Theodore Nelson, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: January 30, 2004
• Docket: 07-02-00186-CR
• Status: Published

Opinion

NO. 07-02-0186-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JANUARY 30, 2004 ______________________________

THEODORE NELSON, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 232nd DISTRICT COURT OF HARRIS COUNTY;

NO. 869,441; HON. MARY LOU KEEL, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

Theodore Nelson, Jr., appeals his conviction for aggravated sexual assault of a

child. The jury assessed his punishment at life imprisonment. Three issues pend for our

consideration. Appellant argues that 1) the State improperly commented on his failure to

testify during the punishment phase of the trial, 2) the trial court erred during the

punishment phase of the trial by admitting victim impact evidence concerning two other

1 John T. Bo yd, C hief Ju stice (R et.), Se ven th Court of App eals, sitting by assignm ent. Tex. Gov’t Code Ann. §75.00 2(a)(1 ) (Vernon Supp. 2004 ). children assaulted by appellant, and 3) the trial court erred during the punishment phase

of the trial by admitting evidence of extraneous offenses about which appellant was not

notified. We affirm the judgment of the trial court.

Issue One - Comment on Failure to Testify

Appellant claims that the State impermissibly commented on his failure to testify

during its closing arguments at the punishment phase. The comment consisted of the

prosecutor opining that probation may be warranted for those who express remorse about

or accept responsibility for their acts. Appellant did not testify and believed the utterance

alluded to that fact. We overrule the issue.

When the prosecutor’s comment is supported by testimony in the record as to the

defendant’s lack of remorse, the argument is not an improper comment on his failure to

testify. Davis v. State, 782 S.W.2d 211, 222-23 (Tex. Crim. App. 1989), cert. denied, 495

U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d 520 (1990); see also Roberts v. State, 923 S.W.2d

141, 145 (Tex. App.--Texarkana 1996, pet. ref’d) (holding that when the record contains

evidence demonstrating the defendant’s lack of remorse at the scene of the crime or

otherwise outside the trial setting, the comment is a summary of the evidence). At the

punishment phase of the trial, the State re-offered the evidence presented during the guilt-

innocence phase. Within it appeared testimony from the victim’s mother illustrating that

when she asked appellant why he inserted his fingers into the four-year-old victim’s

genitalia, he stated, “because she was messing with me.” Further, appellant was described

as being “kind of nonchalant” when questioned by police, and his major concern was

whether he “could go to work the next day.” Appellant also stated to others that the four-

year-old victim had been playing with herself at the time of the alleged offense. This

2 constitutes evidence from which the State could reasonably opine that appellant was

neither accepting responsibility nor remorseful for his misconduct. See Palermo v. State,

992 S.W.2d 691, 694-95 (Tex. App.--Houston [1st Dist.] 1999, pet. ref’d) (holding that

testimony to the effect that 1) the defendant had told someone that he had shot people but

never anyone who did not need it, 2) that when being questioned by police, his biggest

concern was his need to get home to be sure his van and camera equipment were safe,

and 3) his comments to a clinical psychologist that he did not remember doing anything and

knew he did not do anything supported the prosecutor’s argument that the defendant’s

remorse could be considered in determining punishment and did not constitute an attempt

to infer lack of remorse from the defendant’s failure to testify). Thus, the comment was not

improper.

Issue Two - Admission of Victim Impact Evidence

Appellant next contends that the trial court impermissibly admitted, during the

punishment phase, “victim impact evidence concerning children not named in the

indictment.” We overrule the issue.

The testimony in question involved two children, J. and P. As to the alleged impact

evidence regarding the former, appellant objected. In response, the trial court stated,

”sounds like extraneous to me” and “I think you can’t get into extraneous.” Given their

context (i.e. the litigants were arguing about whether the questions solicited improper

impact evidence), the court’s responses reasonably evince one of two things. Either it

agreed with appellant or it did not rule on the objection. If it agreed with appellant, then

appellant has no complaint on appeal. If the trial court did not rule on the objection, then

3 appellant failed to preserve his complaint for appeal. Lusk v. State, 82 S.W.3d 57, 60 (Tex.

App.--Amarillo 2002, pet. ref’d) (holding that to preserve error, the objection must be

pressed to the point of an adverse ruling). And, in either case, nothing is before us for

review.

As to the impact evidence regarding P., appellant objected to the State’s initial

attempt to solicit the information. After the State explained that it was simply attempting

to “elicit any signs of abuse at or around the time [the abuse was] occurring,” the objection

was overruled. At that point, the State asked another question about changes in the

behavior or sleeping patterns of P. This garnered another objection by appellant. In

response, the trial court directed the prosecutor to clarify the question and overruled

appellant’s subsequent request for an instruction to the jury to disregard the witness’ “last

response.” Then, the State asked another question which resulted in the witness

describing behavior that appellant previously considered victim impact evidence; however,

no objection was uttered this time. Having failed to object to the subsequent evidence or

to obtain a running objection when the prior evidence was solicited, appellant waived his

complaint. Cruz v. State, 877 S.W.2d 863, 868 (Tex. App.--Beaumont 1994, pet. ref’d)

(holding that where the same evidence or argument is presented elsewhere without

objection, no reversible error exists).

Issue Three - Admission of Extraneous Offenses

Lastly, appellant complains that the State did not afford him notice of its intent to

offer, during the punishment phase, extraneous offenses for which he was not convicted.

The evidence consisted of acts wherein two children, P. and A., were the victims. We

overrule the point.

4 Article 37.07 §3(g) of the Code of Criminal Procedure provides that:

On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Criminal Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act . . . .

TEX . CODE CRIM . PROC . ANN . art. 37.07 §3(g) (Vernon Supp. 2004). Appellant filed a

request for notice. The State responded by notifying appellant, in writing and several

months before trial, of its intent to proffer evidence of numerous criminal acts undertaken

by him and involving different victims. Two of the named victims were P. and A.

Furthermore, the extraneous offenses which appellant committed against P. were listed as

1) “indecency with a child by exposure,” 2) “aggravated sexual assault of a child,” and 3)

“indecency with a child by contact.” These offenses occurred in Harris County “on or

about” June 6, 1996, according to the notice. The offenses in which A. was the victim were

itemized as 1) “indecency with a child by exposure,” 2) “indecency with a child by contact,”

and 3) “sexual assault of a child.” The State alleged (in its notice) that they too occurred

in Harris County but “on or about” May 5, 1980.

At trial, evidence was offered of multiple acts undertaken by appellant involving P.

and A. Though appellant did not object to the evidence of the first act committed with

respect to each victim, he objected to the State’s attempt to present evidence of other acts

he may have committed against them because those acts supposedly were not covered

by the State’s prior written notice. For instance, P. initially testified that when she was six

or seven years old, appellant inserted his finger into her vagina. When asked if he did other

5 things to her on other occasions, appellant objected. In his view, the State could not solicit

that information because those acts occurred on a date other than June 6, 1996, and the

State only notified him of its intent to present evidence of extraneous offenses occurring

on June 6th. This argument has several flaws, however.

First, to have merit, the initial act described by the witness would have had to be the

one encompassed by the notice, assuming arguendo that the notice is to be strictly

construed as encompassing only those crimes committed on the exact day the State

mentioned. Yet, neither appellant nor the record illustrate that the date on which he

penetrated P. with his finger was June 6, 1996.2 Nor do either appellant or the record

illustrate that the other acts of which he was accused in the notice occurred on a date other

than June 6, 1996. It may well be that the first act described happened on a date other

than June 6th and the other offenses P. was asked to describe were the ones that actually

occurred on June 6th.3 And, if that is true, then appellant may well have objected to

evidence of crimes about which the State actually notified him and stood silent when the

evidence of offenses, if any, outside the scope of the notice was solicited. Simply put, we

do not know one way or the other. And, because we do not, we cannot say that appellant

carried his burden on appeal of showing that the trial court erred in admitting the evidence.

Second, and more importantly, the underlying purpose of art. 37.07, §3(g) is to avoid unfair

surprise. Chimney v. State, 6 S.W.3d 681, 693 (Tex. App.–Waco 1999, pet. ref’d).

Assuming arguendo that serving this purpose may require exactitude under some

2 As indicated in his brief, appellant simply presumed that the act occurred on June 6th.

3 The same can be said about the evidence of extraneous offenses regarding A.

6 situations, it does not when the extraneous offenses involve crimes against children. Under

those circumstances, the statutory requirement obligating the State to inform the accused

of the date on which he committed the extraneous offense is relaxed. Roethel v. State,

80 S.W.3d 276, 280-81 (Tex. App.–Austin 2002, no pet.) (noting that “courts also have

given the State leeway in specificity regarding dates” and that “[c]ourts have allowed some

range of time to satisfy the requirement of a specific date”); see Burling v. State, 83 S.W.3d

199, 202-03 (Tex. App.–Fort Worth 2002, pet. ref’d) (stating that notice encompassing a

six-week span was reasonable); Hohn v. State, 951 S.W.2d 535, 537 (Tex. App.–Beaumont

1997, no pet.) (stating that notice encompassing a three and one-half month span was

sufficient). This is so because victimized children may not remember specific dates but

rather general time periods. Hohn v. State, 951 S.W.2d at 537, quoting Sledge v. State,

903 S.W.2d 105 (Tex. App.–Fort Worth 1995), aff’d, 953 S.W.2d 253 (Tex. Crim. App.

1997).

Moreover, here, the State described the various extraneous crimes as occurring “on

or about” a particular date. Admittedly, the time span encompassed by that phrase is not

precise. See Thomas v. State, 753 S.W.2d 688, 693 (Tex. Crim. App. 1988) (stating that

“[w]here an indictment alleges that some relevant event transpired 'on or about' a particular

date, the accused is put on notice to prepare for proof that the event happened at any time

within the statutory period of limitations”). Yet, use of that phrase has long been accepted

as a reasonable means of informing the defendant of the crime for which he is accused of

committing. See e.g., id. And, if it may be used as a means of describing the date on

which an accused committed the crime for which he has been indicted, we see little reason

to say it cannot be utilized as a legitimate means of describing the date on which he

7 committed extraneous offenses which the State intends to prove during the punishment

phase of the trial. Given this, the leeway afforded the State under art. 37.07, §3(g) when

children are involved, the fact that A. and P. were children when they were assaulted by

appellant, the statement in the notice at bar that the prosecution sought to show that

appellant committed multiple crimes against P. and A. on or about a specified day, the

absence of evidence and argument illustrating that those extraneous crimes were

committed at times other than on or about the dates mentioned in the notice, and the

absence of any assertion by appellant that the State’s proffer of evidence surprised him,

we cannot say that he was denied the notice contemplated by art. 37.07, §3(g). In sum,

appellant has not shown that the trial court abused its discretion in admitting the evidence

at issue.

Having overruled all of appellant’s issues, we affirm the judgment of the trial court.

Brian Quinn Justice

Publish.