Opinion issued August 30, 2012
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-10-00921-CR & 01-10-00922-CR ——————————— DEONDREA DONTEL JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court Harris County, Texas Trial Court Case No. 1248851 & 1248852
MEMORANDUM OPINION
A jury convicted appellant Deondrea Dontel Johnson of sexual assault of a
child (trial court case number 1248851, appellate case number 01-10-00921-CR)
and compelling prostitution of a juvenile (trial court case number 1248852, appellate case number 01-10-00922-CR). See TEX. PENAL CODE ANN.
§ 22.011(a)(2)(A) (West 2011) (sexual assault of a child); id. § 43.05(a)(2)
(compelling prostitution). The jury assessed punishment at 14 years in prison on
each conviction, to run concurrently.
Johnson brings five issues on appeal. In one issue, he challenges the
sufficiency of the evidence to sustain both of his convictions. In the other four
issues, he raises evidentiary complaints, challenging (1) the trial court’s overruling
of his objections to the leading questions used with the complainant and the State’s
attempts to refresh her recollection, (2) the trial court’s refusal to admit evidence to
impeach the complainant, (3) the trial court’s admission of evidence of a prior
conviction, and (4) the trial court’s admission of hearsay from an arrest record.
We affirm.
Background
When she was 15 years old, complainant S.L. ran away from a group home
in Louisiana. Approximately a month later, she met a girl who was driving to
Texas, and she rode with her to Houston. S.L. had no family in Houston, no place
to stay, and no job or educational opportunity awaiting her. After her arrival, with
nowhere to go, she wandered the streets of southwest Houston, looking for a place
to stay. At approximately 2:00 a.m., a white, four-door car approached her.
2 Appellant Johnson was in the rear, with a woman seated next to him. S.L. got into
the car.
Johnson and the female passenger later got out of the car, and then the driver
took S.L. to an apartment, which she understood to belong to Johnson’s aunt.
After approximately 30 minutes, Johnson and another woman, named Danielle,
came to the apartment. Danielle asked S.L. for her name, social security number,
and birthdate, and S.L. provided the information.
That night S.L. slept on the couch, and the next morning Johnson took her to
another apartment across the street, where they had sex. Johnson later told her she
could “make a lot of money,” and he asked her to “make a little money” by
“prostituting . . . having sex for money” at “some apartments” that he identified.
At trial, S.L. did not recall if Johnson told her how much to charge, but she did
recall telling an investigating police officer that she was instructed to make “$500 a
day.”
S.L. told Johnson she was 15 years old, but at trial she did not remember if
she told him her age when they first met. She worked for Johnson for three or four
days over the course of a week. She gave him the money she obtained through
prostitution, and he gave her food and allowed her to stay in the apartment.
Johnson also promised to “take care of” S.L. as long as she was making money for
him. They had sex several times after their initial encounter, but after a week
3 Johnson told her to leave. Several weeks later, after seeing Johnson in public, S.L.
returned to the apartment, where she stayed for approximately three days before he
again told her to leave.
For reasons not revealed in the record, S.L. was stopped by law
enforcement, and she gave a statement to Houston Police Department Officer
E. Rodriguez about what had transpired between her and Johnson. Based on this
statement, Officer Rodriguez compiled a photographic line-up from which S.L.
identified Johnson. Johnson was charged by indictment with aggravated sexual
assault of a minor and compelling prostitution of a minor.
At trial, S.L. identified Johnson as the person who had engaged in sexual
relations with her and asked her to have “sex for money.” Her identification of
Johnson was nevertheless a contested issue at trial. On cross-examination, S.L.
testified that she did not recall whether Johnson was clothed when they had sex,
and she did not remember whether Johnson had any tattoos, scars, or burn marks.
A sister, stepfather, and former girlfriend all testified that Johnson had tattoos on
his torso and arms, a scar on his stomach near his ribcage, and marks on his feet
from prior burns.
Johnson did not testify at trial, but his sister and former girlfriend testified in
an attempt to establish his alibi. The former girlfriend said that they lived together
from June 2005 until January 2010 in a house approximately 25 minutes from the
4 southwest Houston area, where the crimes were alleged to have occurred. She
testified that she saw Johnson daily in the middle part of February 2009 because
they lived together throughout their relationship. She also said that she saw him in
the mornings when getting ready for work and in the evenings.
The sister, stepfather, and former girlfriend all testified that Johnson cared
for a sick niece at his sister’s house for a week around Valentine’s Day of 2009.
The former girlfriend said that she dropped Johnson off in the morning at his
sister’s house in southwest Houston, and she picked him up around 7:00 p.m. She
also said she was certain that Johnson did not leave their house at night because
she would have noticed his absence and because he did not have keys to her car.
On the third day of trial, in a hearing outside the presence of the jury, the
trial court denied Johnson’s motion to testify free from impeachment with prior
convictions, including a September 2009 state-jail felony conviction for
manufacturing and delivering a controlled substance. Johnson then declined on the
record the opportunity to testify, stating that he wished to “remain silent.” The
prosecutor indicated that she wanted to present one rebuttal witness to refute the
testimony that Johnson lived with his former girlfriend from January 2005 to
January 2010. The prosecutor stated that Johnson was in jail during part of that
time and that the testimony would show that the former girlfriend had been
untruthful. Over Johnson’s objections pursuant to Rules 403 and 609, the trial
5 court allowed the rebuttal witness to testify. A records custodian from the Harris
County Sheriff’s Department testified that Johnson was incarcerated in the Harris
County Jail from July 16, 2009 until September 11, 2009. She further testified that
Johnson was arrested in southwest Houston and that he was released to the custody
of the state jail. A redacted copy of the judgment for which he served time in state
jail was admitted into evidence without objection.
The jury found Johnson guilty of both aggravated sexual assault of a child
and compelling prostitution of a juvenile, and it assessed punishment at 14 years in
prison on each conviction, to run concurrently. Johnson appealed.
I. Sufficiency of the evidence
In his second issue, Johnson argues that the evidence is insufficient to
support his convictions. In reviewing the sufficiency of the evidence to support a
criminal conviction, a court of appeals will determine “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). As the
exclusive judge of the facts, the jury may believe or disbelieve all or any part of a
witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App.
1991). We presume that the fact finder resolved any conflicting inferences in favor
of the verdict, and we defer to that resolution if it is supported by the evidence in
6 the record. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. On appeal we may not
re-evaluate the weight and credibility of the evidence and thereby substitute our
own judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007). In reviewing the evidence, circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007).
Johnson argues that the evidence of his guilt is insufficient because S.L.’s
testimony was not credible and because it was controverted by the testimony of his
sister, stepfather, and former girlfriend. But S.L. unequivocally testified to the
essential elements of each crime for which Johnson was convicted. A person
commits the offense of sexual assault if he intentionally or knowingly causes the
penetration of the anus or sexual organ of a child by any means. TEX. PENAL CODE
ANN. § 22.011(a)(2)(A). For purposes of this offense, a child is a person younger
than 17 years of age. Id. § 22.011(c)(1). S.L. testified that she engaged in vaginal
intercourse with Johnson the day after she arrived in Houston, when he took her to
an abandoned apartment. She also testified that she was 15 years old at the time.
“A person commits the offense of compelling prostitution if [he]
knowingly . . . causes by any means a child younger than 18 years to commit
prostitution, regardless of whether [he] knows the age of the child at the time [he]
7 commits the offense.” Id. § 43.05(a)(2). Prostitution includes offering to engage,
agreeing to engage, or engaging in sexual conduct for a fee. Id. § 43.02(a)(1). S.L.
testified that Johnson asked her to “make a little money” by having sex for money,
and in exchange he gave her a place to stay, food, and an offer to care for her. S.L.
also testified that she engaged in sexual acts for money, most of which she gave to
Johnson.
Johnson argues that S.L.’s reluctant testimony, which included repeated
answers of “I don’t know” and “I don’t remember,” and her inability to recall his
scars and tattoos, rendered her testimony insufficient in light of the controverting
testimony from his sister, stepfather, and former girlfriend. This argument
challenges S.L.’s credibility. Determinations about the credibility of the witnesses
are within the province of the jury, and this court may not substitute its judgment
in that regard on appeal. See Williams, 235 S.W.3d at 750.
Viewing the evidence in the light most favorable to the prosecution, we
conclude that a rational jury could have found the essential elements of both crimes
beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see
also TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2005) (establishing that
conviction for offense of sexual assault of child is “supportable on the
uncorroborated testimony of the victim of the sexual offense”); Navarro v. State,
241 S.W.3d 77, 81 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (“The
8 testimony of a child victim alone is sufficient to support a conviction for indecency
with a child.”). We hold that the evidence of Johnson’s guilt was legally sufficient
to support both convictions, and we overrule Johnson’s second issue.
II. Evidentiary challenges
In his first, third, fourth, and fifth issues, Johnson complains of trial court
errors in the admission or exclusion of evidence. We review trial court rulings
concerning admission or exclusion of evidence under an abuse of discretion
standard. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004); Smith v.
State, 340 S.W.3d 41, 53–54 (Tex. App.—Houston [1st Dist.] 2011, no pet.). A
trial court abuses its discretion when it acts arbitrarily and unreasonably, without
reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d
372, 380 (Tex. Crim. App. 1990) (citing Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241–42 (Tex. 1985)); Smith, 340 S.W.3d at 53–54. In reviewing
a trial court’s ruling for an abuse of discretion, an appellate court will not intercede
as long as the trial court’s ruling is at least within the zone of reasonable
disagreement. See Montgomery, 810 S.W.2d at 391.
To preserve error relating to the admission of evidence, a party must make a
proper objection and obtain a ruling on that objection. TEX. R. APP.
P. 33.1(a)(1)-(2); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App.
2004). Even if the trial court errs by permitting the admission of evidence, we will
9 only reverse a conviction on that basis if the error had a substantial and injurious
effect or influence on the jury’s verdict. See TEX. R. APP. P. 44.2(b). “We should
not overturn the conviction if we have fair assurance from an examination of the
record as a whole that the error did not influence the jury, or had but slight effect.”
Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008).
A. Leading questions
In his first issue, Johnson contends that the trial court erred by overruling his
objections to the State’s use of leading questions, which he contends improperly
revealed information from the investigating officer’s offense report. At trial,
Johnson repeatedly objected to the prosecutor’s questioning on the grounds that her
questions were leading. On appeal, he complains about specific instances of
questioning, and he argues that the use of leading questions “likely led to a false
imprint in the juror’s minds.” The State responds generally that the trial court
properly exercised its discretion in permitting the use of leading questions because
S.L. was 17 years old at the time of trial, had a troubled background, and was
reluctant to testify. See Padilla, 278 S.W.3d at 106 (“In cases dealing with child
witnesses, the rule against leading questions is somewhat relaxed.”).
“A leading question is one which suggests the desired answer or puts words
into the witness’s mouth to be echoed back.” Mega Child Care, Inc. v. Tex. Dep’t
of Protective & Regulatory Servs., 29 S.W.3d 303, 307 (Tex. App.—Houston [14th
10 Dist.] 2000, no pet.). “A question which calls for the answer yes or no is not
therefore necessarily leading; it must go further and suggest which of said answers
is desired or what answer is expected.” Hodges v. State, 108 Tex. Crim. 210, 212,
299 S.W. 907, 908 (1927); accord Newsome v. State, 829 S.W.2d 260, 269 (Tex.
App.—Dallas 1992, no pet.) (“The mere fact that a question may be answered by a
simple ‘yes’ or ‘no’ will not render it an impermissibly leading question.”).
The Rules of Evidence discourage, but do not forbid, the use of leading
questions. Leading questions “should not be used on the direct examination of a
witness except as may be necessary to develop the testimony of the witness.” TEX.
R. EVID. 611(c). Nevertheless, a trial may exercise its “sound discretion” to permit
leading questions. See Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000)
(holding that the evidentiary rule “clearly contemplates that some leading
questions are acceptable at the trial court’s discretion”); Padilla v. State, 278
S.W.3d 98, 106 (Tex. App.—Texarkana 2009, pet. ref’d). “The asking of leading
questions is seldom a ground for reversal (especially where a child is testifying).”
Uhl v. State, 479 S.W.2d 55, 57 (Tex. Crim. App. 1972).
In his appellate brief, Johnson identifies eleven instances of allegedly
impermissible leading questions. Of those challenges, he only objected to eight of
the questions at trial on the basis of improper leading. The trial objections as to the
other three instances do not comport with his appellate complaint about leading
11 questions and are therefore waived. See TEX. R. APP. P. 33.1; Swain v. State, 181
S.W.3d 359, 367 (Tex. Crim. App. 2005) (holding error waived because trial
objection did not comport with issue raised on appeal).
The remaining instances of allegedly improper questioning pertained to the
following areas of inquiry: (1) whether S.L. could recall the name of a street in
southwest Houston; (2) whether she could recall leaving the apartment with
Johnson the first morning she awoke in Houston; (3) whether she recalled Johnson
telling her he “liked the way [she] felt”; (4) two questions about whether she
recalled Johnson saying she could “make him a lot of money”; (5) two questions
regarding how much money Johnson told her to make in a day; and (6) whether she
remembered telling the police officer that Johnson “would have [her] work to the
point where [she] would get no rest.”
Johnson’s objections to the question about whether S.L. recalled a street
name and the question about whether she told the police officer that Johnson told
her to “get as much money as [she] possibly could” are waived because they were
untimely. In both instances, the record reflects that S.L. answered the question
before Johnson objected, and he does not argue that he had a legitimate reason to
justify the delay. These complaints are not preserved for appeal. See TEX. R. APP.
P. 33.1; Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008).
12 As to the remaining appellate complaints about the use of leading questions,
although we do not consider the trial court’s rulings in this regard to be outside the
zone of reasonable disagreement in light of the circumstances involving a child
witness, even if we were to agree that the questions were impermissibly leading,
we nevertheless would conclude that the errors were not harmful. With respect to
the question of whether S.L. recalled Johnson saying that he “liked the way [she]
felt,” S.L. responded that she did not recall that statement. Because the question
did not directly relate to any element of the charged offenses, and because S.L. did
not follow the “lead” by adopting the prosecutor’s suggestion as her own
testimony, we cannot conclude that the question, even to the extent it may have
been leading, had a “substantial and injurious effect or influence on the jury’s
verdict.” TEX. R. APP. P. 44.2(b).
The record also demonstrates that Johnson could not have been harmed by
any of the other testimony elicited by questions that are now challenged on appeal
as leading. The Court of Criminal Appeals has held that an appellant is not
prejudiced by virtue of leading questions when substantially the same testimony is
elicited on cross-examination. Hernandez v. State, 643 S.W.2d 397, 400–01 (Tex.
Crim. App. 1982); see also Padilla v. State, 278 S.W.3d 98, 106 (Tex. App.—
Texarkana 2009, pet. ref’d). In this case, the cross-examination of S.L. mooted
most of Johnson’s objections about leading questions.
13 For example, in regard to the question of whether S.L. recalled leaving the
apartment with Johnson, after the trial court overruled Johnson’s objection, S.L.
testified that she went to an abandoned apartment and had sex with Johnson. On
cross-examination, S.L.’s testimony was substantially the same: she testified that
after she awoke in the apartment, Johnson took her to an abandoned apartment.
Likewise, regarding the questions about whether S.L. recalled Johnson telling her
that she could “make him a lot of money,” the same evidence was introduced again
on cross-examination:
Q. Now, when you’re in this abandoned apartment, which is right across the street from the aunt’s house—
A. Uh-huh.
Q. —Mr. Johnson then apparently starts to solicit you about the fact that you could be making a lot of money by working the streets.
Q. Okay. And that—basically, he says: Hey, if you’re going to be prostituting, you can make some good money.
A. Yes.
As to the questions about how much money Johnson told S.L. to make in a day,
that evidence also came in elsewhere without objection, and also on cross-
examination. The prosecutor asked S.L. whether she “testified earlier that the
defendant wanted you to make approximately $500 a day,” and S.L. answered in
14 the affirmative. On cross-examination, Johnson’s counsel also asked her about the
charge to earn $500 a day:
Q. Now, Mr. Johnson never told you charge “X” dollars for a specific sex act?
A. No.
Q. He just said: Bring home $500 a day?
Q. That’s what he said to you?
Q. Now—and you’re certain of that?
Finally, defense counsel revisited on cross-examination the question of whether
S.L. worked such long hours that she was tired or got no rest. On direct
examination, S.L. testified that she did not remember if Johnson told her how long
to work or when to stop working, nor did she remember making any statement to
that effect to the police officer. She testified consistently on cross-examination:
Q. Okay. I’m confused in your testimony because when you were being asked on direct about whether you had worked long hours until you were tired versus you didn’t work long hours until you were tired. Do you remember that conversation on direct?
....
A. Huh? 15 Q. Do you remember that part of your direct testimony?
A. What?
Q. There was confusion as to whether you worked long hours until you were tired versus you remembering whether you worked long hours until you were tired.
Q. You remember that?
Q. Which is it?
A. I don’t remember.
In summary, under the difficult circumstances of a direct examination of a
reluctant child witness concerning the sensitive subjects of sexual abuse and
prostitution, we are not persuaded that the trial court’s rulings overruling
objections to leading questions were outside the zone of reasonable disagreement
so as to constitute an abuse of discretion. However, even to the extent the trial
court may have erred, Johnson was not harmed because the same information was
otherwise introduced without objection or elicited by defense counsel on cross-
examination. See 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”).
16 B. Refreshed recollection
Johnson also argues that the prosecutor used improper techniques to refresh
S.L.’s memory. Johnson makes no attempt to segregate the questions that he
contends were leading questions from the questions he contends were improper
attempts to refresh S.L.’s recollection. Eight of the instances he challenges on
appeal were preserved only by an objection that the questions were leading. We
cannot reverse the judgment on appeal based on evidentiary arguments that were
not timely and specifically raised at trial—i.e., that the leading questions were
improper attempts to refresh S.L.’s recollection. See TEX. R. APP. P. 33.1(a).
Of the remaining instances of testimony that Johnson challenges on appeal,
only twice did Johnson object at trial that the question constituted an improper
attempt to refresh S.L.’s recollection. The first instance involved questioning
about how long Johnson wanted S.L. to work the first day:
Q. How long would you say that you were out on the street?
Q. Would you say it was a short amount of time or a long period of time?
Q. Do you remember making the statement to Officer Rodriguez back on March 15th of 2009 that the defendant wanted you to work all day?
A. Oh—
17 Defense counsel: Objection, Judge. This is improper bolstering and improper recollection.
Trial court: Overruled.
As we have explained, defense counsel elicited similar testimony on cross-
examination on the same topic. Thus, even if this were error, it was not harmful.
See Leday, 983 S.W.2d at 717.
The second instance related to the prosecutor’s question about how often
Johnson had sex with S.L.:
Q. Now, go back to your statement. Okay? And in speaking with Officer Rodriguez, do you recall saying that during this time frame you would have sex with him almost every day?
Defense: Objection, Judge. That’s an improper form of recollection and refreshing the witness’s memory. That’s hearsay from the standpoint that the officer’s notes cannot be a written statement from the complaining witness.
State: You Honor, if I may, the law states I can refresh her memory from any document.
Trial court: Overrule the objection.
Q. Do you recall saying that, [S.L.]?
Again, similar testimony was elicited on cross-examination. After eliciting
testimony that she had sex with Johnson on the living room floor in the abandoned
apartment, Johnson’s counsel asked her how many times she had sex with Johnson.
18 Q. And, again, how many times did you say you had sex with him? I'm talking—
A. Two to three.
Q. —vaginal intercourse sex?
A. Two or three times.
Because defense counsel elicited similar testimony on cross-examination even if
the objected-to statement were error, it was not harmful error. See id.; Burnett, 88
S.W.3d 633, 637 & n.8 (Tex. Crim. App. 2002) (holding that error affects
substantial right when it has substantial and injurious effect on outcome, in light of
entire record).
We hold that the errors complained of in this issue were waived or harmless,
and we overrule Johnson’s first issue.
III. Exclusion of juvenile criminal offenses
In his third issue, Johnson argues that the trial court erred by ruling that he
could not impeach S.L. by questioning her about her juvenile criminal offenses. In
particular, he sought to question S.L. about her arrest for failing to identify herself
to a police officer and her Louisiana probation for unauthorized use of a motor
vehicle.
Before opening statements, the State made an oral motion in limine seeking
to prohibit the defense from asking the investigating officer or S.L. about her arrest
for failing to identify herself to a police officer. The trial court granted the motion.
19 The next day, before S.L. began testifying, the court held a hearing outside the
presence of the jury to consider the admissibility of evidence of S.L.’s juvenile
criminal offenses. During this hearing, both S.L.’s arrest for failure to identify
herself and her probation for unauthorized use of a motor vehicle were discussed.
The trial court ruled that Johnson was not permitted to question S.L. about her
juvenile criminal offenses. Johnson’s attorney reiterated his objection, saying,
“And respectfully note my objection for the record.”
On direct examination, S.L. testified that she had lived in foster homes and
group homes since the age of seven. She testified that she ran away from group
homes eight times before she came to Texas because she felt that she had no
freedom there. She said that three times the police brought her back to the group
homes, and five times she returned voluntarily. She also testified that when she
decided to come to Texas, she “needed to get away from Baton Rouge” because
“the police were looking for me.” On cross-examination, defense counsel asked
S.L. if she knew why the police were looking for her in Louisiana. The State
objected, and the court held a hearing outside the presence of the jury. The defense
attorney acknowledged that he did not know the answer to the question he had
posed to S.L., but he argued that the State had opened the door to the question.
The trial court stated, “We’ve already talked about any UUMV [unauthorized use
of a motor vehicle]. We weren’t going to go into that. Any juvenile adjudications,
20 we’re not going into that.” Johnson’s counsel argued that the testimony was
needed to show that S.L. was not only seeking freedom from the group home but
also running away from the police. The trial court allowed S.L. to be questioned
on voir dire, outside the presence of the jury:
Q. Do you know the reason for which the police were looking for you?
A. Yes, sir.
Q. What was that reason, to your understanding?
A. I was on probation and kept running away. I violated my probation by running away.
Q. Your probation for?
A. A previous crime.
Q. Okay. Which crime was that, ma’am? It’s just so the record is clear.
A. Unauthorized use of a motor vehicle.
Q. Okay. So, you felt the police were after you for violating your probation relating to that crime?
Q. Okay. Thank you.
Johnson’s attorney then stated, “I will not be inquiring into that,” and the court
responded, “All right. Very good. That settles that.”
21 The State argues that Johnson waived this issue for appeal by failing to
pursue his objection at trial. In light of counsel’s statement that he would not
inquire about the conviction, we agree. See TEX. R. APP. P. 33.1(a)(1)(A) (stating
prerequisite for preservation of error for appellate review); cf. Gardner v. State,
306 S.W.3d 274, 293 (holding that error was harmless because defendant
“affirmatively stated ‘no objection’” when evidence offered at trial); Harrison v.
State, 333 S.W.3d 810, 812–13 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)
(“[G]enerally, an affirmative statement of ‘no objection’ waives any error relating
to that matter.”). We overrule Johnson’s third issue.
IV. Rebuttal evidence regarding prior conviction
In his fourth issue, Johnson contends that the trial court abused its discretion
by permitting the State to introduce evidence of a prior conviction through
testimony from a rebuttal witness. Outside the presence of the jury, the trial court
ruled that the State could impeach Johnson with evidence of certain of his prior
convictions, and Johnson stated on the record that he wished to remain silent.
Johnson’s former girlfriend testified in his defense that she saw Johnson
daily in mid-February 2009 because they lived together throughout their
relationship. On cross-examination, the former girlfriend testified that she spent
“every single night” with Johnson during the week in mid-February 2009 when he
22 cared for his sick niece. The State then asked if Johnson lived with her through
January 2010:
Q. And, again, he continued to live with you at your house until January of 2010?
A. Yes. That’s where he was staying.
Q. Do you remember the specific date that he stopped living with you in January of 2010?
A. No. I don’t remember the specific date of it, no; but I know that’s when he we stopped being a couple.
Q. That’s not only when you stopped being a couple, but you are 100 percent certain that that’s when he stopped living with you.
To impeach the credibility of Johnson’s former girlfriend as an alibi witness,
the State sought to introduce testimony that Johnson was actually in the Harris
County jail from July to September 2009, and he was then transferred to a state
jail. Johnson objected that a witness may be impeached with her own prior
conviction, not with a prior conviction of the defendant. See TEX. R. EVID. 609(a).
He also objected that the probative value of the evidence did not outweigh its
prejudicial effect. See TEX. R. EVID. 403. The trial court noted Johnson’s running
objections.
A custodian of the records of the Harris County Sheriff’s Department
testified that Johnson was in the Harris County Jail from July 16, 2009 until
September 11, 2009; he was arrested in southwest Houston, on the same street 23 where he first encountered S.L.; and he was released to the custody of the state jail.
After the records custodian testified that Johnson was released from Harris County
Jail to a state jail, the State offered a redacted copy of the judgment for which
Johnson went to state jail. Johnson’s counsel stated, “No objection as redacted,
Your Honor.”
Assuming without deciding that the trial court erred by admitting this
evidence, we nevertheless conclude that it was harmless because substantially the
same evidence came in later without objection. In a harmless error analysis, we
must determine if the alleged error affected the defendant’s substantial rights. See
TEX. R. APP. P. 44.2(b). Johnson initially preserved error by making a running
objection to the admissibility of the rebuttal evidence. But when the State offered
the redacted judgment of conviction for admission, Johnson’s counsel
affirmatively stated that he had no objection to the exhibit. The non-redacted
portions of the judgment reveal that: (1) Johnson was convicted of a state jail
felony offense that occurred on May 27, 2009; (2) he pleaded guilty and received a
plea-bargained sentence of eight months in state jail; (3) sentence was imposed on
September 4, 2009; and (4) Johnson was given credit for periods of incarceration
from May 27, 2009 to June 4, 2009, and from July 16, 2009 to September 4, 2009.
Although Johnson initially preserved error by lodging a running objection, he later
waived all such objections by affirmatively stating “no objection” when the exhibit
24 was admitted into evidence. See Gardner, 306 S.W.3d at 293. Because the
information in the redacted judgment was substantially the same as the testimony
offered by the rebuttal witness, we hold that any error in the admission of
testimony from the rebuttal witness was rendered harmless by the admission of the
redacted judgment of conviction. See Leday, 983 S.W.2d at 717. We overrule
Johnson’s fourth issue.
V. Admission of hearsay from arrest record
In his fifth issue, Johnson argues that the trial court abused its discretion by
permitting the State’s rebuttal witness to testify, based on her records, that Johnson
was arrested in southwest Houston on the same street where he first encountered
S.L. On appeal, Johnson argues that this was impermissible hearsay. At trial,
Johnson objected on the basis of relevance. At no point did Johnson raise a
hearsay objection to this particular testimony. Because his trial objection does not
comport with his issue on appeal, this issue is waived. See Swain, 181 S.W.3d at
367. We overrule Johnson’s fifth issue.
25 Conclusion
We affirm the judgments of the trial court.
Michael Massengale Justice
Panel consists of Justices Bland, Massengale, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).