Rodney Jermaine Johnson v. State

• Court: Court of Appeals of Texas
• Decided: November 6, 1997
• Docket: 03-97-00239-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-97-00239-CR Rodney Jermaine Johnson, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 46,934, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

Rodney Jermaine Johnson appeals from a trial-court judgment convicting him of capital murder of a child under age six. See Tex. Penal Code Ann. § 19.03(a)(8) (West 1994). The State did not seek the death penalty. The jury found Johnson guilty and the trial judge fixed punishment at life imprisonment. See Tex. Code Crim. Proc. Ann. art. 37.071 (West Supp. 1997). We will affirm the judgment.

THE CONTROVERSY

The victim of Johnson's offense was the twenty-two-day-old daughter of the appellant and his wife, Marva Johnson. The evidence established that the victim died November 13, 1996, as the result of skull fractures, brain hemorrhages, and right frontal lobe lacerations of the brain. According to the medical examiner these injuries were caused by blunt force head impacts. An autopsy revealed evidence of older brain and rib injuries dating throughout the life of the child.

On November 20, 1996, three days after the baby's death, Johnson gave a statement to the State's chief investigator. According to his statement, during the night of November 5-6, 1996, the victim was lying in her bassinet and crying. Johnson stated he had become frustrated and hit the baby with his knuckles in an attempt to stop her crying and to calm her down. He further stated that on another occasion, approximately one week before her death, he picked up the infant, again in response to her crying, and squeezed her. He stated that while he squeezed her he noticed that her ribs went in too far. Johnson did not testify at trial.

PRESERVATION OF ERROR

In his only point of error, Johnson complains the trial court erred when it allowed the State to introduce evidence of "old injuries" sustained by the victim. There were two types of "old injuries": head and rib injuries. In an opening statement, the prosecution stated, without objection, that Johnson both hit the child and squeezed the child around the ribs. The State offered into evidence, without objection, an abridged version of the appellant's written statement to the State's investigator. In that statement, Johnson described how he had hit the baby the night of November 5-6, 1996 and how he had squeezed and broken the baby's ribs approximately one week before her death. Evidence of these injuries was again introduced into evidence by Johnson when he offered the entire statement into evidence under the rule of optional completeness. See Tex. R. Crim. Evid. 107; Finley v. State, 917 S.W.2d 122, 125 (Tex. App.--Austin 1996, pet. ref'd).

Johnson now complains about the admissibility of such evidence. He failed to object, however, when that evidence was first presented. In order to preserve his complaint for appellate review, Johnson was obliged to present "to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context." See Tex. R. App. P. 52 (a); see also Davis v. Davis, 734 S.W.2d 707, 710 (Tex. App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.). No such timely request, objection, or motion appears in the record.

Johnson's later objection, when the issue arose again in the context of the medical examiner's testimony and autopsy reports, was untimely and therefore did not preserve error. See Tex. R. App. P. 52(a); Etheridge v. State, 903 S.W.2d 1, 14 (Tex. Crim. App. 1994), cert. denied, 116 S. Ct. 314 (1995) (citing Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259 (1991)). The evidence was already before the jury. In the absence of an objection at the time the evidence was first admitted, the claimed error was not preserved for our review. Id. We overrule the point of error.

For the reasons given, we affirm the trial-court judgment.

John Powers, Justice

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: November 6, 1997

Do Not Publish

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FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

Rodney Jermaine Johnson appeals from a trial-court judgment convicting him of capital murder of a child under age six. See Tex. Penal Code Ann. § 19.03(a)(8) (West 1994). The State did not seek the death penalty. The jury found Johnson guilty and the trial judge fixed punishment at life imprisonment. See Tex. Code Crim. Proc. Ann. art. 37.071 (West Supp. 1997). We will affirm the judgment.

THE CONTROVERSY

The victim of Johnson's offense was the twenty-two-day-old daughter of the appellant and his wife, Marva Johnson. The evidence established that the victim died November 13, 1996, as the result of skull fractures, brain hemorrhages, and right frontal lobe lacerations of the brain. According to the medical examiner these injuries were caused by blunt force head impacts. An autopsy revealed evidence of older brain and rib injuries dating throughout the life of the child.

On November 20, 1996, three days after the baby's death, Johnson gave a statement to the State's chief investigator. According to his statement, during the night of November 5-6, 1996, the victim was lying in her bassinet and crying. Johnson stated he had become frustrated and hit the baby with his knuckles in an attempt to stop her crying and to calm her down. He further stated that on another occasion, approximately one week before her death, he picked up the infant, again in response to her crying, and squeezed her. He stated that while he squeezed her he noticed that her ribs went in too far. Johnson did not testify at trial.

In his only point of error, Johnson complains the trial court erred when it allowed the State to introduce evidence of "old injuries" sustained by the victim. There were two types of "old injuries": head and rib injuries. In an opening statement, the prosecution stated, without objection, that Johnson both hit the child and squeezed the child around the ribs. The State offered into evidence, without objection, an abridged version of the appellant's written statement to the State's investigator. In that statement, Johnson described how he had hit the baby the night of November 5-6, 1996 and how he had squeezed and broken the baby's ribs approximately one week before her death. Evidence of these injuries was again introduced into evidence by Johnson when he offered the entire statement into evidence under the rule of optional completeness. See Tex. R. Crim. Evid. 107; Finley v. State, 917 S.W.2d 122, 125 (Tex. App.--Austin 1996, pet. ref'd).

Johnson now complains about the admissibility of such evidence. He failed to object, however, when that evidence was first presented. In order to preserve his complaint for appellate review, Johnson was obliged to present "to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context." See Tex. R. App. P. 52 (a); see also Davis v. Davis, 734 S.W.2d 707, 710 (Tex. App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.). No such timely request, objection, or motion appears in the record.

Johnson's later objection, when the issue arose again in the context of the medical examiner's testimony and autopsy reports, was untimely and therefore did not preserve error. See Tex. R. App. P. 52(a); Ether