Richard Charles Owings, Jr. v. State ( 2018 )

Opinion issued March 15, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00132-CR
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RICHARD CHARLES OWINGS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1454997
MEMORANDUM OPINION
A jury convicted appellant, Richard Charles Owings, Jr., of the first-degree
felony offense of aggravated sexual assault of a child and assessed his punishment
at thirty years’ confinement.1 In two issues, appellant contends that the trial court
erred by (1) allowing the State to cross-examine him about the underlying facts of
his prior conviction for aggravated robbery and (2) refusing to require the State to
elect which of the instances of sexual assault presented in the trial testimony it would
rely upon for a conviction. On original submission, a majority of the panel reversed
appellant’s conviction and remanded the case for a new trial, holding that the trial
court committed reversible error by failing to require the State to elect a specific
instance of sexual assault. Because the majority remanded the case for a new trial,
it did not reach appellant’s first issue.
The State subsequently filed a petition for discretionary review. The Court of
Criminal Appeals reversed the judgment of the majority, holding that the trial court’s
error in failing to require an election was harmless. See Owings v. State, — S.W.3d
—, No. PD-1184-16, 2017 WL 4973823, at *8 (Tex. Crim. App. Nov. 1, 2017). The
Court of Criminal Appeals therefore remanded the case to this Court to address
appellant’s remaining issue regarding the State’s cross-examination of appellant
concerning the underlying facts of his prior conviction.
We affirm.
1
See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i)–(iii), 22.021(a)(2)(B) (West
Supp. 2017).
2
Background
Appellant was previously married to F.M., the grandmother of the
complainant, K.M. Appellant was not K.M.’s biological grandfather. K.M. and her
mother occasionally lived with F.M. and appellant, and they lived in F.M.’s house
for a period of time in 2009 and 2010. F.M. and appellant divorced in 2011.
In January 2013, K.M. disclosed to F.M. that appellant had sexually abused
her beginning when she was five or six years old. At trial, K.M. specifically
described four different instances of sexual abuse. She testified that one instance
occurred in the bedroom that F.M. and appellant shared. K.M. described how
appellant took off both of their clothes, laid her down on the bed, and vaginally
penetrated her. K.M. testified that appellant routinely carried a knife with him and
that he had it on this occasion. Appellant showed her the knife, “put it to [her],” and
told her that if she told anybody about what he was doing, he would hurt her,
someone else, or one of her pets. Appellant placed the knife on the nightstand next
to the bed where he could reach it and where K.M. could see it.2 K.M. then testified
about three other specific instances of sexual assault, but she did not mention the
presence of a knife in connection with those instances.
2
After K.M. disclosed to F.M. that appellant had sexually abused her, she underwent
a physical exam and a forensic interview. K.M. told the nurse practitioner
conducting the exam and the forensic interviewer that appellant had threatened her
with a knife.
3
Appellant testified on his own behalf and denied all of the allegations of
inappropriate sexual behavior with K.M. He agreed that he commonly carried a
knife with him in his front pocket and that he would put the knife on the nightstand
by his bed when he took it off, but he denied pointing the knife at K.M. or threatening
to harm other people or K.M.’s pets. When asked if K.M. was lying about the abuse
allegations, appellant speculated that F.M. had encouraged K.M. to make allegations
against him and that K.M. had received “a lot of positive attention” as a result of the
allegations.
Appellant acknowledged on direct examination that he had been convicted of
aggravated robbery in 1986 and felony driving while intoxicated in 2012. On cross-
examination, appellant and the State had the following exchange:
The State: Okay. And so, Mr. Owings, we heard that you said
that you were convicted of aggravated robbery,
right?
Appellant: Yes, I was.
The State: And you were sentenced to 25 years in TDC?
Appellant: Yes.
The State: Fair to say then that you have threatened people
with weapons before to get what you want?
Defense counsel: Objection, Your Honor, it’s not material or relevant.
The Court: Overruled.
Defense counsel: It’s not for the purpose of—the reason that that
offense was admitted. It was admitted for the
purpose of impeachment.
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The Court: I understand.
The State: So, you have threatened people with weapons to get
what you want before, correct?
Appellant: I thought I didn’t go in there with a gun they
wouldn’t take me seriously.
The State: Okay. Where did you go in?
Defense counsel: Your Honor, I’m going to object. It’s not material.
The Court: Sustained.
The State then asked appellant about his felony DWI conviction and did not ask any
further questions about the aggravated robbery conviction. Neither party mentioned
this testimony in closing argument.
Ultimately, the jury found appellant guilty of the offense of aggravated sexual
assault of a child and assessed his punishment at thirty years’ confinement.
Underlying Facts of Prior Conviction
In his sole remaining issue on appeal, appellant contends that the trial court
erred by allowing the State to cross-examine him about the underlying facts of his
prior conviction for aggravated robbery.
A. Standard of Review and Governing Law
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010). We
will not reverse unless the record demonstrates a clear abuse of discretion. Zuliani
v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A trial court abuses its
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discretion only when the court’s decision was so clearly wrong as to lie outside the
zone within which reasonable persons might disagree. Id.
Rule of Evidence 609 permits the admission of evidence of the fact of a prior
felony conviction offered to attack a witness’s character for truthfulness. TEX. R.
EVID. 609(a). However, the details of the prior conviction are generally inadmissible
for the purpose of impeachment. Mays v. State, 726 S.W.2d 937, 953 (Tex. Crim.
App. 1986); Jabari v. State, 273 S.W.3d 745, 753 (Tex. App.—Houston [1st Dist.]
2008, no pet.). “This is because evidence of prior convictions and extraneous bad
acts ‘is inherently prejudicial, tends to confuse the issues in the case, and forces the
accused to defend himself against charges which he had not been notified would be
brought against him.’” Arebalo v. State, 143 S.W.3d 402, 407 (Tex. App.—Austin
2004, pet. ref’d) (quoting Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App.
1972)).
Error in the admission of evidence is non-constitutional error subject to a harm
analysis under Texas Rule of Appellate Procedure 44.2(b). TEX. R. APP. P. 44.2(b);
Jabari, 273 S.W.3d at 754. We disregard any non-constitutional error that does not
affect the defendant’s substantial rights. TEX. R. APP. P. 44.2(b); Jabari, 273 S.W.3d
at 754. A substantial right is affected when the error had a substantial and injurious
effect or influence in determining the jury’s verdict. Jabari, 273 S.W.3d at 754
(citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). We will not
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overturn a conviction for non-constitutional error if, after examining the record as a
whole, we have fair assurance that the error did not influence the jury or had but
slight effect. Id. (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
1998)).
B. Preservation of Error
The State contends that appellant failed to preserve his complaint for appellate
review because appellant did not receive an adverse ruling from the trial court
concerning this line of questioning. Specifically, the State argues that after defense
counsel initially objected, the trial court overruled the objection. Then, the
prosecutor re-stated the question, defense counsel objected a second time, and, this
time, the trial court sustained the objection. Defense counsel did not request an
instruction to disregard or move for a mistrial, and the State abandoned that line of
questioning. The State argues that, as a result, appellant “received the relief he
requested,” and, therefore, he cannot raise this complaint on appeal.
The trial court did sustain an objection during the State’s line of questioning,
but it did not sustain an objection to the question that appellant complains about on
appeal. The State asked appellant, “Fair to say then that you have threatened people
with weapons before to get what you want?” Defense counsel objected, arguing that
this question was not “material or relevant” and that appellant’s prior conviction was
“admitted for the purpose of impeachment.” The trial court overruled the objection,
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and the State again asked, “So, you have threatened people with weapons to get what
you want before, correct?” Defense counsel did not object to this question. Instead,
appellant answered, stating, “I thought [if] I didn’t go in there with a gun they
wouldn’t take me seriously.” The State then asked, “Where did you go in?” Defense
counsel objected to this question, stating, “It’s not material.” The trial court
sustained this objection, and the State moved on to a different line of questioning.
Appellant does not complain about the State’s second question—“Where did
you go in?”—on appeal. Instead, he complains about the question, “Fair to say then
that you have threatened people with weapons before to get what you want?” The
trial court did not sustain an objection to that question. Thus, contrary to the State’s
assertion, appellant did not receive the relief that he requested with respect to the
question he complains about on appeal.
However, although appellant did not receive the relief that he requested, we
nevertheless agree with the State that appellant did not preserve his complaint for
appellate review. To preserve a complaint for appellate review, the complaining
party must “let the trial judge know what he wants, why he thinks he is entitled to it,
and . . . do so clearly enough for the judge to understand him at a time when the
judge is in the proper position to do something about it.” Pena v. State, 285 S.W.3d
459, 464 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909
(Tex. Crim. App. 1992)). The party’s complaint on appeal must comport with the
8
complaint made at trial. Id.; see Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.
App. 2012) (stating that, to preserve error, “[t]he point of error on appeal must
comport with the objection made at trial” and noting that even constitutional errors
can be forfeited by failure to properly object at trial).
Here, the following exchange occurred:
The State: Fair to say then that you have threatened people
with weapons before to get what you want?
Defense counsel: Objection, your Honor, it’s not material or relevant.
The Court: Overruled.
Defense counsel: It’s not for the purpose of—the reason that that
offense was admitted. It was admitted for the
purpose of impeachment.
The Court: I understand.
Defense counsel therefore objected on the basis that the State’s question was not
“material or relevant” and that appellant’s prior conviction for aggravated robbery
was “admitted for the purpose of impeachment.”
Defense counsel did not object on the basis that, although the fact of a prior
conviction is admissible pursuant to Rule 609, the underlying details of that prior
conviction are generally not admissible. Defense counsel also did not object on the
basis that the question sought improper character evidence in violation of Rule of
Evidence 404(b), which he also argues on appeal. Appellant’s objection at trial,
therefore, does not comport with the complaint asserted on appeal, and he has thus
9
failed to preserve this complaint for appellate review. See Pena, 285 S.W.3d at 464;
see also Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999) (holding that
relevancy objection at trial does not preserve error concerning Rule 404 claim);
Martinez v. State, 345 S.W.3d 703, 705 (Tex. App.—Amarillo 2011, no pet.) (stating
that objection based on Rule 609 was not “inherent” in defendant’s Rule 403
objection made at trial and citing unpublished memorandum opinions holding that
trial objections based on Rule 404 and relevancy grounds do not preserve Rule 609
complaints for appellate review).
C. Analysis
Even if appellant had preserved his complaint that the trial court erroneously
allowed the State to elicit underlying details of his prior conviction for aggravated
robbery, we conclude that any error in allowing this testimony was harmless.
The trial court properly admitted evidence that appellant had a prior
aggravated robbery conviction from 1986. The trial court then allowed the State to
ask appellant, “Fair to say then that you have threatened people with weapons before
to get what you want,” implying that appellant used a weapon while committing the
aggravated robbery.3 Appellant confirmed this implication, stating, “I thought [if] I
didn’t go in there with a gun they wouldn’t take me seriously.” This was the only
3
See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011) (providing that person
commits offense of aggravated robbery if he commits offense of robbery and he
“uses or exhibits a deadly weapon”).
10
testimony admitted concerning the details of appellant’s aggravated robbery
conviction.
With respect to the charged offense of aggravated sexual assault against K.M.,
K.M. testified unequivocally that appellant had sexually assaulted her on several
occasions over the course of several years, and she provided detailed testimony
about four specific different occasions, including the acts that appellant made her
perform and where the acts occurred. F.M., the nurse who conducted K.M.’s
physical exam, and K.M.’s forensic interviewer all testified that K.M. disclosed to
them instances of sexual abuse that were consistent with her trial testimony. K.M.
testified, without objection, that appellant, who routinely carried a knife with him at
all times, used that knife on one occasion to threaten her while he sexually assaulted
her, pointing the knife at her, laying it on the nightstand within his reach and within
her line of sight, and threatening the safety of others and her pets if she told anyone
about what happened. The nurse who conducted K.M.’s physical exam and K.M.’s
forensic interviewer both testified, without objection, that K.M. disclosed to them
that appellant had threatened her with his knife. Appellant denied the allegations
against him and suggested that K.M. had been “encouraged” to make the allegations
against him by F.M.
This case hinged on the jury’s assessment of K.M.’s credibility versus its
assessment of appellant’s credibility. Appellant admitted that he had two prior
11
felony convictions, including one for aggravated robbery, which could have affected
his credibility. See Arebalo, 143 S.W.3d at 410 (noting, in concluding that erroneous
admission of details of defendant’s prior conviction was harmless, that defendant
had admitted his prior conviction and “the fact of the conviction itself indicated some
propensity towards violence and could have weighed against his credibility”). The
trial court included the following instruction in its charge to the jury:
You are instructed that certain evidence was admitted before you in
regard to the defendant having been charged and convicted of an
offense or offenses other than the one for which he is now on trial. Such
evidence cannot be considered by you against the defendant as any
evidence of guilt in this case. Said evidence was admitted before you
for the purpose of aiding you, if it does aid you, in passing upon the
weight you will give his testimony, and you will not consider the same
for any other purpose.
Furthermore, after the trial court sustained an objection from defense counsel
regarding the State’s inquiry into details of appellant’s prior aggravated robbery
conviction, the State moved on to asking about appellant’s other felony conviction.
Neither party again addressed the details of appellant’s aggravated robbery
conviction, in questioning or in argument, and neither party again mentioned the
knife exhibited during the assaults on K.M.
Based on this record, in which appellant provided brief testimony about the
details of a prior conviction while the State presented strong evidence of the charged
offense, we conclude that the trial court’s error in allowing the State to elicit a detail
of appellant’s prior aggravated robbery conviction did not have a substantial or
12
injurious effect in determining the jury’s verdict and did not affect appellant’s
substantial rights. See TEX. R. APP. P. 44.2(b); Jabari, 273 S.W.3d at 754 (noting,
in holding that trial court’s error in allowing details of defendant’s prior convictions
was harmless, that “[a]mple other evidence existed on which the jury could have
found [the defendant] guilty”).
We overrule appellant’s sole remaining issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Jennings, Keyes, and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
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