Richard Charles Owings, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: March 15, 2018
• Docket: 01-15-00132-CR
• Status: Published

Opinion

Opinion issued March 15, 2018

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00132-CR ——————————— RICHARD CHARLES OWINGS, JR., Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court Harris County, Texas Trial Court Case No. 1454997

MEMORANDUM OPINION

A jury convicted appellant, Richard Charles Owings, Jr., of the first-degree

felony offense of aggravated sexual assault of a child and assessed his punishment at thirty years’ confinement.1 In two issues, appellant contends that the trial court

erred by (1) allowing the State to cross-examine him about the underlying facts of

his prior conviction for aggravated robbery and (2) refusing to require the State to

elect which of the instances of sexual assault presented in the trial testimony it would

rely upon for a conviction. On original submission, a majority of the panel reversed

appellant’s conviction and remanded the case for a new trial, holding that the trial

court committed reversible error by failing to require the State to elect a specific

instance of sexual assault. Because the majority remanded the case for a new trial,

it did not reach appellant’s first issue.

The State subsequently filed a petition for discretionary review. The Court of

Criminal Appeals reversed the judgment of the majority, holding that the trial court’s

error in failing to require an election was harmless. See Owings v. State, — S.W.3d

—, No. PD-1184-16, 2017 WL 4973823, at *8 (Tex. Crim. App. Nov. 1, 2017). The

Court of Criminal Appeals therefore remanded the case to this Court to address

appellant’s remaining issue regarding the State’s cross-examination of appellant

concerning the underlying facts of his prior conviction.

We affirm.

1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i)–(iii), 22.021(a)(2)(B) (West Supp. 2017). 2 Background

Appellant was previously married to F.M., the grandmother of the

complainant, K.M. Appellant was not K.M.’s biological grandfather. K.M. and her

mother occasionally lived with F.M. and appellant, and they lived in F.M.’s house

for a period of time in 2009 and 2010. F.M. and appellant divorced in 2011.

In January 2013, K.M. disclosed to F.M. that appellant had sexually abused

her beginning when she was five or six years old. At trial, K.M. specifically

described four different instances of sexual abuse. She testified that one instance

occurred in the bedroom that F.M. and appellant shared. K.M. described how

appellant took off both of their clothes, laid her down on the bed, and vaginally

penetrated her. K.M. testified that appellant routinely carried a knife with him and

that he had it on this occasion. Appellant showed her the knife, “put it to [her],” and

told her that if she told anybody about what he was doing, he would hurt her,

someone else, or one of her pets. Appellant placed the knife on the nightstand next

to the bed where he could reach it and where K.M. could see it.2 K.M. then testified

about three other specific instances of sexual assault, but she did not mention the

presence of a knife in connection with those instances.

2 After K.M. disclosed to F.M. that appellant had sexually abused her, she underwent a physical exam and a forensic interview. K.M. told the nurse practitioner conducting the exam and the forensic interviewer that appellant had threatened her with a knife. 3 Appellant testified on his own behalf and denied all of the allegations of

inappropriate sexual behavior with K.M. He agreed that he commonly carried a

knife with him in his front pocket and that he would put the knife on the nightstand

by his bed when he took it off, but he denied pointing the knife at K.M. or threatening

to harm other people or K.M.’s pets. When asked if K.M. was lying about the abuse

allegations, appellant speculated that F.M. had encouraged K.M. to make allegations

against him and that K.M. had received “a lot of positive attention” as a result of the

allegations.

Appellant acknowledged on direct examination that he had been convicted of

aggravated robbery in 1986 and felony driving while intoxicated in 2012. On cross-

examination, appellant and the State had the following exchange:

The State: Okay. And so, Mr. Owings, we heard that you said that you were convicted of aggravated robbery, right? Appellant: Yes, I was. The State: And you were sentenced to 25 years in TDC? Appellant: Yes. The State: Fair to say then that you have threatened people with weapons before to get what you want? Defense counsel: Objection, Your Honor, it’s not material or relevant. The Court: Overruled. Defense counsel: It’s not for the purpose of—the reason that that offense was admitted. It was admitted for the purpose of impeachment.

4 The Court: I understand. The State: So, you have threatened people with weapons to get what you want before, correct? Appellant: I thought I didn’t go in there with a gun they wouldn’t take me seriously. The State: Okay. Where did you go in? Defense counsel: Your Honor, I’m going to object. It’s not material. The Court: Sustained.

The State then asked appellant about his felony DWI conviction and did not ask any

further questions about the aggravated robbery conviction. Neither party mentioned

this testimony in closing argument.

Ultimately, the jury found appellant guilty of the offense of aggravated sexual

assault of a child and assessed his punishment at thirty years’ confinement.

Underlying Facts of Prior Conviction

In his sole remaining issue on appeal, appellant contends that the trial court

erred by allowing the State to cross-examine him about the underlying facts of his

prior conviction for aggravated robbery.

A. Standard of Review and Governing Law

We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010). We

will not reverse unless the record demonstrates a clear abuse of discretion. Zuliani

v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A trial court abuses its

5 discretion only when the court’s decision was so clearly wrong as to lie outside the

zone within which reasonable persons might disagree. Id.

Rule of Evidence 609 permits the admission of evidence of the fact of a prior

felony conviction offered to attack a witness’s character for truthfulness. TEX. R.

EVID. 609(a). However, the details of the prior conviction are generally inadmissible

for the purpose of impeachment. Mays v. State, 726 S.W.2d 937, 953 (Tex. Crim.

App. 1986); Jabari v. State, 273 S.W.3d 745, 753 (Tex. App.—Houston [1st Dist.]

2008, no pet.). “This is because evidence of prior convictions and extraneous bad

acts ‘is inherently prejudicial, tends to confuse the issues in the case, and forces the

accused to defend himself against charges which he had not been notified would be

brought against him.’” Arebalo v. State, 143 S.W.3d 402, 407 (Tex. App.—Austin

2004, pet. ref’d) (quoting Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App.

1972)).

Error in the admission of evidence is non-constitutional error subject to a harm

analysis under Texas Rule of Appellate Procedure 44.2(b). TEX. R. APP. P. 44.2(b);

Jabari, 273 S.W.3d at 754. We disregard any non-constitutional error that does not

affect the defendant’s substantial rights. TEX. R. APP. P. 44.2(b); Jabari, 273 S.W.3d

at 754. A substantial right is affected when the error had a substantial and injurious

effect or influence in determining the jury’s verdict. Jabari, 273 S.W.3d at 754

(citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). We will not

6 overturn a conviction for non-constitutional error if, after examining the record as a

whole, we have fair assurance that the error did not influence the jury or had but

slight effect. Id. (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998)).

B. Preservation of Error

The State contends that appellant failed to preserve his complaint for appellate

review because appellant did not receive an adverse ruling from the trial court

concerning this line of questioning. Specifically, the State argues that after defense

counsel initially objected, the trial court overruled the objection. Then, the

prosecutor re-stated the question, defense counsel objected a second time, and, this

time, the trial court sustained the objection. Defense counsel did not request an

instruction to disregard or move for a mistrial, and the State abandoned that line of

questioning. The State argues that, as a result, appellant “received the relief he

requested,” and, therefore, he cannot raise this complaint on appeal.

The trial court did sustain an objection during the State’s line of questioning,

but it did not sustain an objection to the question that appellant complains about on

appeal. The State asked appellant, “Fair to say then that you have threatened people

with weapons before to get what you want?” Defense counsel objected, arguing that

this question was not “material or relevant” and that appellant’s prior conviction was

“admitted for the purpose of impeachment.” The trial court overruled the objection,

7 and the State again asked, “So, you have threatened people with weapons to get what

you want before, correct?” Defense counsel did not object to this question. Instead,

appellant answered, stating, “I thought [if] I didn’t go in there with a gun they

wouldn’t take me seriously.” The State then asked, “Where did you go in?” Defense

counsel objected to this question, stating, “It’s not material.” The trial court

sustained this objection, and the State moved on to a different line of questioning.

Appellant does not complain about the State’s second question—“Where did

you go in?”—on appeal. Instead, he complains about the question, “Fair to say then

that you have threatened people with weapons before to get what you want?” The

trial court did not sustain an objection to that question. Thus, contrary to the State’s

assertion, appellant did not receive the relief that he requested with respect to the

question he complains about on appeal.

However, although appellant did not receive the relief that he requested, we

nevertheless agree with the State that appellant did not preserve his complaint for

appellate review. To preserve a complaint for appellate review, the complaining

party must “let the trial judge know what he wants, why he thinks he is entitled to it,

and . . . do so clearly enough for the judge to understand him at a time when the

judge is in the proper position to do something about it.” Pena v. State, 285 S.W.3d

459, 464 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909

(Tex. Crim. App. 1992)). The party’s complaint on appeal must comport with the

8 complaint made at trial. Id.; see Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.

App. 2012) (stating that, to preserve error, “[t]he point of error on appeal must

comport with the objection made at trial” and noting that even constitutional errors

can be forfeited by failure to properly object at trial).

Here, the following exchange occurred:

The State: Fair to say then that you have threatened people with weapons before to get what you want? Defense counsel: Objection, your Honor, it’s not material or relevant. The Court: Overruled. Defense counsel: It’s not for the purpose of—the reason that that offense was admitted. It was admitted for the purpose of impeachment. The Court: I understand.

Defense counsel therefore objected on the basis that the State’s question was not

“material or relevant” and that appellant’s prior conviction for aggravated robbery

was “admitted for the purpose of impeachment.”

Defense counsel did not object on the basis that, although the fact of a prior

conviction is admissible pursuant to Rule 609, the underlying details of that prior

conviction are generally not admissible. Defense counsel also did not object on the

basis that the question sought improper character evidence in violation of Rule of

Evidence 404(b), which he also argues on appeal. Appellant’s objection at trial,

therefore, does not comport with the complaint asserted on appeal, and he has thus

9 failed to preserve this complaint for appellate review. See Pena, 285 S.W.3d at 464;

see also Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999) (holding that

relevancy objection at trial does not preserve error concerning Rule 404 claim);

Martinez v. State, 345 S.W.3d 703, 705 (Tex. App.—Amarillo 2011, no pet.) (stating

that objection based on Rule 609 was not “inherent” in defendant’s Rule 403

objection made at trial and citing unpublished memorandum opinions holding that

trial objections based on Rule 404 and relevancy grounds do not preserve Rule 609

complaints for appellate review).

C. Analysis

Even if appellant had preserved his complaint that the trial court erroneously

allowed the State to elicit underlying details of his prior conviction for aggravated

robbery, we conclude that any error in allowing this testimony was harmless.

The trial court properly admitted evidence that appellant had a prior

aggravated robbery conviction from 1986. The trial court then allowed the State to

ask appellant, “Fair to say then that you have threatened people with weapons before

to get what you want,” implying that appellant used a weapon while committing the

aggravated robbery.3 Appellant confirmed this implication, stating, “I thought [if] I

didn’t go in there with a gun they wouldn’t take me seriously.” This was the only

3 See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011) (providing that person commits offense of aggravated robbery if he commits offense of robbery and he “uses or exhibits a deadly weapon”). 10 testimony admitted concerning the details of appellant’s aggravated robbery

conviction.

With respect to the charged offense of aggravated sexual assault against K.M.,

K.M. testified unequivocally that appellant had sexually assaulted her on several

occasions over the course of several years, and she provided detailed testimony

about four specific different occasions, including the acts that appellant made her

perform and where the acts occurred. F.M., the nurse who conducted K.M.’s

physical exam, and K.M.’s forensic interviewer all testified that K.M. disclosed to

them instances of sexual abuse that were consistent with her trial testimony. K.M.

testified, without objection, that appellant, who routinely carried a knife with him at

all times, used that knife on one occasion to threaten her while he sexually assaulted

her, pointing the knife at her, laying it on the nightstand within his reach and within

her line of sight, and threatening the safety of others and her pets if she told anyone

about what happened. The nurse who conducted K.M.’s physical exam and K.M.’s

forensic interviewer both testified, without objection, that K.M. disclosed to them

that appellant had threatened her with his knife. Appellant denied the allegations

against him and suggested that K.M. had been “encouraged” to make the allegations

against him by F.M.

This case hinged on the jury’s assessment of K.M.’s credibility versus its

assessment of appellant’s credibility. Appellant admitted that he had two prior

11 felony convictions, including one for aggravated robbery, which could have affected

his credibility. See Arebalo, 143 S.W.3d at 410 (noting, in concluding that erroneous

admission of details of defendant’s prior conviction was harmless, that defendant

had admitted his prior conviction and “the fact of the conviction itself indicated some

propensity towards violence and could have weighed against his credibility”). The

trial court included the following instruction in its charge to the jury:

You are instructed that certain evidence was admitted before you in regard to the defendant having been charged and convicted of an offense or offenses other than the one for which he is now on trial. Such evidence cannot be considered by you against the defendant as any evidence of guilt in this case. Said evidence was admitted before you for the purpose of aiding you, if it does aid you, in passing upon the weight you will give his testimony, and you will not consider the same for any other purpose.

Furthermore, after the trial court sustained an objection from defense counsel

regarding the State’s inquiry into details of appellant’s prior aggravated robbery

conviction, the State moved on to asking about appellant’s other felony conviction.

Neither party again addressed the details of appellant’s aggravated robbery

conviction, in questioning or in argument, and neither party again mentioned the

knife exhibited during the assaults on K.M.

Based on this record, in which appellant provided brief testimony about the

details of a prior conviction while the State presented strong evidence of the charged

offense, we conclude that the trial court’s error in allowing the State to elicit a detail

of appellant’s prior aggravated robbery conviction did not have a substantial or 12 injurious effect in determining the jury’s verdict and did not affect appellant’s

substantial rights. See TEX. R. APP. P. 44.2(b); Jabari, 273 S.W.3d at 754 (noting,

in holding that trial court’s error in allowing details of defendant’s prior convictions

was harmless, that “[a]mple other evidence existed on which the jury could have

found [the defendant] guilty”).

We overrule appellant’s sole remaining issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes Justice

Panel consists of Justices Jennings, Keyes, and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).