Kenon Roberts v. State ( 2007 )

Affirmed and Memorandum Opinion filed August 7, 2007

Affirmed and Memorandum Opinion filed August 7, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00076-CR

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KENON ROBERTS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1009966

M E M O R A N D U M   O P I N I O N

Appellant, Kenon Roberts, appeals his conviction by a jury for aggravated sexual assault of a child.  The jury assessed punishment at ten years= confinement, but recommended the sentence be suspended and appellant be placed on community supervision for ten years.  In his sole point of error, appellant argues a substantial right was violated by the admission of a videotaped interview.  We affirm.

Complainant (AE.G.@) told her grade school counselor that her mother=s boyfriend, appellant, had Atouched her wrong.@  The counselor reported the encounter to Family and Protective Services (ACPS@).^[1] CPS visited the apartment where E.G. lived and, after a brief discussion with E.G. and appellant, CPS removed her from the home and took her to the Children=s Assessment Center (ACAC@).  Claudia Mullin, a forensic interviewer at the CAC, conducted and videotaped an interview with E.G. about the sexual abuse she reported to her counselor. Subsequently, appellant was indicted for the aggravated sexual assault of a child.

In his sole point of error, appellant contends the trial court erred in admitting the videotaped interview of E.G.  When reviewing a trial court=s ruling on evidentiary matters, we use an abuse of discretion standard.  Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004).  If the ruling was correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling was made, we must uphold the judgment.  Id.

At trial, E.G. testified she had made the entire scenario up and had lied to her counselor and the investigators.  However, on the videotape, E.G. stated explicitly and clearly the events surrounding the allegations for which appellant was tried.  When the State offered the videotape as evidence, appellant objected on the basis that the statements on the videotape were out-of-court statements, the witness had already testified to the contents, and Texas Rules of Evidence 404(b) prohibited the admission of prior bad acts included on the videotape.  The State argued the purpose for the videotape was to impeach E.G.  On appeal, appellant argues the State improperly introduced the videotape as impeachment evidence. 

To preserve error for appeal, a timely objection must be made at the trial court.  Tex. R. App. P. 33.1.  The complainant, on appeal, must comport with the objection made at the trial court.  Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).  Appellant did not to make an objection regarding improper impeachment.  See In re A.B., 133 S.W.3d 869, 875 (Tex. App.CDallas 2004, no pet.) (holding the party, after a hearsay objection was sustained, did not preserve error for appeal by failing to object to an improper impeachment predicate).  Instead, appellant=s counsel said AI have no problem,@ and clarified this statement by saying AI have no objection to specific portions of the tape that are offered to rebutt [sic] specific testimony of [E.G.].@^[2] 

Appellant further argues the videotape was inadmissible as substantive evidence.  Generally, evidence of prior inconsistent statements and prior consistent statements may be used for impeachment, not as primary evidence to prove guilt.  Flores v. State, 48 S.W.3d 397, 404 (Tex. App.CWaco 2001, pet. ref=d).  The State argues the cross examination of Mullin was sufficient to Aopen the door@ for introduction of the video under Rule 107 of the Texas Rules of Evidence.^[3] Rule 107 is one of admissibility and permits the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter opened up by the adverse party.  Credille v. State, 925 S.W.2d 112, 116 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d).  The purpose of the rule is to reduce the possibility the jury will be misled from hearing only a portion of the act, conversation, or writing.  Id.

Appellant claims he did not mention the videotape, he did not attempt to introduce the videotape into evidence, and Mullin could testify to the statements.  See Washington v. State, 856 S.W.2d 184, 186 (Tex. Crim. App. 1993) (holding the admission of a videotape was an error because: (1) no mention of the tape was made during cross examination; (2) defense made no attempt to introduce the tape=s contents into evidence; and, (3) the witness was available to answer the questions about the interview).  To the contrary, appellant=s attorney raised the issue by extracting testimony about the videotape during cross-examination of Mullin.^[4] By his line of questioning, he attacked the credibility of E.G.=s statements because she was now claiming she had lied about appellant=s having Atouched her wrong.@

Appellant=s attorney opened the door by insinuating that if a person were to watch the video, he could Asee what happened.@  See Graves v. State, 176 S.W.3d 422, 429 (Tex. App.CHouston [1st Dist.] 2004, pet. struck) (holding the global references to the interview raised issues about the videotape and opened the door for the admission of the videotape into evidence).  Under Rule 107, a party is permitted to introduce other types of evidence to clarify and make fully understood the opponent=s evidence.  Credille, 925 S.W.2d at 116.  The jury, being unable to see the videotape and judge Asuch things as demeanor, tone of voice, appearance, [and] whether she was vague,@ could easily be misled by these questions.  Appellant=s attorney did not place into doubt E.G.=s specific statements, but her veracity during the taped interview, with his questions during the cross-examination of Mullin.  See Sauceda, 129 S.W.3d at 123 (stating a videotape is admissible to clarify specific statements taken out of context).  We find the State was permitted to introduce the entire videotape to clarify appellant=s questions, and the evidence was admissible under Rule 107.

Accordingly, we overrule appellant=s sole point of error and we affirm the trial court.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed August 7, 2007.

Panel consists of Chief Justice Hedges and Justices Hudson and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Although the proper name for the agency is Family and Protective Services, it was referred to in testimony as CPS.

^[2]  Appellant claims E.G. denied the statements on the stand, and extrinsic evidence was inadmissible.  See Tex. R. Evid. 613(a) (AIf the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted.@).  By failing to make a timely objection, appellant did not preserve error.  Therefore, we need not reach the issue of the evidence being proper or improper for impeachment.

^[3]  Rule 107 of the Texas Rules of Evidence states:

When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given.  AWriting or recorded statement@ includes depositions.

Tex. R. Evid. 107.

^[4]  The following exchange occurred between appellant=s attorney and Mullin during cross-examination:

Q:   Ms. Mullin, do you have a videotape of this entire interview?

A:   I don=t personally have it here, but there is one at the Children=s Assessment Center.

Q:   And Ms. Spence got a copy of it, if you know?

A:   I believe she did, yes.

Q:   And about how long did the interview take place?

A:   33 minutes.

Q:   Is there anything about this case, about this accusation that you know or think you know, other than what=s on the videotape?  And I mean by that, were there some questions you asked off the tape, or were there some investigations that you conducted in which you learned something that=s not on the tape about [E.G.]=s statements?

A:   No, I don=t do investigations.

Q:   Okay. So B and I don=t want to put words in your mouth, I just want to know if it is a fair statement to say, if we looked at the videotape we would see what happened?

A:   What she told me, yes.

Q:   And including such things as demeanor, tone of voice, appearance, whether she was vague, things of that B

A:   That kind of thing, yes.