arrested appellant on June 3, 2009 for moving to 22 Brushy Creek without registering with the sheriff's department. The arrest sheet and booking sheet reflect appellant told the arresting officer that his home address was 110 College Street, Apartment 13, Whitewright, Texas. On June 6, 2009, having been released from jail, appellant appeared to register his new address with the Whitewright police department. Sergeant Roberson immediately arrested him for failure to register as a sex offender with the Whitewright police department within seven days of moving to 110 East College Street in Whitewright. Sergeant Roberson testified that appellant told him that he had been living at 110 East College Street, Whitewright, Texas eighty percent of the time. After appellant was released from jail the second time, he again appeared at the Whitewright police department and attempted to register his address as 110 East College Street. Sergeant Roberson told appellant he could not register at that address because the Bonham Housing Authority prohibited sex offenders from living in its public housing apartments.
A jury trial commenced on May 2, 2011. The trial court formally arraigned appellant by reading the second amended indictment in open court, to which appellant pleaded not guilty. Following a three-day trial, a Grayson County jury convicted appellant of two counts of failure to comply with sex offender registration requirements. He was sentenced, in separate verdict forms, to thirty years in each case. This appeal followed. II. APPLICABLE LAW
A person convicted of a "reportable conviction," including aggravated sexual assault of a child, must timely register with local law enforcement in any municipality in which he resides or intends to reside for more than seven days. Tex. Code Crim. Proc. Ann. arts. 62.001(5), (6), 62.051(a) (West Supp. 2011). A person required to register who intends to change his address must provide his anticipated move date and new address to the local law enforcement authority designated as his "primary registration authority" and to his parole officer. Id. art. 62.055(a) (West Supp. 2011). If he changes his address, he must register with local law enforcement in his new municipality or county. Id. Failure to comply with any of the registration requirements set out in chapter 62 is a felony offense. Id. art. 62.102 (West 2006). III. DISCUSSION
A. Amendment Of The Indictment
In his first issue, appellant complains that the trial court erred in granting the State's motion to amend the indictment by "converting it into two felony charges without returning it to the grand jury." Appellant first argues there were substantive defects in the second amended indictment that formed the basis of his conviction and second, he argues the procedure used to effect the amendment was improper.
According to the record, the original indictment alleged that on or about February 18, 2009, appellant failed to notify the Grayson County sheriff's office of his intent to move at least seven days prior to moving, and failed to register with the local law enforcement authority in Whitewright, where he resided or intended to reside for more than seven days. The original indictment did not designate "counts," but separated the allegations into numbered paragraphs: paragraph 1 pertained to the failure to notify the Grayson County sheriff's office of appellant's intent to move, and paragraph 2 pertained to the failure to register with local law enforcement authority in Whitewright within seven days.
On December 15, 2010, the State filed a motion to amend indictment, restating the language of the original indictment, and requesting that the State be allowed to: (1) change the offense date from February 18, 2009, to May 28, 2009; (2) add a new first paragraph alleging appellant's failure to register with the Denison Police Department; (3) modify language that appellant failed to notify the Grayson County sheriff's office of his intent to move at least seven days prior to moving to more broadly reflect appellant's failure to register with the Grayson County sheriff's office; and (4) amend language to allege the specific local Whitewright law enforcement authority with which appellant was required to register. The State's motion also included the proposed language of the amended indictment. The amended indictment was divided into three sections, but the sections were not labeled as "paragraphs" or "counts." The same day, the trial court signed a written order granting the State's motion to amend the indictment. The trial court's order did not reproduce the language of the original indictment; however, the order set forth the language of the entire indictment, as amended.
On April 20, 2011, appellant's attorney filed a motion to set aside the amended indictment. He asserted "the State had agreed to waive or abandon Count I of the Indictment, which alleges that Defendant violated the law by failing to register as a sex offender with the Denison Police Department." He complained that the amended indictment was defective because it failed to allege the date when appellant assumed residency in either Grayson County or Whitewright, Texas, thereby triggering his duty to register as a sex offender. He also argued that the wording of the amended indictment did not provide adequate notice as to the charges against appellant-whether appellant was charged with failure to notify the appropriate law enforcement agency of his intent to change his address prior to moving, or failure to register with the appropriate law enforcement agency after moving.
In response to appellant's motion to set aside the amended indictment, the State filed a second motion to amend the indictment on April 21, 2011. As proposed by the State, the second amended indictment would: (1) eliminate the paragraph alleging appellant's failure to register with the Denison police department, (2) expand the paragraph pertaining to Grayson County to include an allegation that appellant failed to report in person and failed to provide proof of identity and residence within seven days after changing his address, and (3) expand the paragraph pertaining to Whitewright to include an allegation that appellant failed to report in person and failed to provide proof of identity and residence within seven days after changing his address. The motion included the language of the proposed second amended indictment, designating appellant's failure to comply with registration requirements in Grayson County as Count I, and appellant's failure to comply with registration requirements in Whitewright, Texas as Count II.
No objection was made to the original indictment. While appellant filed a motion to set aside the first amended indictment, the trial court did not grant this motion and in response, the State requested a second amendment. The record does not contain a written order whereby the trial court granted the State's second motion to amend the indictment; however, the State refers us to the trial court's docket sheet set forth in the record which includes a handwritten notation that the motion to amend the indictment was granted on April 21, 2011. The two-count, second amended indictment was discussed during voir dire without objection by appellant. The indictment was presented to the jury and appellant entered a not guilty plea without objection. Further, appellant's counsel made no objection to the two-count charge presented to the jury at the conclusion of the first phase of the trial.
Citing Young v. State, appellant first asserts the charge with respect to Grayson County and the charge with respect to Whitewright allege different manner and means for committing a single offense of failing to comply with sex offender registration requirements. Young v. State, 311 S.W.3d 711, 715 (Tex. App.-Austin 2010), aff'd, 341 S.W.3d 417 (Tex. Crim. App. 2011). In Young, the defendant (a registered sex offender) moved but failed to notify local law enforcement of his intention to move seven days before his intended move, and failed to provide proof of identity and proof of his new residence no later than seven days after his move. Id. at 712. The court determined that the single offense of failing to report a change of address can be violated by failing to report the change in advance, afterwards, or both. Id. at 715.
The case before this court is distinguishable from the Young case. Young's failure to notify before his intended move and to register after his move involved a single move and a single change of address. Id. at 712. Here, appellant moved twice without complying with registration requirements. He first moved from Denison to a house in the country, located at 22 Brushy Creek in Sherman, Grayson County. Appellant was required to notify the Denison police department of his intended move, and provide the Grayson County sheriff's office with proof of his identity and address after the move. See Tex. Code Crim. Proc. Ann. art. 62.055. According to the record, appellant failed to timely report this change of address to 22 Brushy Creek in advance or afterwards. Appellant then moved to a new address, 110 East College Street, within the city limits of Whitewright, Texas. Appellant was required to notify the Grayson County sheriff's office of his intended move, and provide the Whitewright police department with proof of his identity and address after the move. Id. According to the record, appellant failed to timely report this second change of address in advance or afterwards. Because appellant moved twice without complying with registration requirements, appellant committed two separate and distinct offenses. See Young, 311 S.W.3d at 715; see also Villanueva v. State, 257 S.W.3d 527, 530 (Tex. App.-Austin 2008, no pet.).
Appellant also argues the trial court erred in rendering multiple judgments based on separate paragraphs in a single count. When the State wishes to charge multiple offenses in a single indictment, it is required by statute to set out each separate offense in a separate "count." Tex. Code Crim. Proc. Ann. art. 21.24 (West 2009); see Martinez v. State, 225 S.W.3d 550, 554 (Tex. Crim. App. 2007). Generally, a "count" is used to charge an offense and a "paragraph" is a portion or subset of a count charging a method of committing that offense. See Fowler v. State, 240 S.W.3d 277, 280 (Tex. App.-Austin 2007, pet. ref'd). However, mislabeling counts and paragraphs in an indictment does not change the result, so long as the mislabeling does not mislead the defendant and his attorney as to what was charged. See Riley v. State, 658 S.W.2d 818, 819 (Tex. App.-Fort Worth 1983, no pet.).
According to appellant, the original indictment consists of two paragraphs detailing the manner and means by which appellant allegedly violated article 62.055 when he moved from Grayson County to Whitewright, Texas. We agree that the language of the original indictment appears to charge appellant with manner and means of the single offense of failing to report his change in address in advance and after a single move from Grayson County to Whitewright, Texas. However, both the first and second amendments to the indictment charged appellant with failing to report his change of address for two separate and distinct moves. The first amendment expanded the indictment to broadly allege that while being a person required to register with the local law enforcement authority in the county where he resided or intended to reside, appellant failed to register with the Grayson County sheriff's office. Further, while being a person required to register with the local law enforcement authority in the county where he resided or intended to reside, appellant failed to register with the Whitewright police department. The first amendment also added a paragraph charging appellant with failure to register with the Denison Police Department; however, the State agreed to abandon this offense and did not include it in the second amendment to the indictment. The first amendment did not designate the paragraphs as "counts." However, it is apparent that appellant knew, or at least suspected, that the first amended indictment charged him with more than one offense because his motion to set aside the [first amended] indictment refers to the first paragraph [failure to register with the Denison Police Department] as Count I of the indictment. Complaining that the [first amended] indictment failed to provide adequate notice as to which portion of article 62.055 the State intended to pursue, appellant quoted the applicable statutory requirements and noted "both provisions contain a separate and distinct offense."
In response to appellant's motion to set aside the first amended indictment, the State filed a motion to amend the indictment to clarify the charges against appellant. The second amended indictment specifically labeled the charges as "Count I" and "Count II," and detailed the manner in which appellant failed to comply with registration requirements after moving to Grayson County and after moving to Whitewright, Texas. According to the docket notation in the record, the trial court granted the State's motion to amend ten days before trial. Although appellant had sufficient time within which to object or respond, he did not object to the second amended indictment, either before or during trial. Further, appellant pleaded not guilty to the second amended indictment without objecting to the indictment. Based on the record, we do not find that appellant or his counsel were misled regarding the charges in this case. See Riley, 658 S.W.2d at 819.
Appellant had an affirmative duty to object to any defect in the indictment before trial. Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005); Sanchez v. State, 120 S.W.3d 359, 364 (Tex. Crim. App. 2003). Therefore, because appellant did not object to a defect, error, or irregularity of form or substance in the second amended indictment before the date on which the trial commenced, he waived the right to object to the defect, error, or irregularity, and may not raise the objection for the first time on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b); Teal v. State, 230 S.W.3d 172, 177 (Tex. Crim. App. 2007).
Finally, appellant argues the indictment was not effectively amended. Appellant contends that a motion to amend coupled with the trial court's order granting the motion does not amend an indictment. Appellant argues the indictment was never amended, the original indictment will not sustain a conviction, and all counts should be dismissed. Relying on article 1.14(b) of the Texas Code of Criminal Procedure, the State argues appellant did not preserve error regarding amendment of the indictment. However, the requirement of an objection under article 1.14(b) applies only to a defect, error, or irregularity in an indictment, and not to procedural matters regarding that instrument. See Miller v. State, 909 S.W.2d 586, 592 (Tex. App.-Austin 1995, no pet.). Thus, appellant did not waive his objection to the procedure used to amend the indictment. Articles 28.10 and 28.11 of the Texas Code of Criminal Procedure provide the State with the opportunity to amend an indictment and supply the procedure to be followed for a successful amendment. Tex. Code Crim. Proc. Ann. arts. 28.10, 28.11 (West 2006). Article 28.10 provides:
[a]fter notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days . . . to respond to the amended indictment or information.Tex. Code Crim. Proc. Ann. art. 28.10(a). However, "[a]n indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced." Tex. Code Crim. Proc. Ann. art. 28.10(c). Although article 28.11 requires that all amendments of an indictment or information be made with the leave of the trial court and under its direction, the statute fails to specify the procedures to be followed to effectively amend a charging instrument. See Tex. Code Crim. Proc. Ann. art. 28.11.
Citing Ward v. State, appellant argues that neither the State's motion to amend nor the trial court's order granting such motion constitutes an amendment. See Ward v. State, 829 S.W.2d 787, 793 (Tex. Crim. App. 1992) (amendment requires actual alteration of the charging instrument). However, to the extent that Ward required actual alteration or interlineation of the charging instrument itself, Ward was overruled by Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000). In Riney, the Texas Court of Criminal Appeals determined that physical alteration of the charging instrument is not the exclusive method of accomplishing an amendment. Riney, 28 S.W.3d at 565. Instead, it is acceptable for the State to offer an amended version of the original indictment for the trial court's approval, and if approved, the amended version need only be incorporated into the record under the trial court's direction with the knowledge and affirmative assent of the defense. Id. at 566. Appellate courts have applied Riney's rationale in circumstances in which amendments were accomplished by means other than interlineation on a copy of the indictment. See Head v. State, 299 S.W.3d 414, 437-38 (Tex. App.-Houston [14th Dist.] 2009, pet. ref'd). This Court has interpreted Riney to allow "flexibility in amending indictments provided that the method of amendment employed produces an amended copy of the indictment incorporated into the record under the direction of the trial court sufficient to give the defendant fair notice of the charges." Harrison v. State, No. 05-07-00453-CR, 2008 WL 2514333, at *1 (Tex. App.-Dallas June 25, 2008, no pet.) (citing Riney, 28 S.W.3d at 565-66).
In this case, both of the State's motions contained a copy of the amended indictment language. The trial court signed an order granting the first motion, and granted the second motion during pretrial conference, ten days prior to trial. Although appellant filed a motion to set aside the first amended indictment, he did not move to quash the second amended indictment and the record does not show that he ever objected to the method of amendment used. Before trial, he affirmed to the trial court that he understood the charges against him. The State read the second amended indictment to the jury during appellant's formal arraignment, incorporating it into the record. Appellant did not object when the second amended indictment was read. Under the circumstances presented by this record, we conclude that the amendment of the charging instrument met the requirements of articles 28.10 and 28.11 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. arts. 28.10, 28.11; see also Riney, 28 S.W.3d at 565-66; Salazar v. State, No. 03-10-00757-CR, 2011 WL 4584938, at *6 (Tex. App.-Austin Sept. 28, 2011, no pet.) (mem. op., not designated for publication). We overrule appellant's first issue.
B. Sufficiency Of The Evidence
In his second issue, appellant complains that the evidence presented at trial was legally insufficient to support the jury's verdict. Specifically, appellant contends there was insufficient evidence to (1) prove he was living in Whitewright, Texas, and (2) intentionally or knowingly failed to report an address change. We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see Adames, 353 S.W.3d at 860. "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).
Investigator Craig testified that on May 28, 2009, appellant appeared to register with the Grayson County sheriff's department, giving his address as 22 Brushy Creek, Sherman, Texas. However, upon investigation, Investigator Craig learned that although appellant had moved to 22 Brushy Creek with the Tigues in July 2008, he no longer lived with them. Investigator Craig testified that Mrs. Tigue told her appellant moved to Whitewright with his girlfriend three or four months earlier. Investigator Craig told the jury that once she determined appellant had been living at 22 Brushy Creek for nine or ten months without registering his new address with the Grayson County sheriff's office, she requested a warrant for appellant's arrest.
The jury heard Sergeant Roberson's testimony that he personally observed appellant's vehicle at Misty Jackson's residence in Whitewright on numerous occasions, interviewed neighbors and witnesses, and showed them appellant's photograph. Sergeant Roberson testified that he also interviewed Jackson. Jackson told him that appellant was her boyfriend and lived with her part of the time, with his family in Mesquite part of the time, and in Greenville part of the time. Sergeant Roberson testified that when appellant appeared to register his new address with the Whitewright police department several days later, appellant told him that he had been living at 110 East College Street, Whitewright, Texas eighty percent of the time. Sergeant Roberson testified that after appellant was released from jail the second time, he again appeared at the Whitewright police department and attempted to register his address as 110 East College Street, Whitewright, Texas.
Kimberly Hobbs, the Identification Officer for the Grayson County sheriff's department, testified that an information arrest sheet and booking sheet are filled out by the arresting officer with personal information obtained from the arrested suspect. Hobbs testified that the information arrest sheet and booking sheet for appellant's June 3, 2009 arrest reflect that appellant stated that 110 College Street, Apartment 13, Whitewright, Texas, was the address of his residence. Hobbs further testified that the information arrest sheet and booking sheet for appellant's June 6, 2009 arrest also reflect his residence to be 110 College Street, Apartment 13, Whitewright, Texas.
Gordon Tigue, his wife, LaNelda Tigue, and their daughter, LaTasha Stovall testified that when they moved from Denison to 22 Brushy Creek, Sherman, Texas, in the summer of 2008, appellant moved with them. The jury heard that appellant lived with the Tigue family at 22 Brushy Creek for six to eight months and then he and Jackson moved to Whitewright, Texas.
Appellant's girlfriend, Misty Jackson, testified that she lived with the Tigues in Denison and moved with them to 22 Brushy Creek in May, 2008. She testified that appellant also lived with the Tigues in Denison and moved to 22 Brushy Creek at the same time. She testified that after she and her daughter moved to Whitewright in February or March, 2009, appellant would visit her and spend several nights a week with her. However, Jackson denied that appellant lived with her in Whitewright, testifying that he continued to live at 22 Brushy Creek with the Tigues. She also testified that sometimes he stayed in Dallas or Greenville. On cross-examination, Jackson admitted she told Sergeant Roberson that appellant stayed with her off and on. She admitted that appellant's mail was occasionally forwarded to her Whitewright address. She also admitted appellant often left either his car or his truck at her house.
It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Considering all the evidence in the light most favorable to the verdict, we conclude that the jury was rationally justified in finding guilt beyond a reasonable doubt and the evidence is sufficient to support appellant's conviction for failure to comply with sex offender registration requirements. See Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Appellant's second issue is overruled.
C. Admission Of Evidence Of Underlying Conviction
In his third issue, appellant argues the trial court abused its discretion in admitting evidence regarding the underlying offense for which appellant was required to register as a sex offender. Appellant asserts he timely and appropriately objected to testimony regarding the underlying offense of aggravated sexual assault of a child under rule 403 of the Texas Rules of Evidence. We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). We will uphold the trial court's ruling so long as it is within the zone of reasonable disagreement. Id.
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. Rule 403 allows for the exclusion of otherwise relevant evidence when "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. Because rule 403 favors admissibility of relevant evidence, it is generally presumed that relevant evidence will be more probative than prejudicial. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990).
If a party believes the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, it is his duty to object to the admission of that evidence. Montgomery, 810 S.W.2d at 389. In deciding how to rule on this objection, a trial court should consider its inherent probativeness; the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; the time the proponent needs to develop the evidence; and the proponent's need for the evidence. Id. at 389-90.
Here, the record reflects the State sought to introduce evidence of res gestae statements made by appellant to Sergeant Roberson and Inspector Craig, that he did not think he should have to register as a sex offender because the sex with his thirteen-year-old stepdaughter was consensual. The State argued such evidence was relevant to show appellant's casual attitude regarding sex offender registration requirements and appellant's intent to ignore them. Appellant's counsel made a general objection as to relevance but did not specifically cite to rule 403. The trial court overruled appellant's objection, stating the State would be allowed to make limited references to the evidence for purposes of showing motive or intent. The trial court expressly instructed appellant's counsel that he would need to make further objections if the State exceeded such limitations.
On appeal, appellant argues the evidence was introduced so the jury would hear that appellant had intercourse with his underage stepdaughter. He contends this was unfairly prejudicial and interfered with his right to a fair trial. There is nothing in the record to suggest the disputed evidence influenced the jury to decide the case on an improper basis. Nothing in the record indicates the disputed evidence confused or distracted the jury from the main issue. Appellant does not argue, and the record does not show, that presentation of the disputed evidence consumed an inordinate amount of time. Accordingly, we are unable to conclude the probative value of the limited evidence regarding the underlying offense was substantially outweighed by the danger of unfair prejudice. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
Finally, we note that the same evidence was admitted, without objection, during testimony by Sergeant Roberson and Investigator Craig. Both officers testified that appellant did not think he should be required to register as a sex offender because the sexual encounter with his stepdaughter was consensual. The record reflects that appellant made no objection to their testimony. To preserve error, appellant was required to continue to object each time the objectionable evidence was offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.-Fort Worth 2012, no pet.).
We conclude the trial court did not abuse its discretion by admitting the evidence of appellant's res gestae statements to Sergeant Roberson and Investigator Craig. We resolve appellant's third issue against him. IV. CONCLUSION
Having overruled appellant's issues, we affirm the trial court's judgment.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110674F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ANDREW TOLIVER, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00674-CR
Appeal from the 397th Judicial District Court of Grayson County, Texas. (Tr.Ct.No. CR- 058932).
Opinion delivered by Justice Richter, Justices O'Neill and Francis participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 17, 2012.
MARTIN RICHTER
JUSTICE