Teddy Ogilvie Norman v. State ( 2009 )

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Opinion issued November 12, 2009



  In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-08-00087-CR

____________

TEDDY OGILVIE NORMAN, Appellant

v.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1057182

MEMORANDUM OPINION

A jury convicted appellant, Teddy Ogilvie Norman, of sexual assault of a child and assessed punishment at four years in prison. See Act of May 29, 2005, 79th Leg., R.S., ch. 268, § 4.02, 2005 Tex. Gen. Laws 713 (amended 2009) (current version at Tex. Penal Code Ann. § 22.011 (Vernon Supp. 2009)).⁽¹⁾ Appellant contends that 1) the trial court erred in admitting evidence of other crimes, wrongs, or acts, 2) the trial court erred in overruling appellant's motion for mistrial, and 3) evidence was factually insufficient to support his conviction. We affirm.

Background

At the time of the incident, November 2005, appellant lived two doors down from the complainant, V.M. At that time, V.M. was fourteen years old and appellant was twenty-six years old. V.M. did not know appellant well, but she was friends with appellant's fourteen-year-old cousin, Timmy, who lived in the same household as appellant. V.M.'s household also included her extended family. V.M.'s cousin, Antonio Rodriguez (age 24), and aunt, Esther Hernandez (age 26), were friends with appellant. V.M. would occasionally see appellant and "say hi" when he was over at her home visiting her cousin and aunt. Similarly, V.M. had been over to appellant's home to visit his cousin, when appellant "passed by." V.M. described her relationship with appellant as "more of a hi-and-bye" relationship.

In the fall of 2005, V.M. met and started dating a twenty-year-old male named Wilmer. V.M. sneaked out of her house at night on several occasions to spend time with Wilmer because he was older and her parents would not approve. V.M. noticed that appellant saw her leaving her house on one of the occasions that she sneaked out of her house to spend time with her boyfriend.

On the afternoon of November 4, 2005, V.M. got off her school bus and saw appellant and his cousin standing outside their home. Appellant called V.M.'s name and said he wanted to talk to her. V.M. dropped off her school bag at her house and told her father where she was going. Once back outside, appellant told V.M. that her father had approached him wanting to speak with him. Appellant indicated that he thought it was probably about her sneaking out. V.M. told him "[n]ot to say anything," and appellant agreed. Then, appellant invited V.M. to come inside. Once inside, appellant offered V.M. wine to drink. V.M. testified that she, appellant, and appellant's cousin sat together and talked. At first appellant asked V.M. about how she was doing in school, then the conversation switched to her aunt and cousin. The things appellant was saying about her aunt and cousin made V.M. feel uncomfortable. V.M. told appellant she needed to go home and asked him for gum or candy to hide the smell of wine on her breath. Appellant went upstairs and then returned downstairs. Appellant told V.M. that he had candy upstairs and instructed her to follow him, pulling her towards the stairs. Appellant's cousin remained downstairs. Once upstairs, appellant opened the door to a room, and V.M. stood in the hallway. V.M. testified that appellant "pulled[ed] out a Wal-Mart bag full of candy" and placed it on the bed, which seemed strange to her at the time. Appellant told V.M. to come in and select a piece of candy. As V.M. looked through the bag of candy, appellant shut the door. Appellant returned to the conversation about V.M.'s father wanting to talk to him about something. Again, V.M. told him not to say anything about her boyfriend or sneaking out. V.M. testified that appellant responded by saying, "If I'm going to do that favor for you[,] what are you going to do for me?" V.M. said that she offered to "hook him up with a friend" that could sell him drugs or "[h]ook him up with a friend as in boyfriend and girlfriend." Appellant was not interested and instead suggested that V.M. allow him to perform oral sex on her. V.M. refused and left the house.

V.M. told her boyfriend and her friend about what happened that afternoon. However, she testified that she did not tell her parents that afternoon because she did not want her parents to find out about her boyfriend or that she had been sneaking out.

One week later, in the early hours of Friday, November 11, 2005, V.M. saw appellant again. Around 1:00 a.m., V.M. awoke to the sound of something hitting her bedroom window. She looked out her window and could see someone standing in the driveway. She could not see the person clearly but assumed it was one of her friends or her boyfriend trying to get her attention. She went downstairs and recognized it was appellant.

The windows in V.M.'s kitchen were open with just the screen covering them because her father had painted the inside of the house that day. V.M. went to the screen and asked appellant several times, "What are you doing here?" V.M. testified that she kept thinking she needed to "get this guy out of here." Despite the way their last conversation ended, V.M. answered the door because she was afraid that appellant would tell her parents about her boyfriend and that she had been sneaking out of the house at night. So she slowly opened the kitchen door so as to not make any noise and stepped outside onto the doorstep. Once outside, V.M. testified appellant pulled her by the elbow. V.M. pushed to try to get away. V.M. testified appellant was not acting as he normally does; he was "a little bit more tougher." V.M. struggled to get away, but eventually fell to the ground. Appellant crouched over her, and he became more aggressive. V.M. continued to fight to get away, but appellant held her down. V.M. testified that appellant's breath "smelled of beer." Appellant pulled V.M.'s shirt up and grabbed her breasts. V.M. pulled her shirt back down and continued to struggle to get away. While V.M. was pulling her shirt back down, she noticed that appellant "was doing something to his shorts." Then, V.M. testified that appellant started "messing with [her] pants." He was not able to pull her pants down all the way, but V.M. testified that he pulled them down to "where [her] thigh is." V.M. testified that appellant reached into her underwear and touched her vagina. V.M. testified that eventually she stopped fighting back because she "wanted to get it done with." She testified that she was crying, but she tried to remain silent because she did not want her parents to find out. V.M. testified that appellant put his fingers inside her. V.M. said she tried to press her thighs together and tried to cross her legs to prevent appellant from touching her. Finally, with a retaliatory tone in his voice, appellant said, "I'm done," then stood up, and walked away. V.M. told her school counselor the next morning school, and a police report was filed that day.

When appellant gave a statement to police shortly after the incident, he said he spent the evening at his girlfriend's house and then came home and watched television until he fell asleep shortly after 1:00 a.m. At trial, appellant offered alibi witnesses that testified to events appellant never mentioned in his written statement to police. Appellant's mother testified at trial that she and appellant were shampooing the carpets from 1:00 a.m. until 3:00 a.m. Appellant testified at trial that he mentioned shampooing the carpets when he spoke with police officers shortly after the incident, but that fact was not included in the written statement. Appellant also offered the alibi testimony of his cousin, who testified that appellant was watching television with him up until the time appellant started cleaning the carpets with his mother. That fact was also left out of appellant's written statement taken shortly after the incident.

A. Evidence of Other Crimes, Wrongs, or Acts

In his first issue, appellant argues that the court erred in admitting evidence of other crimes, wrongs, or acts pursuant to Texas Rule of Evidence 404(b). Specifically, appellant points to testimony of V.M. that appellant pulled her to follow him upstairs to his bedroom, presented her with candy, and suggested that she allow him to perform sexual acts on her in exchange for his agreement not to tell her dad about her boyfriend. Additionally, appellant points to V.M.'s testimony that she offered to get him illegal drugs, arguing that this testimony suggests appellant is a drug user. Because the testimony was offered and objected to at different times, we address the two separately.

1. Testimony Regarding Incident that Occurred Week Prior to Offense

The first portion of testimony that appellant points to is V.M.'s testimony that appellant pulled her to follow him upstairs to his bedroom, presented her with candy, and suggested that she allow him to perform sexual acts on her in exchange for his agreement not to tell her dad about her boyfriend. On appeal, appellant argues that the admission of this testimony was an abuse of discretion because it is not admissible under Texas Rule of Evidence 404(b).⁽²⁾ However, because appellant did not preserve error on 404(b) grounds, we cannot address the merits of this issue.

Appellant made an objection during the State's opening statement and, at that time, presented his motion in limine regarding extraneous offenses, among other things.⁽³⁾ The trial court addressed the motion outside the presence of the jury. During the discussion, appellant's counsel argued: "I received notice about this. However, I'm saying that this thing is not an extraneous offense. There is no relationship between that and the actual case that we're here for today." The court acknowledged the State's position that the evidence was relevant to explain to the jury the prior relationship and why V.M. answered the door. At that point, appellant's counsel abandoned his argument that the incident was an extraneous offense. Then, appellant's counsel clarified that his objection was that it was "more prejudicial than probative." Appellant argued that the testimony regarding the occurrence one week prior to the offense was not relevant because it was not true. Essentially, appellant argued that because the testimony would be contradicted by appellant's own testimony, it was not true and therefore more prejudicial than probative. The court responded that credibility of the witness was something for appellant to address in cross-examination. The court overruled appellant's objection and found the testimony more probative than prejudicial.

The court did not expressly state how it would rule on the motion in limine. However, an order was signed by the judge with the notation "Granted in Part -- Denied in Part as per record." The court allowed the prosecutor's opening statement to go into events occurring approximately a week before the incident to show a past relationship between V.M. and appellant. Appellant did not ask for a running objection at the time the court addressed the motion in limine and overruled appellant's objection.

During V.M.'s testimony, she testified, without objection, that appellant "grabbed [her]" and "pulled [her]" upstairs, presented her with a "bag full of candy," and returned to the conversation about her dad wanting to talk to him. Ms. Jones, trial counsel for appellant, finally objected during the following testimony:

(V.M.): I tell him not to say anything and then he tells me, I wasn't, but what --

(Ms. Jones): Objection, Your Honor, hearsay.

THE COURT: Do you want to approach the bench, please.

(Reported conference at the bench)

THE COURT: I made a previous ruling on this, haven't I?

. . .

THE COURT: Wasn't that your objection or motion in limine? I mean, I can give you a running objection is what I'm saying. Haven't I made rulings on these statements?

. . .

(Ms. Jones): Well, I would like a running objection from here on out that, you know, just on the record.

THE COURT: Why don't you clarify what it is you're asking me, for you're record, what you're asking me.

(Ms. Jones): Okay, Judge. To rule on it on all these statements that she's saying over and over again are hearsay statements.

  (Emphasis added.)

The court granted the running objection.

a) The Law: Preservation of Error

To preserve an issue for appellate review, the trial record must reflect that appellant made a timely objection stating the specific legal basis. Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1); Layton v. State, 280 S.W.3d 235, 238-39 (Tex. Crim. App. 2009). An objection stating one legal theory may not be used to support a different legal theory on appeal. See Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999) (holding relevancy objection did not preserve error concerning Rule 404 extraneous offense claim); Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993) (holding hearsay and relevancy objections did not address correct evidentiary basis for exclusion of extraneous offense testimony).

b) Analysis

We first note that V.M.'s testimony regarding what appellant said to her is not hearsay. Tex. R. Evid. 801(e)(2) (statement offered against party that is party's own statement is not hearsay). On appeal, appellant argues that the testimony was inadmissible under extraneous evidence (Texas Rule of Evidence 404(b)) grounds. Appellant's hearsay objection does not preserve the issue for appellate review on a different theory. See Medina, 7 S.W.3d at 643 (holding relevancy objection did not preserve error concerning Rule 404 extraneous offense claim); Camacho, 864 S.W.2d at 533 (holding hearsay and relevancy objections did not address correct evidentiary basis for exclusion of extraneous offense testimony). Accordingly, we need not address the merits of appellant's argument as to this testimony.

2. Testimony that V.M. Offered Appellant Drugs

Next, we address appellant's argument regarding V.M.'s testimony that she offered to provide appellant with drugs. Following the discussion outside the presence of the jury above, the jury was brought back into the courtroom and V.M. picked up where she left off with her testimony. The transcript reflects the following:

(Prosecutor): When you asked him again not to tell your parents, what's the next thing, what does he say? What's his response to that?

(V.M.): He told me, If I'm going to do that favor for you what are you going to do for me?

(Prosecutor): Okay. Do you offer to do anything for him?

(V.M.): Yeah.

(Prosecutor): What do you offer to do for him?

(V.M.): I told him if I could hook him up with a friend that was -- that has to deal with selling drugs.

(Prosecutor): Okay. What else?

(V.M.): Hook him up with a friend as in boyfriend and girlfriend.

THE COURT: Let me interrupt you just a minute. I need to excuse the jury for just a few minutes. Do not discuss the case, we'll being back in touch shortly.

A discussion was held outside the presence of the jury between the attorneys and the court. The court explained that it stopped the testimony because at the time the court ruled on the motion in limine, the court was not aware of any anticipated testimony relating to drugs. The prosecutor then stated that this was a statement V.M. had made to appellant, not a statement by appellant. The prosecutor also offered to clarify in front of the jury that appellant never accepted drugs from V.M. Finally, at that point, appellant voiced an objection to the testimony, arguing that nothing involving drugs had been disclosed previously and that it was highly prejudicial because it shows the jury "he is obviously . . . he's just a drug addict."

Outside the presence of the jury, the court questioned V.M. relating to her knowledge of appellant's involvement with illegal drugs. V.M. responded that appellant told her "[t]hat he does sell drugs." The prosecutor informed the court that he had previously instructed V.M. not to testify to anything appellant had said to her about dealing or using drugs. The court ruled that it would allow appellant to cross examine the witness and also admonished V.M., not to "go into any statements made by the defendant about drugs."

a) The Law: Preservation of Error

To preserve an issue for appellate review, the trial record must reflect that appellant made a timely, specific objection and obtained a ruling. Tex. R. App. P. 331(a)(1)(A); Tex. R. Evid. 103(a)(1); Layton, 280 S.W.3d at 238-39. In order for the objection to be "timely," it must be made at the first opportunity or as soon as the basis of the objection becomes apparent. Cruz v. State, 238 S.W.3d 381, 385 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd) (citing Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990)). In addition to the objection, the complaining party must obtain an adverse ruling on the record or object to the trial court's refusal to rule on the objection. Tex. R. App. P. 33.1(a); Thierry v. State, 288 S.W.3d 80, 85 (Tex. App.--Houston [1st Dist.] 2009, pet. ref'd); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).

b) Analysis

First, the objection was not timely. Following the complained-of testimony, the prosecutor asked V.M. another question and she answered before any objection was lodged. Even if the testimony was unexpected, as argued by appellant, the proper time for the objection was directly after the statement was made. Thus, the objection was untimely and did not preserve the error for appellate review. See Cruz, 238 S.W.3d at 385 (holding in order for objection to be "timely," it must be made at first opportunity or as soon as the basis of objection becomes apparent).

Further, appellant never obtained an adverse ruling on his objection. After appellant made the objection, the court discussed the issue but never ruled on the objection. Appellant did not object to the trial court's failure to make a ruling on the objection. Because appellant failed to get an adverse ruling on his objection, the issue is not preserved for appellate review. See Thierry, 288 S.W.3d at 85.

We overrule appellant's first issue.

B. Motion for New Trial

In his second issue, appellant argues the trial court abused its discretion by denying his motion for mistrial after V.M. alluded to other crimes, wrongs or acts of appellant. Specifically, appellant argues that V.M. "unexpectedly told the jury that she offered to supply [appellant] with illegal drugs."

1. The Law

"An appellant who moves for a mistrial without first requesting a less drastic alternative forfeits appellate review of that class of events that could have been cured by the lesser remedy." Ocon v. State, 284 S.W.3d 880, 886-87 (Tex. Crim. App. 2009) (citing Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)). An appellant is not required to progress sequentially from least to most serious remedy; however we will not reverse a trial court's judgment when a lesser, un-requested alternative could have cured the problem. Id. at 887 (citing Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004)). A witness's inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009).

2. Analysis

V.M. did not testify that appellant used or sold drugs. Rather, V.M. testified that appellant refused her offer to provide him with drugs. Appellant objected to the testimony, but the trial court did not rule on the objection. Appellant did not request an instruction to disregard the evidence. Appellant, however, did move for a mistrial, which the trial court denied.

We conclude the less drastic alternative of an instruction to disregard the evidence could have cured the admission of the evidence. See Ocon, 284 S.W.3d at 886-87. Therefore, appellant has forfeited his appellate review for failing to request an instruction to disregard. See id.

We overrule appellant's second issue.

C. Factual Sufficiency

In his third issue, appellant argues that the evidence adduced at trial was factually insufficient to support his conviction. Specifically, appellant argues his alibi and character witnesses conclusively established he did not commit the offense.

1. Standard of Review

In our factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set aside the verdict for factual insufficiency only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the proof of guilt is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1,11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we also cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In our factual-sufficiency review, we must also discuss the evidence that, according to appellant, most undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

The fact-finder alone determines the weight to be given to contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5; see also Lancon v. State, 253 S.W.3d 699, 705-07 (Tex. Crim. App. 2008).

2. The Law

  In order to convict appellant of sexual assault of a child, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of the sexual organ of a child by any means. See Act of May 29, 2005, 79th Leg., R.S., ch. 268, § 4.02, 2005 Tex. Gen. Laws 713 (amended 2009) (current version at Tex. Penal Code Ann. § 22.011 (Vernon Supp. 2009)). A "child" is a person younger than 17 years of age. See id..

The testimony of a child victim alone is sufficient to support a conviction for sexual assault of a child. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Lee v. State, 176 S.W.3d 452, 458 (Tex. App.--Houston [1st Dist.] 2004), aff'd, 206 S.W.3d 620 (Tex. Crim. App. 2006); see also Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (holding testimony of sexual victim alone is sufficient evidence of penetration).

3. Analysis

Evidence was presented at trial that V.M. was fourteen years old at the time of the offense. V.M. testified that appellant forced her to the ground and held her down while he penetrated her vagina with his fingers.

Appellant's mother testified at trial that she and appellant were shampooing the carpets from 1:00 a.m. until 3:00 a.m the night of the offense. Appellant also offered the alibi testimony of his cousin who testified that appellant was watching television with him up until the time appellant started cleaning the carpets with his mother. In appellant's written statement taken by police shortly after the incident, appellant provided an alibi that he was watching television but failed to mention he was with his cousin or his mother. The jury could have found it suspicious that appellant did not include these potential alibi witnesses in his initial statement to police.

Appellant points to his testimony and testimony of his alibi witnesses, arguing that we should believe his witnesses over the testimony of the complainant. This argument ignores the fact that a reviewing court must be careful to avoid substituting its judgment for that of the jury, particularly in matters of credibility. See Cain, 958 S.W.2d at 408-09. Appellate courts should afford almost complete deference to a jury's decision when that decision is based on the evaluation of credibility. Lancon, 253 S.W.3d at 705. The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court who relies on the cold record. Id. The jury may choose to believe some testimony and disbelieve other testimony. Id. at 707.

The jury could have reasonably found appellant's witnesses to not be credible. Further, the testimony of V.M. alone is sufficient to support the finding of guilt. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005).

Weighed in a neutral light, the evidence is not so weak that the verdict is clearly wrong and unjust. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). Also, there is no objective basis in the record to conclude that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. We hold the evidence is factually sufficient to support the conviction for sexual assault of a child.

We overrule appellant's third issue.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Keyes, Alcala and Hanks.

Do not publish. See Tex. R. App. P. 47.2(b).
1. The 81^st Texas Legislature amended Texas Penal Code Section 22.011, effective September 1, 2009. However, the amendments do not affect the disposition of this case.
2. Texas Rule of Evidence 404(b) provides: "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction." Tex. R. Evid. 404(b).
3. Specifically, appellant's motion in limine addressed testimony regarding appellant's immigration status, any alleged prior convictions without the supporting judgment and sentence, and extraneous offenses.