Read v. State

768 S.W.2d 919, 1989 Tex. App. LEXIS 1390, 1989 WL 51582
CourtCourt of Appeals of Texas
DecidedApril 5, 1989
DocketNo. 09-88-193-CR
StatusPublished
Cited by2 cases

This text of 768 S.W.2d 919 (Read v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Read v. State, 768 S.W.2d 919, 1989 Tex. App. LEXIS 1390, 1989 WL 51582 (Tex. Ct. App. 1989).

Opinions

OPINION

BROOKSHIRE, Justice.

The Appellant was indicted for intentionally and knowingly causing the penetration of the vagina of a child, who was not the spouse of the accused, with the accused’s own sex organ. Appellant pleaded not guilty; trial was by a jury that found the Appellant guilty of aggravated sexual assault. The jury sentenced the Appellant to forty-five years confinement in the Texas Department of Corrections.

The Appellant’s trial attorney was a different one from his appellate attorney. The trial attorney for the accused had Mr. Read fill out a pauper’s oath for an appeal in the middle of May, 1987, but the trial attorney did not file the said oath until long after the time allowed for notice of appeal. In December of 1987, the appellate attorney was appointed by the court to represent the accused in appellate efforts. A writ of habeas corpus was filed. The Court of Criminal Appeals granted the Appellant an out-of-time appeal.

The first point of error is that the trial court erred in submitting a charge to the jury which did not contain the submission of a charge on a lesser-included offense. The record is clear on several crucial points. Mr. Read admitted that he had sexual relations with the complaining witness. He admitted that, at the time, she was thirteen years of age. Appellant argues that he was entitled to a submission on TEX.PENAL CODE ANN. sec. 21.11 (Vernon 1989) “Indecency with a Child”. Indecency with a child can be considered a lesser-included offense of aggravated sexual assault of a child.

The Appellant reposes major reliance in Goodin v. State, 726 S.W.2d 956 (Tex.App.—Fort Worth 1987), aff'd 750 S.W.2d 789 (Tex.Crim.App. en banc 1988). It is true that, in affirming the Fort Worth Court of Appeals, the Court of Criminal Appeals disapproved of certain language. Nevertheless, the Court of Criminal Appeals reasoned in Cordova v. State, 698 S.W.2d 107 (Tex.Crim.App.1985) that, in determining whether an accused is entitled to a charge on a lesser-included offense, a reviewing court will consider all the evidence presented at trial.

A two-prong test is to be applied. The first prong requires that the lesser-included offense must be included within the proof necessary to establish the offense charged in the indictment. Secondly, there must be some evidence in the record that, if the defendant or the accused is guilty at all, then he is guilty of only the lesser offense. Aguilar v. State, 682 S.W.2d 556 (Tex.Crim.App.1985). In the appeal at bar, we conclude that the second prong of the test has not been complied with by the Appellant. In view of the accused’s admissions and in view of the record, we conclude that the Appellant was guilty only of the offense with which he was charged and tried. There is a total dearth of evidence in the record that the Appellant' might be guilty of only the lesser-included offense of indecency with a child. Aguilar v. State, supra.

The Appellant’s next two points of error advance the proposition that the trial court erred in admitting testimony concerning extraneous offenses and that these extraneous offenses should not have been argued by the State’s attorney during the [921]*921punishment stage. The evidence included a tape recording made of a conversation between the accused and a psychologist who was working as a counselor for the victim. The only objection that was made to this tape was that the accused had not been warned that it would be used against him. It is admitted and clear that this conversation was not the results of any custodial interrogation because of the controlling fact that the accused was not in custody. He had voluntarily approached the psychologist. The psychologist was counseling the victim. The psychologist testified the Appellant sought him out and came to the psychologist’s office. The counselor also said that the Appellant said “he would not mind at all” to making a tape recording of their conversation. The psychologist further stated that the tape recorder was on his desk in open view and that the Appellant was aware of the recorder and of the recording and Appellant agreed again to the making of the tape. The psychologist was not a law enforcement officer; nor was he connected to a law enforcement agency.

' The tape shows that the position taken by the Appellant with the psychologist was that the complainant was the aggressor in these sexual episodes. However, it was clear that the complainant was thirteen years of age. It is also clear that the Appellant volunteered the information concerning these extraneous offenses with the complainant and with another young person to justify or partially justify his actions —at least to excuse his actions.

The objection made was that the accused was not advised that the tape recording would be used against him. Under the record, we decide that the trial court committed no error — certainly not reversible error. The trial court was not apprised that the accused desired to object on the grounds of “extraneous offenses.”

There is yet another reason to overrule points of error two and three. If only a part of a string or strain of evidence offered is admissible, then the Appellant must point out and object with specificity as to the inadmissible portions. This rule applies to the tape recording. This was simply not done. See Hernandez v. State, 599 S.W.2d 614 (Tex.Crim.App.1980, opinion on rehearing); Ellard v. State, 509 S.W.2d 622 (Tex.Crim.App.1974). Offenses against the law do not transpire in a vacuum. The trier of facts needs to know the surrounding circumstances. Thus, when a declaration, conversation, detailed act or acts, writing or recorded statement, is proffered in evidence, then any other act or acts, declarations, writing or recorded statement, which are reasonably necessary to make the same fully understood or to reasonably explain the same, may also be given in evidence. TEX.R.CRIM.EVID. 107

Furthermore, during cross-examination when the State was asking the Appellant about having sex with a thirteen-year-old girl, he volunteered that he had had sex with her sister who was about sixteen years old. He brought up, by way of a nonresponsive answer, the extraneous offense. If such evidence of extrinsic matter (being extraneous offenses) has been offered at another stage of the proceeding, then any error in the admission of such extraneous offenses is waived. Boles v. State, 598 S.W.2d 274 (Tex.Crim.App.1980); Crocker v. State, 573 S.W.2d 190 (Tex.Crim.App.1978). Any error in admitting the testimony relevant to the extraneous offenses was certainly waived because it was not objected to by proper objection and, also, because Read virtually blurted them out. Von Byrd v. State, 569 S.W.2d 883 (Tex.Crim.App.1978). Since this evidence was before the jury, the State’s attorney had the right to argue the record to the jury.

The arguments, as shown by the record in the present case, are distinguishable from certain cases cited by the Appellant.

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Bluebook (online)
768 S.W.2d 919, 1989 Tex. App. LEXIS 1390, 1989 WL 51582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/read-v-state-texapp-1989.