Ranson v. State

707 S.W.2d 96, 1986 Tex. Crim. App. LEXIS 1226

• Court: Court of Criminal Appeals of Texas
• Decided: April 9, 1986
• Docket: 67246
• Status: Published

Opinions

OPINION

McCORMICK, Judge.

This is an appeal from a conviction for sexual abuse of a child. V.T.C.A., Penal Code, Section 21.10 (repealed by Acts 1983, 68th Leg., p. 5321, ch. 977, § 12, eff. Sept. 1, 1983). Punishment was assessed at twenty years’ confinement.

The indictment in the instant case alleges in pertinent part that on or about January 20, 1980, appellant:

“did then and there with intent to arouse and gratify his sexual desire, intentionally and knowingly engage in deviate sexual intercourse, namely he did place his mouth on the genitals of KRISTEIN BISHOP, a female child younger than seventeen years of age and not his spouse, ...”

In his first ground of error, appellant contends that the State failed to prove that he had the intent to arouse and gratify his own sexual desire.

In considering the sufficiency of the evidence to show the intent to arouse or gratify a defendant’s sexual desire, we have held that the evidence of a common pattern of similar acts is admissible as tending to prove the intent, Ferguson v. State, 579 S.W.2d 2 (Tex.Cr.App.1979), and that the requisite specific intent can be inferred from the defendant’s conduct, his remarks, and all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211 (Tex.Cr.App.1981); Bowles v. State, 550 S.W.2d 84 (Tex.Cr.App.1977).

In the instant case, the victim, appellant’s stepdaughter, testified that appellant placed his mouth on her genitals and breasts and inserted his finger inside her vagina. She further testified that appellant had previously had sexual contact with her, including having her place her mouth on his genitals. Viewing the victim’s testimony regarding the appellant’s conduct and the pattern of sexual abuse in this case in the light most favorable to the verdict, we find that the State discharged its burden of proving the requisite intent on the part of appellant. The first ground of error is overruled.

Appellant testified during direct examination that he had never sexually abused his children. On cross-examination, the following occurred:

“Q. Okay, sir. Now, Mr. Ranson, do you recall calling me at my office and requesting that I come to the Police Department to talk to you when you were arrested?

“A. I believe another attorney called you, didn’t he?

“Q. No, sir. You called me personally.

“A. I was drinking that evening. I do not recall, no.

“Q. Okay. Do you recall coming down to the police station, where you and I and Detective Maldonado sat down with a tape recorder and you made a rather lengthy statement into that tape recorder concerning various events surrounding this offense?

“MR. STALLINGS: Your Honor, at this time, we’re going to object to any referral to any kind of tape recording, and we would ask that the jury be removed.

“THE COURT: Overruled.

“MRS. MATKIN: Thank you, Your. Hon- or.

“MR. STALLINGS: Please note our exception.

“MRS. MATKIN: This is for the purposes of impeachment.

BY MRS. MATKIN:

“Q. Do you call that, Mr. Ranson?

“A. Would you repeat the question, please.

“Q. The question is, do you recall coming down to the police station, where you met with Detective Maldonado and myself, in which we had a tape recorder and recorded a rather lengthy conversation that you engaged in?

“A. Yes. I vaguely remember it. Yes.

“Q. Okay, sir. Now, during that conversation, you and I discussed the various relationships that you had with Betty, or Señora Gant, who you were first married to, and Donna Jean Ran-son, who you married also. Do you remember those conversations?

“A. Yes. I remember several conversations.

“Q. Okay, sir. Do you recall making the following statement to me concerning the nature of your attempt to get the two women together? And I will read a rather lengthy statement.

“MR. STALLINGS: Prior to you reading that, we object, Your Honor, at this time, on the State’s — on her reading from any kind of record that she had there presently — because the State has failed to lay the proper predicate in regard to the care, custody and control of that particular tape, how it was reduced to writing, and how it became a typewritten report. She was talking about a tape recording, and now she has got a written report from it.

“MRS. MATKIN: Judge—

“MR. STALLINGS: At this time, it is improper for her to be reading from any kind of report. We don’t have the slightest idea where that report came from.

“MRS. MATKIN: Judge, in order to impeach the witness, I must establish specifically certain statements, so that at a later time, we may bring in the testimony, if he denies making these statements. So, I must be rather specific about it. I will not refer to the paper, if he desires that I not refer to it. But I want to make sure that the statements are specific enough that we make, so that he may be later impeached on them.

“MR. STALLINGS: Your Honor, at this time—

“MRS. MATKIN: It is a proper method of cross examination.

“MR. STALLINGS: Your Honor, that’s an improper method of cross examination. The State had the opportunity, when they put on their case in chief, to put on someone to testify, if in fact, these papers are accurate. We have no idea of their authenticity.

“MRS. MATKIN: Judge—

“MR. STALLINGS: And they should have put on somebody to prove up ... I object to Counsel’s interrupting me, also. To prove up — as she has done so many times during this trial — the authenticity of the tape, who took the tape, where the tape was kept, how it was stored, who transcribed the tape, if in fact, it was transcribed, and whether or not there was a tape in the first place.

“MRS. MATKIN: Judge, first—

“MR. STALLINGS: I think it’s a little late for the State to do this.

“THE COURT: I’ll overrule the objection.

You may ask the question. The witness can answer it, if he is capable of answering it.

“MRS. MATKIN: Thank you, Your Hon- or.

“MR. STALLINGS: Please note our exception.”

Thereafter, the prosecutor began reading excerpts from appellant’s oral statement and asking appellant if he remembered making those statements.

In his second ground of error, appellant contends that the trial court erred in allowing the State to read into evidence parts of appellant’s oral confession without proof that appellant was properly warned. Our reading of the record indicates that appellant was given the required warnings on at least two occasions. The detective who arrested appellant testified that after his arrest appellant was taken before a justice of the peace. Appellant’s own testimony on cross-examination indicates that he was also given his warnings immediately before he gave his oral statement:

“Q. Okay, sir. Now, do you recall that, prior to making that statement, Mr. Ranson, I warned you of various rights that you had under the law?

“A. You may have.

“Q. You don’t remember that?

“A. No, ma’am. Not all of them.

“Q. You don't remember all of them?

“A. No, ma’am.”

Furthermore, even if appellant was not properly warned, the record shows that appellant did not make a timely objection on the basis that he now urges on appeal. The initial interchange between appellant and the prosecutor regarding the oral statement given by appellant begins on page 222 of the statement of facts. Defense counsel did not raise an objection concerning the giving of Miranda warnings until page 247 of the statement of facts, some twenty-five pages after the prosecutor had begun this line of questioning. This Court has held time and time again that in order to preserve error an objection must be timely and must call the attention of the trial court to the particular complaint raised on appeal. Ex parte Bagley, 509 S.W.2d 332, 333 (Tex.Cr.App.1974), and cases cited therein. Clearly, error, if any, was not preserved.

Finally, after reviewing all of the evidence, we find that if the statement was erroneously admitted, it was harmless error. Appellant’s ten-year-old step child testified in graphic terms regarding the commission of the offense:

“Q. Okay. Now, I want you to tell the jury what happened to you?

“A. Well, my momma, she took — come and got me out of bed and took my clothes off.

“Q. Okay. Where did she take you?

“A. In their room.

“Q. Okay. When you say ‘their room’, is that Ralph and her room?

“A. Yes.

“Q. Okay. Go ahead.

“A. And she started playing with me. And, then, Ralph asked if he could come and join in. And, then ...

“Q. Okay. That’s alright, Kris. Now, when you say ‘Donna played with you’, could you tell the jury what you mean by that?

“A. She took and licked between my legs and on my breasts.

“Q. Okay. Now, the area between your legs that she licked, do you have a formal word for that? What’s that area called?

“A. Vagina.

“Q. Okay. Now, after Ralph asked if he could join in, could you tell them what happened.

“A. He started licking me between the legs and sticking his finger in me and—

“Q. Okay.

“A. —started licking my breasts.

“Q. Licking your breasts. Okay. When you say he ‘licked you between the legs’, did he lick you on your vagina?

“A. Yes.

“Q. Okay. Down in the area where you go to the bathroom — down in that area?

“A. Yes.

“Q. Okay. Did he do that a lot?

“A. I don’t remember.

“Q. Okay. After he did this to you — do you remember how long it lasted? Could you give us a time of how long it lasted?

“A. I don’t remember.

“Q. Okay. Now, besides licking you down there, could you tell the jury what else he did?

“A. Licking my breasts and sticking his finger inside my vagina.”

She also testified that appellant had engaged in this type of conduct on more than one occasion and had also made her engage in oral sodomy upon him.

The appellant himself testified that at no time had he sexually abused any of his children. He also testified that at one time he was married to two women and that they all lived together in one household. His first wife testified for the defense. On cross-examination, she admitted that he had forced her to engage in oral sex on several occasions with his second wife, the victim’s mother. She also testified that appellant suggested on one occasion that she have sexual intercourse with appellant’s son. She testified that on another occasion, when they were all living together, she awoke one night and found appellant’s son engaging in sexual intercourse with appellant’s second wife while appellant kneeled nearby, directing his son in what to do. She also testified that appellant beat his second wife.

John W. Sharp, III, testified that he engaged in sexual intercourse with the victim’s mother, appellant’s second wife, at the direction of appellant.

Having read the entire record and knowing that the jury had this additional damaging testimony before it, we are compelled to hold that the error, if any, was harmless. The test for harmless error is not whether a conviction could have been had without the improperly admitted evidence but whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Maynard v. State, 685 S.W.2d 60 (Tex.Cr.App.1985). In Vanderbilt v. State, 629 S.W.2d 709 (Tex.Cr.App.1981), we wrote:

“Unless we find a reasonable possibility that the improperly admitted evidence contributed to appellant’s conviction, reversal is not required. Schneble v. Florida, supra [405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972)]; Wilder v. State, supra, [583 S.W.2d 349 (Tex.Cr.App.1979)]. If we conclude ‘that the “minds of the average jury” would not have found the State’s case significantly less ;persuasive ...' had the testimony now at issue been excluded, we need not reverse. Schneble v. Florida, supra, (emphasis added).” [material in brackets added] 629 S.W.2d at 724.

Given the entire record, we cannot say that it is reasonably possible that appellant’s oral statement contributed to his conviction.

As to punishment, neither the State nor appellant presented any evidence at the punishment phase of the trial. Once again, considering all of the other damaging testimony admitted during the guilt-innocence phase of the trial, and the failure of appellant to produce any mitigating evidence at the punishment phase of the trial, we cannot authoritatively state that it was reasonably possible that appellant’s oral statement contributed to the jury’s decision to assess the maximum penalty. Appellant’s second ground of error is overruled.

The judgment is affirmed.