Jimmy Mathis v. State

• Court: Court of Appeals of Texas
• Decided: May 16, 2019
• Docket: 06-18-00189-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-18-00189-CR

JIMMY MATHIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 17-F-0563-202

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION The event forming the basis for this appeal occurred during Jimmy Mathis’ jury trial that

resulted in his conviction for aggravated sexual assault of a child 1 and his life sentence. Shortly

after forensic interviewer and expert witness Jessica Kelly testified that the victim, Sunday

Nicholas, 2 exhibited a demeanor consistent with the demeanor of other Kelly child-interviewees

that had been molested, Mathis objected to the testimony asserting that it constituted improper

bolstering and improper testimony that Kelly believed the victim. On appeal, however, Mathis

claims that the testimony was erroneously admitted because Kelly was not shown to be qualified

as an expert witness to speak to the demeanor of the victim. Even if the objection at trial survived

the fact that it was made after the answer and the delay was not explained, it cannot have survived

Mathis’ failure to argue on appeal the basis of his objection at trial regarding that testimony.

Because this lone point of error on appeal was not preserved for our review, we affirm the judgment

of the trial court.

“Preservation of error is a systemic requirement on appeal.” Ford v. State, 305 S.W.3d

530, 532 (Tex. Crim. App. 2009). “If an issue has not been preserved for appeal,” the court of

appeals should not address the merits of that issue. Id. (citing Haley v. State, 173 S.W.3d 510, 515

(Tex. Crim. App. 2005)). “For a party to preserve a complaint for appellate review, the

complaining party must make a specific objection and obtain a ruling on the objection.” Yazdchi

v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (citing Wilson v. State, 71 S.W.3d 346, 349

1 TEX. PENAL CODE ANN. § 22.021 (West 2019). 2 We use a pseudonym to protect the child’s identity. See TEX. R. APP. P. 9.10.

2 (Tex. Crim. App. 2002)). The objection must be made at the earliest possible opportunity. Turner

v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Also, the point of error on appeal must be

essentially the same objection that was made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex.

Crim. App. 2002); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986).

During its case-in-chief, the State elicited the testimony of Kelly, from the Texarkana

Children’s Advocacy Center (CAC). Kelly testified that she has a bachelor’s degree in psychology

from Southern Arkansas University and is working to earn her certification as a licensed

professional counselor. She attended the Child First Protocol training in Arkansas, as well as block

training in Texas. Kelly also attended advanced training in multi-session forensic interviewing,

advanced training in the Prepare and Predict model, hosted by Homeland Security, and additional

advanced training on how to introduce evidence into CAC interviews. Kelly testified that she has

conducted approximately 476 forensic interviews over the course of her career. Kelly was

tendered and accepted as an expert in the area of forensic interviewing. Mathis offered no

objection to her being qualified as an expert witness.

Thereafter, Kelly testified about her CAC interview with the victim. It is a portion of this

testimony about which Mathis complains on appeal:

Q All right. Now, at some point you get into the part of the allegation. Is that correct?

A That’s correct.

Q All right. And while the child is giving you the information, specifically, Sunday Nicholas, who you conducted the interview of, was she able to give you a detailed account as to what happened to her, the what, the when, the where, all of that?

3 A Yes, sir.

Q And when she provided all of that information to you, you’re sitting there alone in the room with this child. Did you have an opportunity to observe her demeanor?

A I did.

Q And from your experience, have you interviewed children around her age that have come forward with allegations such as this?

A Yes.

Q Was Sunday Nicholas’s demeanor consistent with other children that you have interviewed that have been molested?

A Yes, sir.

[Defense Counsel]: Your Honor, can we approach real quick?

THE COURT: Yes.

[Defense Counsel]: I object to the consistent demeanor question because I think that’s simply having the witness bolster basically that she believes Sunday. I think it’s improper for her to say that she believes her.

. . . .

THE COURT: I think she said it was consistent, so I’ll overrule your objection.

On appeal, Mathis complains that the trial court erred in permitting Kelly to testify about

the victim’s demeanor during the interview because Kelly was not properly qualified as an expert

witness to provide such testimony. But, as can be seen above, Mathis did not object on that basis

at trial, and his point of error on appeal does not comport with the objection made at trial; it, thus,

4 has not been preserved for our review. 3 See Wilson, 71 S.W.3d at 349; see also Swain v. State,

181 S.W.3d 359, 367 (Tex. Crim. App. 2005).

We overrule Mathis’ sole point of error and affirm the trial court’s judgment.

Josh R. Morriss, III Chief Justice

Date Submitted: May 15, 2019 Date Decided: May 16, 2019

Do Not Publish

3 We also conclude that the objection was too late to be effective. “[T]he failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence.” Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002). “A complaint is timely if it is made ‘as soon as the ground of objection becomes apparent.’” Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011) (quoting Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991)). “If a defendant fails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely, and any claim of error is forfeited.” Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008). Here, the grounds of Mathis’ trial objection based on bolstering and believability were apparent once the question had been asked regarding the consistency of Sunday’s demeanor with that of other children Kelly had interviewed. Mathis objected to this question only after Kelly responded. Having offered no legitimate reason to justify the delay, Mathis presented an objection that was untimely. See Luna, 268 S.W.3d at 604; see also Pena, 353 S.W.3d at 807. 5