Opinion
No. 10-06-00018-CR
Opinion delivered and filed November 15, 2006. DO NOT PUBLISH.
Appeal from the 40th District Court, Ellis County, Texas, Trial Court No. 29475CR. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Appellant, Michael Weaver, was convicted of aggravate sexual assault of a child and sentenced to life in prison. Weaver raises two issues on appeal.
Rule of Optional Completeness
In his first issue, Weaver relies on Rule of Evidence 107 for the argument that the trial court erred in redacting a portion of his statement after it had been admitted in its entirety. See TEX. R. EVID. 107. The standard of review for a trial court's ruling under the rules of evidence is abuse of discretion. Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App. 1998). The State offered Weaver's statement into evidence and read the majority of it to the jury. The prosecutor failed to read the last sentence of the statement which stated the following: "I am willing to take a polygraph test." Weaver did not object or invoke the rule of optional completeness at that time. Later, outside the presence of the jury, the trial court asked whether the prosecutor and defense counsel wanted to redact that sentence from the statement. The prosecutor stated that it was his intention to redact it but Weaver wanted to "leave it in." The trial court ordered the sentence redacted from the statement. At that time, Weaver objected "to the entry of the statement in anything other than its full entirety as it was tendered." Under Rule 107, the rule of optional completeness, "[w]hen part of [a] . . . writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence. . . ." Id. This rule was designed to correct any misleading impressions left with the jury when only a portion of evidence is introduced. See Lomax v. State, 16 S.W.3d 448, 450 (Tex.App.-Waco 2000, no pet.). There are two threshold requirements for the application of the rule. First, some portion of the matter sought to be "completed" must have actually been introduced into evidence. Washington v. State, 856 S.W.2d 184, 186 (Tex.Crim.App. 1993). Second, the party seeking to complete the matter must show that the remainder being offered under Rule 107 is on the same subject and is necessary to fully understand or explain the matter. Mendiola v. State, 61 S.W.3d 541, 545 (Tex.App.-San Antonio 2001, no pet.). Weaver failed to meet the second requirement. He made no attempt to introduce the remainder of the statement and he failed to show why it was necessary to admit the entire statement to explain the portion read by the State. Further, evidence concerning a polygraph examination is inadmissible for all purposes. See Tennard v. State, 802 S.W.3d 678, 683 (Tex.Crim.App. 1990). Because Weaver failed to meet the requirements of Rule 107 and the evidence he sought to introduce was inadmissible, we find that the trial court did not err in admitting Weaver's statement in its redacted form. Accordingly, we overrule his first issue.Business Records Predicate
In his second issue, Weaver argues that the trial court erroneously admitted the medical report prepared by Dr. Ann Sims because the State did not establish the proper predicate for the business records exception. See TEX. R. EVID. 803(6). Dr. Sims testified that she performed a physical examination of S.N., the child allegedly assaulted by Weaver. Before offering the report into evidence, the prosecutor asked Dr. Sims the following questions:Q: Showing you what's been previously marked as State's Exhibit 8. This is a two page document. Do you recognize that document?
A: Yes, I do.
Q: What is that document?
A: This is my formal report of what information that I have obtained.
Q: Okay. And when did you prepare this report?
A: Right after I saw [S.N.]
Q: On that day?
A: Yes.
Q: And you personally prepared this report?
A: I personally typed it.
Q: Do you regularly and routinely keep these reports as part of your position down there with the Waco Children's Advocacy Center?
A: Yes, I do.Weaver's counsel made the following objection to the exhibit: "Just object to its entry, Your Honor. Don't feel like the proper foundation and predicate has been laid for its entry." The court overruled this objection. To preserve an issue for review, a party must timely object and state the grounds for the ruling sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context of the objection. TEX. R. APP. P. 33.1(a)(1)(A). Objecting on the basis that no predicate has been laid is a general objection that lacks the specificity necessary to advise the trial court of the basis for the objection. Young v. State, 183 S.W.3d 699, 704 (Tex.App.-Tyler 2005, pet. ref'd). An objection to an improper predicate that fails to inform the trial court exactly how the predicate is deficient will not preserve a complaint for appeal. Id. (citing Bird v. State, 692 S.W.2d 65, 70 (Tex.Crim.App. 1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986)). Weaver argues on appeal that the predicate was deficient because Dr. Sims failed to state that it was in the "regular practice" of her "business activity" to make the report; however, his objection did not inform the trial court of this deficiency. Therefore, he failed to preserve this issue for review. See TEX. R. APP. P. 33.1(a)(1). We overrule Weaver's second issue.