Morell Biggers, III v. State

Opinion issued November 6, 2008 Opinion issued November 6, 2008 In The Court of Appeals For The First District of Texas NOS. 01-07-00665-CR and 01-07-00667-CR MORELL BIGGERS, III, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Cause Nos. 039641 & 044718 MEMORANDUM OPINION A jury found Morell Biggers, III, guilty of two felony charges of sexual assault of a child, assessed punishment at imprisonment for ten years, and recommended that the sentence be suspended. In accord with the jury’s recommendation, the trial court suspended the sentence and placed Biggers on community supervision for five years. The trial court further ordered that the sentences run consecutively. On appeal, Biggers challenges two evidentiary rulings, contending that the trial court erred in admitting a videotaped interview of the complainant taken at the Harris County Children’s Assessment Center after the complainant had testified at trial, and excluding evidence of the complainant’s past sexual behavior. Biggers also contends that the trial court erred in denying his motion for mistrial based on improper jury argument. Finding that the trial court did not abuse its discretion in making the challenged evidentiary rulings, and that Biggers failed to preserve his improper jury argument issue for appeal, we affirm. Background The complainant’s mother, Monica Rogers, met Biggers and began dating him in 1987. During the relationship, Rogers became pregnant, and informed Biggers that she was carrying his child. Biggers became angry and upset, suspecting that Rogers had become pregnant by another man. He broke off the relationship with Rogers and informed her that he did not want to be involved in the child’s life. Rogers raised her daughter, V., without Biggers’s participation. When V. was approximately eleven years old, however, Rogers found it necessary to apply for public assistance. As part of the application process, the attorney general’s office required paternity testing, which established that Biggers was V.’s father. Biggers was required to pay child support, and received court-ordered visitation with V. He visited with V. only once during that period. Several years later, though, Biggers accepted an invitation to a family party held to celebrate V.’s prom. By that time, V. was fifteen years old. Biggers began to enforce his visitation rights, so that, beginning in the summer of 2003, V. went to Biggers’s home every other weekend and on Wednesday nights. Shortly after V. began spending time at Biggers’s home, V.’s demeanor began to change. She became withdrawn, gained weight, and did not want to spend time with her mother and siblings. Rogers noticed the change and asked V. what was wrong, but V. refused to talk about it. Rogers heard V. arguing on the telephone with Biggers several times. Once, V. returned to the house twenty minutes after Biggers picked her up for weekend visitation. Following that incident, V. refused to return to Biggers’s house. Several months later, in December 2003, V. revealed to her cousin F., that Biggers had sexually assaulted her, but that she didn’t want F. to tell anyone. Some time later, on or about December 22, 2003, V. told her mother about the assaults. Rogers took V. to the Children’s Assessment Center, where V. met with the police, a social worker and a physician. Following an investigation, the State charged Biggers with two counts of sexual assault. He timely appeals from his conviction on those charges. Discussion Standard of review for evidentiary error Two of Biggers’s challenges on appeal concern evidentiary rulings. We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). An abuse of discretion occurs only if the trial court’s decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Montgomery, 810 S.W.2d at 382; Roberts, 29 S.W.3d at 600. Error in the admission of evidence is also subject to a harm analysis under Rule 44.2(b). See Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Couchman v. State, 3 S.W.3d 155, 160 (Tex. App.—Fort Worth 1999, pet. ref’d). Under that analysis, an error does not result in reversal unless it affects a defendant’s substantial rights, that is, if it has had a substantial, injurious effect or influence on the jury’s verdict. Tex. R. App. P. 44.2(b); see King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall v. State, 961 S.W.2d 639, 643 (Tex. App.—Fort Worth 1998, pet. ref’d). Admission of videotaped interview Biggers’s first issue contends that the trial court erred in admitting a videotaped interview of V. taken by a forensic investigator at the Harris County Children’s Assessment Center. Biggers objects to admission of the videotape on the grounds that it is cumulative of the live testimony V. had already provided, and that it improperly bolsters her testimony. Although relevant, a trial court may exclude evidence if its probative value is substantially outweighed by the needless presentation of cumulative evidence. Tex. R. Evid. 403. “Cumulative” implies that other relevant evidence has been received. Briones v. State, 12 S.W.3d 126, 128 (Tex. App.—Fort Worth 1999, no pet.). Rule 403’s wording suggests that where cumulative evidence is offered, exclusion is not mandatory, but only an alternative for a trial court to consider in promoting judicial efficiency. Id.; see also Alvarado v. State, 912 S.W.2d 199, 212–13 (Tex. Crim. App. 1995). Whether the trial court’s ruling is outside the zone of reasonable disagreement thus depends on whether the videotape’s probative value was substantially outweighed by its effect on the trial’s efficiency. Here, although the videotaped interview contained information similar to that to which V. had already testified, it is not “needlessly” cumulative within the meaning of rule 403. Briones, 12 S.W.3d at 129. V.’s videotaped testimony rebuts the defense’s effort to impugn her motive for reporting that Biggers had sexually assaulted her. The defense devoted a substantial portion of its cross-examination of V. to questioning her motive for accusing Biggers of sexual assault, implying that she falsely accused Biggers because she had argued with him, because she was jealous of Biggers’s relationship with her step-sisters, and because Biggers gave his other daughters Christmas presents but had not given any to her. The videotaped interview was recorded before Christmas and thus shows V.’s demeanor closer in time to these incidents, including her reluctance to report the abuse. These aspects of her videotaped interview were not present in her trial testimony and properly rebut the issue of motive raised by Biggers. For the same reasons, the trial court did not abuse its discretion in admitting the videotape over Biggers’s bolstering objection. Bolstering generally refers to evidence that improperly supports the testimony of an unimpeached witness or adds credence or weight to earlier-introduced evidence. State v. Balderas, 915 S.W.2d 913, 919 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). Further, bolstering occurs when the testimony’s sole purpose is to enhance the credibility of a witness or source of evidence, without adding anything to the proof of a relevant fact. Cohn v. State, 849 S.W.2d 817, 819–20 (Tex. Crim. App. 1993). Regardless of whether a witness is impeached, additional evidence to the same effect is not “bolstering” if, as here, it makes any substantive contribution or incrementally tends to further a fact of consequence. See Wigiert v. State, 948 S.W.2d 54, 59 (Tex. App.—Fort Worth 1997, no pet.). Here, although the videotape was cumulative in the sense that it depicted the subject matter that V. addressed in her testimony, it is not “needlessly” cumulative within the meaning of Rule 403 because it substantively contributed to the State’s rebuttal of the defense’s claim that she fabricated the charges against Biggers. See Draheim v. State, 916 S.W.2d 593, 601 (Tex. App.—San Antonio 1996, pet. ref’d). Accordingly, we hold that the trial court did not abuse its discretion in overruling Biggers’s cumulative evidence and bolstering objections. Exclusion of evidence of the complainant’s past sexual history Next, Biggers contends that the trial court abused its discretion in refusing to admit evidence of V.’s past sexual history. Generally, evidence of specific instances of an alleged victim’s past sexual behavior is inadmissible in a prosecution for sexual assault. Tex. R. Evid. 412(b). This general prohibition is subject to certain exceptions, allowing for admission of such evidence when: (1) such evidence is admitted in accordance with [the procedural requisites set forth in] paragraphs (c) and (d) of this rule; (2) it is evidence: (A) that is necessary to rebut or explain scientific or medical evidence offered by the State; (B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged; (C) that relates to the motive or bias of the alleged victim; (D) is admissible under Rule 609; or (E) that is constitutionally required to be admitted; and (3) its probative value outweighs the danger of unfair prejudice. Tex. R. Evid. 412(b). According to Biggers, the trial court should have admitted evidence of V.’s past sexual behavior to rebut her alleged implication that she had no prior sexual experience. Biggers’s proffered evidence, however, is inadmissible for two reasons. First, it does not come within any exception to Rule 412’s general prohibition. Second, contrary to Biggers’s assertion, V. did not testify to her own sexual experience or lack thereof. Rather, Biggers misplaces his contention on statements that (1) Biggers told V., during the assaults, that he was “trying to show her” about “be[ing] with a man,” and that she was “going to have to learn to do it sometime,” and (2) when she was reluctant to report the abuse to the authorities, her mother encouraged her by telling her that “no one has the right to take your innocence.” Neither of these statements raises an issue of admissibility under Rule 609. See Tex. R. Evid. 412(b)(2)(D). Accordingly, because the proffered evidence was not admissible under any exception to Rule 412(b), we hold that the trial court did not err in excluding it. Thus, we need not reach whether the probative value of the proffered testimony outweighed its danger of unfair prejudice. See Tex. R. App. P. 47.1. Motion for mistrial In his third issue, Biggers complains that the trial court erred in denying his motion for mistrial, contending that the prosecutor’s closing argument improperly created a false impression concerning the issue of V.’s past sexual experience. Biggers did not move for mistrial until after the jury had returned a verdict, and thus waived this complaint by failing to make a timely objection. Tex. R. App. P. 33.1(a)(1); see Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (“[A] defendant’s failure to object to a jury argument . . . forfeits his right to complain about the argument on appeal.”); see also Bias v. State, 937 S.W.2d 141, 144 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (holding that there is no issue presented for review when no objection is made, even though jury argument might be incurably harmful). Conclusion We hold that the trial court did not abuse its discretion in admitting the videotaped interview and excluding evidence of the complainant’s past sexual experience. We further hold that Biggers waived any complaint concerning the trial court’s denial of his motion for mistrial. Accordingly, we affirm the judgment of the trial court. Jane Bland Justice Panel consists of Justices Jennings, Hanks, and Bland. Do not publish. Tex. R. App. P. 47.2(b).