Hector, Cedric Glen v. State

• Court: Court of Appeals of Texas
• Decided: May 2, 2006
• Docket: 14-05-00379-CR
• Status: Published

Opinion

Affirmed as Modified and Opinion filed May 2, 2006

Affirmed as Modified and Opinion filed May 2, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00379-CR

CEDRIC GLEN HECTOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1000656

O P I N I O N

Appellant Cedric Glen Hector appeals after a jury convicted him of aggravated sexual assault on a child and assessed punishment at ninety-nine years= imprisonment in the Texas Department of Criminal JusticeCInstitutional Division.  In three points of error, appellant contends that the trial court erred in (1) entering an affirmative finding that appellant used a deadly weapon; (2) allowing a witness=s testimony in violation of the Rule; and (3) ruling that the State could impeach appellant with prior convictions.  We affirm the judgment as modified herein.

Background

Appellant is the former boyfriend of Kim, the complainant=s mother.  Appellant lived with Kim and her family for several years, during which time he repeatedly molested the complainant, J.G.  J.G. testified that the first incident occurred in 1999, when she was thirteen, and the last occurred in 2003, when she was seventeen.  J.G.=s grandmother, Patricia Maxwell, testified that she had seen appellant wrestle with the complainant and touch her inappropriately.  Chassidy Jordan, who temporarily lived with J.G.=s family, testified that appellant made J.G. sit on his lap, touched  her inappropriately, and locked her in a bedroom with him at night on multiple occasions.  According to J.G. and Jordan, appellant used a knife to jam the locks on the bedroom doors so that no one could open them while he was inside with J.G.^[1] 

J.G. stated that she initially did not tell anyone about the abuse because she was afraid that appellant would beat her.  She also testified that when she later told a cousin that appellant had been molesting her, the cousin called the police; however, nothing materialized from the brief investigation.  J.G. testified that appellant molested her for the last time a few days before a family barbeque.  At the barbeque, appellant and J.G. had an argument about the boy J.G. was dating, and J.G. became extremely upset.  J.G. testified that she then called Maxwell and told her that appellant had been molesting her for the past four years.  Maxwell immediately drove to the barbeque, picked up J.G., and drove to the police station.  On the way, they encountered an officer and told him about the abuse. 

Appellant was charged with aggravated sexual assault on a child.  The jury found him guilty as charged and assessed punishment at ninety-nine years= incarceration.

Affirmative Finding on Use of a Deadly Weapon

In his first point of error, appellant argues that the judgment should be reformed because the trial court erred in entering an affirmative finding that appellant used a deadly weapon.  We agree.

When, as here, the jury is the trier of fact, the trial court may not properly enter an affirmative finding concerning the defendant=s use of a deadly weapon unless: (1) the deadly weapon has been specifically pled as such in the indictment; (2) the weapon pled in the indictment is per se a deadly weapon; or (3) a special issue is submitted and answered affirmatively.  Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985).  The State concedes that there is no allegation or evidence that appellant used a deadly weapon in the commission of the offense, and our review of the record confirms this omission; therefore, the trial court erred in entering the affirmative finding.  In such situations, an appellate court may reform the judgment by deleting the improper deadly weapon finding and affirm the judgment as modified.  French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Easterling v. State, 710 S.W.2d 569, 582 (Tex. Crim. App. 1986).  Accordingly, we sustain appellant=s first point of error and modify the judgment to delete the erroneous affirmative finding.

Witness Testimony in Violation of AThe Rule@

In his second point of error, appellant argues that the trial court erred in allowing Kaichelle Bonner, J.G.=s cousin, to testify in violation of Texas Rule of Evidence 614.  Known as Athe Rule,@ Rule 614 excludes witnesses from the courtroom during trial to prevent the testimony of one witness from influencing the testimony of another witness.  Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005).  However, a trial court may allow a witness to testify in violation of the Rule.  Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996).  As the Court of Criminal Appeals stated in Archer v. State, 703 S.W.2d 664, 666 (Tex. Crim. App. 1986): 

A violation of the rule may not be relied upon for reversal of the case unless it is shown that the trial court abused its discretion in allowing the alleged violative testimony to be elicited at trial.  The ultimate test for determining when an abuse of discretion has occurred is whether harm to the defendant has resulted by allowing the violative testimony to be introduced.  

In Archer, the court articulated two criteria for determining whether a defendant was prejudiced by a violation of the Rule: (1) whether the witness actually heard the testimony of the other witnesses; and (2) whether the witness=s testimony contradicted the testimony of the witnesses he actually heard.  Id.  In Guerra v. State, 771 S.W.2d 453, 475 (Tex. Crim. App. 1988), the court expanded the test to read as follows:

Did the witness=s testimony contradict the testimony of a witness he actually heard from the opposing side or corroborate the testimony of  another witness he actually heard from the same side on an issue of fact bearing upon the issue of guilt or innocence?  

The court stated that if these criteria were met, Aconsequential injury or prejudice will flow from the objectionable testimony.@  Id.

Bonner was present only during the testimony of Patricia Maxwell and Chassidy Jordan.  The prosecutor, who stated that she had not subpoened Bonner or met her before appellant=s trial began, called Bonner as a rebuttal witness to refute the testimony of Rachelle  and Shirley Hatten, appellant=s sister and mother.^[2]  Rachelle testified that appellant appeared to have a normal relationship with the complainant.  She also testified that she had never witnessed any suspicious or inappropriate conduct by appellant and that neither the complainant nor Kim had ever complained to her about appellant=s behavior.  Rachelle also denied warning appellant about his interactions with the complainant and asserted that she had never asked Kim to drop the charges against appellant.  Similarly, Shirley testified that she had never noticed anything unusual about the way appellant interacted with the complainant and that no one had complained to her about appellant=s behavior.  Shirley also denied asking Kim to drop the charges against appellant.

According to Bonner, however, Shirley had described appellant=s relationship with the complainant as Abizarre,@  had  expressed concerns that appellant acted like he was dating the complainant, and had warned appellant to stay away from the complainant.  Bonner also testified that according to Shirley, Kim Aneed[ed] to be more concerned with the relationship between [appellant] and her daughter.@  Bonner also testified that she overheard a conversation during which Rachelle asked Kim to drop the charges against appellant and assured her that appellant=s family would keep him away from the complainant.  Because Bonner did not hear the testimony of the witnesses whose testimony she contradicted, the trial court did not abuse its discretion in allowing her testimony.  We overrule appellant=s second point of error.

Impeachment With Prior Convictions

In his third point of error, appellant argues that the trial court erred in ruling that the State could impeach him with prior convictions under Rule 609 of the Texas Rules of  Evidence.  Appellant argues that his prior convictions for possession with intent to deliver illegal substances and burglary of a habitation were more prejudicial than probative.  However, appellant has failed to preserve this issue for appellate review.  A defendant must testify in order to be impeached with prior convictions.  Luce v. United States, 469 U.S. 38, 43 (1984); Jackson v. State, 992 S.W.2d 469, 479 (Tex. Crim. App. 1999); Morgan v. State, 891 S.W.2d 733, 735 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d).  Appellant did not testify at either stage of his trial.  Therefore, appellant has waived the Rule 609 argument on

appeal.^[3]  We overrule appellant=s final point of error and affirm the judgment of the trial court as modified herein.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Opinion filed May 2, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  There is no evidence that appellant threatened J.G. with the knife or used it for any purpose besides  jamming the doors.

^[2]  The trial court specifically limited the scope of Bonner=s testimony to the impeachment of these two witnesses.

^[3]  Before testifying, appellant made a  motion to testify free from impeachment with prior convictions.  However, this does not alter our analysis of appellant=s third point of error.  See Morgan, 891 S.W.2d at 733 (noting that defendant refused to testify after the trial court ruled adversely on his motion in limine regarding impeachment with prior convictions).