Daniel Wayne Bensend A/K/A Daniel W. Bensend v. State

• Court: Court of Appeals of Texas
• Decided: October 11, 2012
• Docket: 02-11-00110-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-11-00110-CR

DANIEL WAYNE BENSEND A/K/A APPELLANT DANIEL W. BENSEND

V.

THE STATE OF TEXAS STATE

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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1

Introduction

Appellant Daniel Wayne Bensend a/k/a Daniel W. Bensend appeals his

conviction for sexual assault of a child younger than seventeen years of age,

complaining in two points that the trial court erred by (1) admitting hearsay over

1 See Tex. R. App. P. 47.4. his objection and (2) allowing the prosecutor to comment on Appellant’s failure to

testify. We affirm.

Background Facts and Procedural History

Appellant was thirty-two years old when his next door neighbors

confronted him about an incriminating note they had found that their sixteen-year

old daughter had written to Appellant but not delivered. He denied that anything

had happened, but when the girl came home from work, she admitted that the

two had engaged in sexual intercourse. Her parents took her to the hospital for a

sexual assault examination during which she told the nurse that she had had sex

with Appellant. Later, at Appellant’s trial, the nurse testified over Appellant’s

objection that the girl had identified Appellant as the perpetrator. The jury found

Appellant guilty and assessed his punishment at two-and-a-half years’

confinement. The trial court sentenced Appellant accordingly.

The complained-of testimony came in elsewhere without objection.

In his first point, Appellant complains of sexual assault nurse examiner

Rebecca Sullivan’s testimony that, during the sexual assault exam, the

complainant told her that she had had sexual contact with Appellant. Appellant

objected at trial and now complains on appeal that testimony about his identity as

the one with whom the complainant had sexual contact is hearsay for which the

medical-diagnosis-or-treatment exception under rule of evidence 803(4) does not

apply. But the record shows that the complainant herself had previously testified

to these same facts. Even were we to agree with Appellant that the objected-to

2 testimony was hearsay for which an exception does not apply, we would have to

disregard the error unless it affected Appellant’s substantial rights. Tex. R. App.

P. 44.2(b); see Tex. R. Evid. 103(a); Garcia v. State, 126 S.W.3d 921, 927 (Tex.

Crim. App. 2004). It is well-established that the improper admission of evidence

is not reversible error if the same facts are proved by other properly admitted

evidence or come in elsewhere without objection. Lozano v. State, 359 S.W.3d

790, 823–24 (Tex. App––Fort Worth 2012, pet. ref’d); Matz v. State, 21 S.W.3d

911, 912 (Tex. App.––Fort Worth 2000, pet. ref’d); see Brooks v. State, 990

S.W.2d 278, 287 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 956 (1999);

Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (holding that

“overruling an objection to evidence will not result in reversal when other such

evidence was received without objection, either before or after the complained-of

ruling”). We overrule Appellant’s first point.

Appellant forfeited his jury-argument claim.

In his second point, Appellant complains of remarks made by the

prosecutor during closing argument that Appellant contends were impermissible

comments on his decision not to testify. He concedes that he did not object to

these remarks at trial but claims that he did not need to because the error was

“fundamental.” He relies on Willis v. State, in which the court of criminal appeals

carved out an exception when arguments are manifestly improper, violate some

mandatory statute or inject harmful new facts into the case to the general rule

requiring objections to preserve jury-argument errors. 785 S.W.2d 378, 385

3 (Tex. Crim. App. 1989), cert. denied, 496 U.S. 908 (1990). As the State correctly

points out, though, Willis has not been the law for some time. See Estrada v.

State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010) (“We overruled the exception

discussed in Willis more than ten years ago.”), cert. denied, 131 S. Ct. 905

(2011); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding a

“defendant’s failure to object to a jury argument . . . forfeits his right to complain

about the argument on appeal), cert. denied, 520 U.S. 1173 (1997). Appellant

did not object to the argument of which he now complains on appeal. Cockrell,

not Willis, controls in this case. See Estrada, 313 S.W.3d at 303; Cockrell, 933

S.W.2d at 89. We overrule Appellant’s second point.

Conclusion

Having overruled both of Appellant’s points, we affirm the trial court’s

judgment.

LEE GABRIEL JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: October 11, 2012