Home/Court of Appeals of Texas/Theodore Nelson, Jr. v. State

Theodore Nelson, Jr. v. State

Court of Appeals of Texas·Decided January 30, 2004·No. 07-02-00186-CR·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 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 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 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 vi

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