Johnathan Paul McNichols v. State

Affirmed and Memorandum Opinion filed January 29, 2009 Affirmed and Memorandum Opinion filed January 29, 2009. In The Fourteenth Court of Appeals _______________ NO. 14-08-00125-CR _______________ JOHNATHAN PAUL McNICHOLS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1114809 M E M O R A N D U M   O P I N I O N Appellant Johnathan Paul McNichols, a juvenile, was certified to stand trial as an adult for aggravated sexual assault. A jury found him guilty and sentenced him to 60 years= incarceration. In two issues on appeal, he asserts that the trial court erred by (a) denying his motion to suppress and (b) admitting certain witness testimony during the punishment phase of the trial. We affirm. I. Background Appellant has not challenged the sufficiency of the evidence; we therefore discuss the facts only briefly here and throughout the opinion as necessary to address his appellate issues. On January 17, 2007, appellant took a plastic air soft gun from a WalMart store and followed a 30-year-old Hispanic woman out of the store, to the parking lot, and then to her minivan. He approached the woman, threatened her with the air soft gun wrapped in a bandana, and demanded that she give him her money. He then instructed her to move to the passenger seat, got into the van, and drove out of the parking lot. After a brief stop, he made her drive the van to a drive-through convenience store to buy some cigarettes and then park in the empty lot of a skating rink. He instructed her to get in the back of the van and remove her clothing; she complied. Appellant forced her to perform oral sex on him and attempted vaginal penetration. The complaining witness was able to fight appellant off; he grabbed his clothes and fled the scene, leaving behind a PlayStation 2 in a black case. The complaining witness immediately reported the assault to police. Initially, officers were unable to develop any suspects. They obtained still photos from the WalMart surveillance videos and ran a CrimeStoppers piece in the local media. Several witnesses identified appellant from the photographs, including his parents. The investigating officer, Sergeant Thomas Keen of the Harris County Sheriff=s Department, met with appellant=s parents and discussed appellant=s activities on the day in question. His parents reported that he had been dropped off and picked up at school as usual that day. They told Keen that appellant said he lost his PlayStation 2 that day. Appellant=s parents provided Sergeant Keen with several photographs, but none were appropriate for a photo array. They also informed Keen that appellant left home the day after the offense and had not returned. Keen obtained a yearbook page from appellant=s seventh-grade yearbook. After concealing the names, he showed it to the complainant. She identified appellant=s photograph. After speaking with appellant=s parents, Keen filed charges against appellant for robbery, kidnapping, and sexual assault. Officers picked up an individual who identified himself as Johnathan McNichols on January 25, 2007. Keen requested that appellant be held in the juvenile holding facility of the Wallisville substation, which is a certified juvenile processing center. Regarding parental notification, Keen testified as follows: Q. [by the State]: And were his parents notified? A. [by Keen]: I did notify the parents that morning. I don=t know the exact time, whether it was around 1:00 or before 1:00 or after 1:00, but I personally made contact with the family and notified his family of - - that he was incarcerated. Q.: And did his father ultimately come down to the Wallisville substation? A.: Yes, he did. Keen testified that he took appellant before magistrate judge Mike Parrot, who informed appellant of the charges and his rights. Keen then interviewed appellant, and appellant provided a statement in which he confessed to the offense and articulated several specific details, such as the location of the air gun. After taking appellant=s statement, Keen returned appellant to Judge Parrot. Judge Parrot again spoke with appellant; appellant signed his confession in Judge Parrot=s presence, as required by section 51.095 of the Texas Family Code. At his trial, appellant=s statement was admitted into evidence over his objection based on Chapter 51 of the Texas Family Code.[1] Additionally, the complaining witness testified regarding the offense and identified appellant as her assailant. The jury found appellant guilty as charged. During the punishment hearing, several witnesses testified regarding appellant=s prior bad acts. He had a history of acting out in school, and recently had acted out in a sexual manner. Appellant also had stolen his father=s vehicle and broken into a local convenience store. In addition, he had started two fires, one in school and one at a school bus stop near his home. Luanne Martin, a counselor at appellant=s middle school, testified regarding appellant=s school behavior and described two occasions in which appellant recently acted out sexually in school. During her testimony, the following colloquy occurred: Q.: What is your opinion about Johnathan=s - - Johnathan=s ability to be in the community and not be a threat to others? [Defense counsel]: Your Honor, I have to object. I don=t believe this witness is qualified or has the background or expertise to give that side - - that sort of opinion on future dangerousness. [The Court]: Overruled. You may answer. A.: Well, because I=ve seen Johnathan, if Johnathan is in a situation . . . where he is not in control and where you=re going to make him to do something that he doesn=t want to do and this has been seen over and over and over again in the classroom and in other situations with other children, Johnathan is going to fight back. He is going to do something to get out of that situation. And it doesn=t, I don=t think it matters what it is that he=s going to do, in an aggressive manner. It may be just running away, which he=s done before for at least for a day or two; he ran away from school. It may be going to set a fire to get out of that situation. It may be going to hit somebody to get the attention off of him, I don=t know. But that is my greatest fear because it seems to be escalat[ing] as he=s gotten older to more aggressive techniques. Q.: Do you think he=s dangerous to other people? A.: Yes, ma=am, I do. Q.: Do you think that will escalate as he becomes older? A.: If he doesn=t get the proper help, I think so. Q.: Do you think that Johnathan is capable, if given a set of rules and being told you need to follow these rules for a period of time, is he capable of doing that? A.: He has not been in the past. Appellant=s parents and another school counselor testified on his behalf at the punishment hearing. The jury also heard evidence of potentially extenuating circumstances. In particular, appellant was diagnosed with ADHD[2] when he was in elementary school and had been raped by a cousin at a young age. The State then presented the testimony of Dr. Nicole Dorsey, a clinical psychologist with the Children=s Assessment Center, who testified in detail regarding the treatment appellant could receive in prison. She also testified regarding her deep concern about the future of an individual who had displayed the type of behavior appellant had displayed at such a young age. At the close of the punishment phase, the jury sentenced appellant to 60 years= incarceration. The trial court rendered judgment on the jury=s verdict and this appeal timely ensued. II. Issues Presented In his first issue, appellant contends that, because his parents were not Apromptly notified@ as required by the Texas Family Code, the trial court erred in denying his motion to suppress his out-of-court statement. Appellant asserts in his second issue that the trial court abused its discretion in admitting testimony by Luanne Martin regarding his future dangerousness. III. Analysis A. Motion to Suppress The State argues that appellant=s first issue has not been preserved for review. We agree. Appellant=s written motion to suppress was based on section 51.095 of the Texas Family Code, which specifies the manner in which a juvenile must be advised of his rights. This subsection provides that a statement of a child may be admitted in evidence when certain procedures have been followed. See Tex. Fam. Code Ann. ' 51.095 (a) (Vernon Supp. 2008) (providing that a statement of a child is admissible when, among other things, (a) the statement is in writing and the child received warnings from a magistrate before it was made; (b) the written statement was signed in the presence of the magistrate by the child with no law enforcement personnel present; and (c) the magistrate is Afully convinced@ that the child understands the nature and contents of the statement and signed it voluntarily). Additionally, appellant=s trial counsel objected to the admission of appellant=s statement as follows: With respect to [appellant=s statement], I will reurge the Motion to Suppress that has been done in writing with the Court in that it violates Mr. McNichols=[s] federal and state constitutional rights, and the statement was not taken in conformity with Chapter 51 of the Texas Family Code. On appeal, however, appellant does not dispute that the procedures described in section 51.095 were followed, but instead challenges the admission of the statement on the ground that the investigating officer allegedly failed to promptly notify appellant=s parents when he was arrested, as required by Chapter 52 of the Family Code. See id. ' 52.02(b) (AA person taking a child into custody shall promptly give notice of the person=s action and a statement of the reason for taking the child into custody, to . . . the child=s parent, guardian, or custodian[.]@). Because his complaint on appeal does not comport with his complaint at trial, he has failed to preserve this argument for review. See Hill v. State, 78 S.W.3d 374, 382 (Tex. App.CTyler 2001, pet. ref=d). Moreover, any error in admitting appellant=s statement was harmless because there is ample evidence to support his conviction without his statement. See Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000) (A>[A] criminal conviction should not be overturned for non‑constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.=@ (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). Here, the complaining witness immediately notified police about her attack. She also testified in detail regarding the offense and positively identified appellant as her assailant. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005) (sexual assault conviction supportable on uncorroborated testimony of victim alone if victim informed another within one year of offense). The physical evidence discovered in the complaining witness=s vehicle supported her statements. Several witnesses, including appellant=s parents, identified appellant from the CrimeStoppers photographs released through the media. The State also introduced surveillance camera footage from the WalMart location showing appellant following the complaining witness to her vehicle. Given the record before us, we have fair assurance that any error in admitting appellant=s statement did not influence the jury or had but a slight effect. Thus, we would overrule appellant=s first issue even if it had been preserved for review. B. Punishment Testimony Turning to appellant=s second issue, we review the trial court=s evidentiary rulings for abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) (en banc). We will not disturb the trial court=s ruling if it is Awithin the zone of reasonable disagreement.@ Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). Instead, we will uphold the ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). Finally, error in allowing inadmissible evidence is cured when the same evidence is admitted without objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). As a preliminary matter, we note that a lay witness may offer opinion testimony regarding opinions or inferences that are rationally based on her perceptions and helpful to a clear understanding of her testimony or the determination of a fact in issue. See Tex. R. Evid. 702. Although appellant objected to Martin=s qualifications, her testimony was based on her personal experience with appellant, having known him and worked with him through the school district for several years. She testified that based on her personal knowledge of appellant and her experiences with him, she believed his aggressive behavior could escalate as he gets older if he did not receive the Aproper help.@ Her testimony was rationally based on her perceptions and was helpful to the determination of the appropriateness of appellant=s punishment. See id. Thus, her testimony was admissible as the opinion testimony of a lay witness, and the trial court did not abuse its discretion in admitting it. Further, even if the trial court erred in admitting her testimony, this error was harmless. See Tex. R. App. P. 44.2(b) (AAny [non-constitutional] error . . . that does not affect substantial rights must be disregarded.@); Reese, 33 S.W.3d at 243 (stating that criminal convictions should not be overturned based on non-constitutional errors having either no influence or only a slight effect on the jury). Numerous witnesses testified about appellant=s prior bad acts and the escalating nature of his behavior, from stealing his father=s vehicle, breaking into a convenience store, starting fires, acting out in a sexual manner toward other students, to the offense at hand, aggravated sexual assault. In addition, another of the State=s witnesses, Dr. Nicole Dorsey, a clinical psychologist with the Children=s Assessment Center, testified as follows: Q.: If you had before you an individual and you learned that the individual was violent and aggressive with authority figures, openly acted out in pretty much every setting, school, and in his home, community, had set fires on multiple occasions, and had advanced to the point of taking a pellet gun and kidnapping an individual and raping them, based on your experience, do you see some red flags there? A.: Absolutely. This would be an individual I=d be extremely concerned about. I=d be concerned about whether or not this person has any remorse or empathy for other people in his life. And those types of behaviors, especially if they=re seen early on in a child, they=re suggestive of someone who might later develop what we call Antisocial Personality Disorder. Some people think of it as being psychopath really is what some people sometimes think of it, but the psychology term is Antisocial Personality Disorder. And that=s a lifelong condition of someone who doesn=t have any respect for authority, rules, or remorse for their actions or behaviors. I would be very concerned about someone like that. Dorsey went on to testify that someone with such a disorder could become a very serious threat to society as he gets older. In light of this similar testimony,[3] coupled with the testimony of several other witnesses regarding appellant=s numerous bad acts and his increasingly violent behavior, any error in admitting Martin=s relatively brief testimony was harmless. See Reese, 33 S.W.3d at 243. Under these circumstances, we overrule appellant=s second issue. III. Conclusion Having determined that appellant=s first issue was not preserved for our review and having overruled appellant=s second issue, we affirm the judgment of the trial court. /s/ Eva M. Guzman Justice Panel consists of Justices Yates, Guzman, and Price.* Do Not Publish C Tex. R. App. P. 47.2(b). [1] Judge Parrot also testified at appellant=s trial, detailing the procedures he followed to ensure that appellant=s statutory rights were observed. [2] Attention Deficit Hyperactivity Disorder. [3] See Valle, 109 S.W.3d at 509 (error in admission of evidence cured when same evidence admitted without objection elsewhere). * Senior Justice Frank C. Price sitting by assignment.