Scotty Fitzgerald McKamey v. State

IN THE TENTH COURT OF APPEALS No. 10-05-00241-CR Scotty Fitzgerald McKamey, Appellant v. The State of Texas, Appellee From the 54th District Court McLennan County, Texas Trial Court No. 2004-1002-C MEMORANDUM Opinion McKamey appeals his convictions for aggravated robbery. See Tex. Penal Code Ann. § 29.03(a) (Vernon 2003). We affirm. In McKamey’s one issue, he contends that the trial court erred in overruling McKamey’s objection to testimony concerning an extraneous robbery. See Tex. R. Evid. 403-404. “As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion . . . .” Tex. R. App. P. 33.1(a). “[A] defendant who allows evidence to be introduced from one source without objection forfeits any subsequent complaints about the introduction of the same evidence from another source.” Reyes v. State, 84 S.W.3d 633, 638 (Tex. Crim. App. 2002) (citing Stoker v. State, 788 S.W.2d 1, 12 (Tex. Crim. App. 1989)); accord Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). By the same token, “if [a] defendant objects to [the] admission of evidence but [the] same evidence is subsequently introduced from another source without objection [the] defendant waives [the] earlier objection.” Howard v. State, 153 S.W.3d 382, 385 (Tex. Crim. App. 2004), cert. denied, 164 L. Ed. 2d 132 (2006); see Massey v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996). McKamey permitted numerous references to the extraneous robbery to pass without objection before first objecting. McKamey argues that his trial “counsel protested that he had not objected to” the witness’s “references on purpose because he did not think her references were substantive enough to object and thereby alert the jury.” (Br. at 2.) McKamey thus forfeited his complaint. We overrule McKamey’s issue. Having overruled McKamey’s sole issue, we affirm. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed March 29, 2006 Do not publish [CRPM] normal'> Appellant v. The State of Texas, Appellee From the 159th District Court Angelina County, Texas Trial Court No. 23736 MEMORANDUM Opinion Appellant Sam Childress was indicted for intentionally and knowingly producing “a performance, to-wit: a video tape that included sexual conduct by John Doe (pseudonym), a child younger than 18 years of age, and [Childress] knew the character and content of the material.” He pled guilty to the offense of sexual performance by a child. See Tex. Pen. Code Ann. § 43.25 (Vernon 2003). Childress elected punishment by the trial court, who sentenced him to fifteen-years’ imprisonment for violating section 43.25(b), a second-degree felony with a punishment range of two to twenty years. See id. § 43.25(b-c); § 12.33(a) (punishment range of 2 to 20 years for second-degree felony). In his first and second issues, Childress complains that the trial judge abused his discretion by using an improper standard in assessing punishment and that this standard disqualified the trial judge under article 5, section 11 of the Texas Constitution (disqualifying judge who is related within third degree to party) and article 30.01 of the Texas Code of Criminal Procedure (disqualifying judge where “party injured may be connected with him by consanguinity or affinity within the third degree”). These complaints are based on the trial judge’s statement at the sentencing hearing that he viewed this case as if Doe were his own 15-year old child. The State points out that the trial judge’s comments arguably were made in response to Childress’s testimony, which the trial judge appeared to construe as lacking in remorse toward Doe. Childress did not raise these complaints in the trial court. His motion for new trial asserted only that the punishment was “contrary to the law and the evidence.” He asserts on appeal that no complaint in the trial court was necessary because the constitutional and statutory disqualifications are mandatory and, citing Gamez v. State, that a judge’s disqualification may be raised for the first time on appeal. See Gamez v. State, 737 S.W.2d 315, 318 (Tex. Crim. App. 1987) (objection to judge on disqualification grounds may be made at any time, including for first time on appeal, and may not be waived). The constitutional and statutory disqualifications simply do not apply on their face since Doe was not in fact related to the trial judge. Childress thus urges alternatively that the trial judge’s comments reflected a bias that warranted disqualification because it was of such a nature as to deny him due process. See McClenan v. State, 661 S.W.2d 108, 109 (Tex. Crim. App. 1983) (in child sexual abuse case, disqualifying bias not shown by trial judge’s statement that if certain facts were proved, judge would not grant probation). Childress asserts that such bias was shown because the trial judge placed himself in a posture that would have warranted disqualification. The burden in McClenan for bias is a showing that if a reasonable person knew of all the circumstances, he would harbor doubt about the judge's impartiality. Id. Under the facts of this case and the circumstances of the trial judge’s comments, that burden is not met. Although we do not necessarily approve of the trial judge’s comments, we overrule issues one and two. The indictment in this case alleged that Childress “did then and there intentionally or knowingly produce a performance, to-wit: a video tape that included sexual conduct by John Doe (pseudonym), a child younger than 18 years of age, and [Childress] knew the character and content of the material.” The offense of sexual performance by a child can be either a second-degree felony (§ 43.25(b-c)) or a third-degree felony (§ 43.25(d-e)). Section 43.25(b) provides: “A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance.” Tex. Pen. Code Ann. § 43.25(b). Section 43.25(d) provides: “A person commits an offense if, knowing the character and content thereof, he produces, directs, or promotes a performance that includes sexual conduct by a child younger than 18 years of age.” Id. § 43.25(d). Without benefit of a plea bargain, Childress pled guilty to the second-degree felony (§ 43.25(b-c)) of sexual performance by a child. After a punishment hearing, the trial court sentenced him to fifteen-years’ imprisonment. In his third issue, Childress complains that the fifteen-year sentence falls outside the range of punishment because the language in the indictment reflects that he actually pled guilty to section 43.25(d), a third-degree felony, rather than to section 43.25(b), a second-degree felony. The State agrees with Childress, as do we. Because the fifteen-year sentence falls outside the punishment range for the indicted offense to which Childress pled guilty, we sustain Childress’s third issue and reverse the trial court’s judgment. We thus need not address his fourth and fifth issues, which assert that the fifteen-year sentence is cruel and unusual punishment. See Tex. R. App. P. 47.1. Childress asks us to remand the case for a new punishment hearing, while the State says that we should reform the judgment to reflect a sentence with the proper range of punishment. In this circumstance, we may only remand for a new punishment stage. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004-05); Levy v. State, 818 S.W.2d 801, 803 (Tex. Crim. App. 1991) (when defendant enters guilty plea without benefit of plea bargain and trial judge assesses punishment not authorized by law, appropriate remedy is to allow guilt finding to remain and to remand case to trial court for proper assessment of punishment). We reverse the trial court’s judgment and remand the case for further proceedings consistent with this opinion. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Reversed and remanded Opinion delivered and filed May 25, 2005 Do not publish [CR25]