Alvin Earl Murphy v. State

Opinion issued June 5, 2008 In The Court of Appeals For The First District of Texas NO. 01-07-00472-CR ALVIN EARL MURPHY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1055439 MEMORANDUM OPINION Appellant Alvin Earl Murphy was convicted by a jury of sexual assault. See Tex. Penal Code Ann.§ 22.011 (Vernon Supp. 2007). Appellant pleaded true to two enhancement paragraphs that he had a previous felony conviction for burglary and a previous felony conviction for possession of a controlled substance. The jury assessed punishment at imprisonment for 61 years. Appellant brings a single issue, challenging the trial court's refusal to admit evidence that the victim, V.Y., had sexual contact with her boyfriend on the day of the sexual assault. We affirm. V.Y. testified at trial that appellant--her father--sexually assaulted her. DNA evidence was also introduced at trial that a vaginal swab from V.Y. tested positive for semen and that appellant could not be excluded as a contributor. Appellant attempted to introduce testimony from the nurse who examined V.Y. concerning V.Y.'s statement to the nurse that V.Y. had sexual contact with her boyfriend on the day of the sexual assault. The trial court ruled that the evidence was inadmissible under Texas Rule of Evidence 412, the rape shield rule, and allowed appellant to make an offer of proof containing the nurse's testimony. Appellant did not attempt to introduce testimony from either V.Y. or her boyfriend. In his single point of error, appellant contends that the nurse's testimony was admissible under two exceptions to Rule 412: (1) the evidence was necessary to rebut or explain scientific or medical evidence offered by the State (Rule 412(b)(2)(A)) and (2) the evidence was constitutionally required to be admitted (Rule 412(b)(2)(E)). Appellant did not preserve error in the trial court by arguing that the nurse's testimony was admissible under Rule 412(b)(2)(E), but instead relied solely on Rule 412(b)(2)(A). Appellant therefore has waived any argument based on Rule 412(b)(2)(E). See Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a). In the offer of proof, the nurse testified that V.Y. said she had sexual contact with her boyfriend on the day of the sexual assault. Appellant's counsel also stated that he would have asked the nurse about a note in the medical records that "they needed to get an additional . . . swab" from V.Y.'s boyfriend. Appellant did not attempt to cross-examine V.Y. or her boyfriend on this issue. Appellant's offer of proof is based on hearsay evidence. Rule 412 cannot be used to get otherwise inadmissible testimony before the jury. See Kennedy v. State, 184 S.W.3d 309, 315 (Tex. App.--Texarkana 2005, pet. ref'd). Accordingly, we conclude that the trial court correctly denied appellant's attempts to introduce hearsay testimony concerning whether V.Y. had sexual intercourse with her boyfriend on the day of the sexual assault. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) (holding that trial court's judgment will be upheld if supported by any applicable legal theory). We overrule appellant's point of error and affirm the judgment of conviction. Sam Nuchia Justice Panel consists of Justices Nuchia, Hanks, and Higley. Do not publish. Tex. R. App. P. 47.2(b).