Anthony N. Brown v. State

Affirmed and Memorandum Opinion filed June 28, 2007 Affirmed and Memorandum Opinion filed June 28, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00156-CR ____________ ANTHONY N. BROWN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 1024415 M E M O R A N D U M   O P I N I O N A jury found appellant Anthony N. Brown guilty of aggravated sexual assault as charged in the indictment and assessed punishment at twelve years= confinement in the Texas Department of Criminal Justice, Institutional Division. The trial court sentenced him accordingly. On appeal, he challenges the denial of his oral request for a continuance and the admission of evidence concerning his sexual solicitation of the complainant=s sister. We affirm. I. Factual and Procedural Background The complainant, K.A., was a ten-year-old girl who lived with her mother, her twelve-year-old sister, N.G., and her brother, Junior. In August 2004, the family moved into an apartment with appellant, who was the mother=s boyfriend. On August 30, 2004, K.A. and her brother arrived home from school around 3:15 or 3:20 p.m. K.A.=s mother was at work, but appellant was home and opened the door for them. K.A. had started playing with her brother when appellant called her into the back room. When K.A. walked into the room, appellant=s pants were down. K.A. closed the door, and either she or appellant locked it. Appellant then told K.A., APut it in your mouth.@ He then put his penis in K.A.=s mouth. Because appellant would whip K.A. whenever she allegedly misbehaved, she was afraid appellant would again do something similar. At some point, appellant asked K.A., Awould [N.G.] ever do that?@ When N.G. arrived home, appellant walked out of the back room to let N.G. into the apartment. Shortly after N.G. arrived home, appellant began writing to N.G. and using K.A. as a messenger. In the first letter, appellant told N.G. he wanted to teach her about sex and promised she could have anything she wanted if he would let him do that. Appellant pleaded with N.G. to say, AYes.@ The second Aletter@ contains both appellant=s and N.G.=s writing. N.G. avoided giving appellant an answer. In the second letter, appellant wrote, AI want to show you how to kiss, since you want me to tell you everything, I want to taste your coochie. Yes men and women do that, why won=t you say yes.@ N.G. was Akind of scared@ when she read the first letter and became more afraid after appellant wrote back to her. After appellant wrote back the last time and told the girls it was time to take a bath, N.G. told K.A. it was time to leave and go tell someone. The girls asked to take out the trash and fled to their aunt=s house. Although they forgot to put on their shoes, they walked and ran several hours to arrive there, covering a distance of five to six miles. On the way to their aunt=s house, K.A. told N.G. what appellant had done to her and wanted to know what was in the letters.[1] When the girls arrived at their aunt=s house, they showed her the letters and told her what had happened. The aunt took the girls and the letter to a nearby police station. Both girls were examined at the hospital that night although N.G. stated that appellant had not done anything to her. When appellant was arrested, he gave the officers an audio-taped statement in which he mentioned the letters before the police referred to them. He admitted making the statements in the letters and admitted he was wrong to have done so. Appellant was charged by indictment with aggravated sexual assault of a person younger than fourteen. Trial was to a jury, and just before the beginning of voir dire, appellant orally requested a two-day postponement or continuance so that counsel hired by his mother could represent him. The trial court did not grant the request, and appellant proceeded with appointed counsel. The jury found appellant guilty as charged in the indictment and assessed punishment at twelve years= confinement. II. Issues Presented Appellant presents two issues for our review. In his first issue, he contends the trial court violated his Sixth Amendment right to be represented by retained counsel when the court denied his oral request for a two-day continuance. In his second issue, he contends the trial court abused its discretion in admitting letters he wrote to N.G. asking that she allow him to teach her about sexual acts. III. Analysis A. Denial of Appellant=s Request for a Continuance to Allow Representation by Retained Counsel In his first issue, appellant contends the trial court violated his Sixth Amendment right to be represented by retained counsel. His complaint arises from the trial court=s denial of appointed defense counsel=s oral motion, made on the first day of trial, immediately before jury selection. According to defense counsel, from the time of counsel=s appointment, over five months earlier, appellant had been telling counsel he wanted to retain his own attorney. Defense counsel further explained that as recently as the previous week, appellant Awas making the same statements that his mother was, in fact, in the process at that time of hiring an attorney . . . [and] has now informed me today, this morning, that . . . his mother has, in fact, employed an attorney for him.@ Defense counsel stated the attorney was Aa man by the name of Davis who has been paid to represent [appellant].@ Davis was not available that day, but would be present two days later, on Wednesday. Appointed counsel then requested a Apostponement@ until Wednesday when Davis, the attorney of appellant=s choice, could appear and represent appellant. Counsel stated the motion was not for the purposes of delay, but Aso that justice can be done and so that [appellant] can have the attorney of his own choosing as opposed to me representing him.@ Appellant agreed those were the circumstances of the request. When the court inquired whether there was anyone in the courtroom on appellant=s behalf, no one responded. Defense counsel then intervened, stating he was present on appellant=s behalf and had checked the courtroom earlier, but could not find appellant=s mother or girlfriend, who were supposed to be there. The court concluded: So that the record is clear, in looking at the Pretrial Service Interview sheet from August 23rd of 2005, [appellant] indicated to Pretrial Services that he will hire a private attorney; and from August 23rd of 2005 until today=s date, February 6th of 2006, no other attorney has been present in this courtroom ever that has signed up on behalf of this case.@ The court then requested the bailiff to summon the venire panel. A motion for continuance not in writing and not sworn preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999); see Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08 (Vernon 2006). The motion in the present case was neither sworn nor in writing. Accordingly, appellant has not preserved his first issue. Additionally, even had appellant preserved the issue, he is not entitled to relief on the merits. An appellate court reviews the grant or denial of a motion for continuance under an abuse of discretion standard. See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (en banc); Hubbard v. State, 912 S.W.2d 842, 843 (Tex. App.CHouston [14th Dist.] 1995, no pet.). Although the right to assistance of counsel under the Federal and Texas Constitutions and Texas statute contemplates a defendant=s right to obtain assistance from counsel of the defendant=s choosing, the right to counsel of choice is not absolute. Gonzalez v. State, 117 S.W.3d 831, 836B837 (Tex. Crim. App. 2003). A[W]hile there is a strong presumption in favor of a defendant=s right to retain counsel of choice, this presumption may be overridden by other important considerations relating to the integrity of the judicial process and the fair and orderly administration of justice.@ Id. at 837.[2] A defendant may not manipulate his right to select counsel to obstruct the orderly procedure of the courts or to interfere with the fair administration of justice. Robles v. State, 577 S.W.2d 699, 704 (Tex. Crim. App. [Panel Op.] 1979). Thus, a defendant may not wait until the day of trial to demand other counsel or to request appointed counsel=s dismissal so he can retain counsel. Id. In the present case, appellant waited until the day of trial to request a continuance. Although he requested only two days, he presented no substantiation, by written and sworn motion or the presence of the person who purportedly had paid for the attorney, that he, in fact, had new counsel and that counsel would be ready two days later. We hold the trial court did not abuse its discretion in denying appellant=s request for a continuance and did not violate his right to retained counsel. We overrule appellant=s first issue. B. Admission of Letters Appellant Wrote to N.G. In his second issue, appellant contends the trial court abused its discretion in admitting Aextraneous sexual misconduct involving [his] solicitation of sex from the complainant=s sister [N.G.]@ Specifically, he complains of the admission of State=s Exhibits 1-A, 1-B and 2 C letters appellant acknowledged he had written to N.G. and in which he told her, among other matters, he wanted to Abe the one who teaches you about sex.@ The State first argues appellant did not preserve his complaint because he failed to object each time the State offered the evidence. The State also argues the evidence was relevant and admissible to show appellant=s mental state and to provide a context for the victim=s outcry. The State initially offered the letters after N.G. identified them as letters she exchanged with appellant. Appellant objected on the grounds of hearsay, lack of relevance, and their inflammatory and prejudicial nature. When asked how the letters related to the issue before the court, the State responded they were relevant to appellant=s and N.G.=s state of mind C that the letters were the reason why K.A. and N.G. left the apartment that night. Because the reasons underlying N.G.=s leaving the apartment had not yet become an issue, the court sustained appellant=s objection. N.G. next testified she was Akind of scared@ when she read the first letter and became more afraid after appellant wrote back to her. After appellant wrote back the last time and told the girls it was time to take a bath, N.G. told K.A. it was time to leave and go tell someone. According to N.G., she did not then know what appellant had done to K.A., but was leaving the apartment based on what was in the letters. On the way to their aunt=s house, K.A. told N.G. what appellant had done to her and wanted to know what was in the letters. The State again offered the letters. Appellant renewed his previous objections Aas to the materiality of the issues in this trial.@ The court overruled his objection and admitted the exhibits. The State then read the letters to N.G. section by section, and asked her whether what counsel was reading was what the letters contained. N.G. responded affirmatively and identified each section as having been written by appellant or by her. Appellant did not object to N.G.=s testimony. To preserve error in admitting evidence, a party must make a proper objection and get a ruling on that objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Additionally, a party must object each time the inadmissible evidence is offered or must obtain a running objection. Id. Any error in the admission of evidence is cured when the same evidence comes in elsewhere without objection. Id. N.G.=s affirmations of the content of the letters presented the same evidence as did the letters themselves. N.G.=s unobjected to testimony cured any error in admission of State=s exhibits 1-A, 1-B, and 2. See id. at 509B10.[3] Any error in the admission of evidence is harmless if the same evidence is admitted elsewhere without objection. Chamberlain v. State, 998 S.W.3d 230, 235 (Tex. Crim. App. 1999). N.G.=s affirmations of the content of the letters presented the same evidence as did the letters themselves. N.G.=s unobjected‑to testimony rendered harmless any error in admission of State=s exhibits 1‑A, 1‑B, and 2. See id. [4] Accordingly, we overrule appellant=s second issue. IV. Conclusion Having overruled appellant=s two issues, we affirm the trial court=s judgment. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed June 28, 2007. Panel consists of Justices Frost, Seymore, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] There is conflicting testimony about when K.A. told N.G. what appellant had done to her. K.A. first testified she told N.G. before the letter writing began. She later testified she told N.G. when they were en route to their aunt=s house. N.G. testified K.A. first told her when they were en route to the aunt=s house and she, N.G., decided to leave the apartment based on what was in the letters. [2] Gonzalez involved disqualification of chosen counsel. See Gonzalez v. State, 117 S.W.3d 831, 834B35 (Tex. Crim. App. 2003). [3] Evidence of the contents of two portions of the letters (appellant=s statements he wanted to teach N.G. about sex and wanted to taste her coochie) also was introduced in appellant=s audiotaped statement to police after his arrest, State=s exhibit 4. Appellant objected to this statement on the ground of lack of proper predicate, but not on the ground it contained extraneous offense evidence. Similar evidence was introduced without objection through testimony from the girls= aunt. [4] Evidence of the contents of two portions of the letters (appellant=s statements he wanted to teach N.G. about sex and wanted to taste her coochie) also was introduced in appellant=s audiotaped statement to police after his arrest, State=s exhibit 4. Appellant objected to this statement on the ground of lack of proper predicate, but not on the ground it contained extraneous offense evidence. Similar evidence was introduced without objection through testimony from the girls= aunt.