Bradley Riggs v. State

NO.  07-10-0154-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C MARCH 7, 2011 ______________________________ BRADLEY LAWRENCE RIGGS, JR., Appellant v. THE STATE OF TEXAS, Appellee ______________________________ FROM THE 249th DISTRICT COURT OF JOHNSON COUNTY; NO. F44129; HON. WAYNE BRIDEWELL, PRESIDING ______________________________ Memorandum Opinion ______________________________ Before QUINN, C.J., and HANCOCK and PIRLTE, JJ. Bradley Lawrence Riggs, Jr. (appellant) appeals his convictions for three counts of aggravated sexual assault of a child under fourteen years of age. Through four issues, appellant contends that 1) the trial court erred in admitting hearsay evidence, 2) the trial court erred by failing to instruct the jury about the possibility of appellant’s sentences being ordered to run consecutively, 3) the trial court erred in entering an order allowing his sentences to run consecutively because the punishment assessed was disproportionate, cruel and unusual, and 4) §3.03(b)(2) of the Texas Penal Code and article 21.24 of the Texas Code of Criminal Procedure are unconstitutional as applied to him. We affirm. Issue One – Hearsay Appellant contends that the State elicited impermissible hearsay from defense witness William Flynn, a psychologist, when it asked him about various “re-offender risk factors standardized by the Association for the Treatment of Sexual Abusers.” Assuming arguendo that appellant’s objection encompassed hearsay, the complaint was not uttered until the State had already addressed four such factors without objection from anyone. To preserve error for review, the appellant must make a timely, or contemporaneous objection. McBean v. State, 167 S.W.3d 334, 337 (Tex. App.–Amarillo 2004, pet. ref’d). That requirement is satisfied when the complaint is uttered at its earliest opportunity. Id. Waiting until the witness answered multiple questions on the same subject before complaining falls short of satisfying the test. Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997) (so holding). Therefore, we overrule appellant’s first issue. Issue Two – Consecutive Sentences Next, appellant contends that the trial court should have instructed the jury that the sentences it levied could run consecutively. This is purportedly so because statute mandates that the jury be told about parole and good time credit. See Tex. Code Crim. Proc. Ann. art. 37.07, §4(c) (Vernon Supp. 2010). Yet, he cites us to no statute mandating that the jury be told of consecutive sentencing. Nor would affording the jury an instruction on that topic comport with authority. See Clay v. State, 102 S.W.3d 794, 798 (Tex. App.–Texarkana 2003, no pet.) (holding that it would have been improper for the trial court to instruct the jury on the consecutive sentencing laws or the effect of such laws on the amount of time the appellant would serve); Levy v. State, 860 S.W.2d 211, 213 (Tex. App.–Texarkana 1993, pet. ref'd) (holding that the trial court did not err when it refused to instruct the jury that the sentences would run consecutively). Therefore, we overrule appellant’s second issue. Issue Three – Cruel and Unusual Punishment In his third issue, appellant contends that ordering the three sixty-year sentences to run consecutively was “disproportionate to appellant’s past record and future prospects for rehabilitation.” Thus, the sentence evinced an instance of “cruel and unusual punishment.” This argument went unmentioned below. Thus, it was waived. Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.–Dallas 2003, no pet.). The issue is overruled. Issue Four – Unconstitutional As Applied to Appellant In his fourth issue, appellant contends that §3.03(b)(2) of the Texas Penal Code (involving the authority to stack sentences) and article 21.24 of the Texas Code of Criminal Procedure (involving the joinder of multiple counts in one indictment) are unconstitutional as applied to him. This argument also went unmentioned below, and, therefore, was waived. Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (holding that the constitutionality of a statute as applied to the appellant must be raised in the trial court to preserve the complaint for review). Nor was any authority cited by appellant to support his contention. This too results in it being waived due to inadequate briefing. See Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000). So, we overrule the issue. Accordingly, the judgment of the trial court is affirmed. Brian Quinn Chief Justice Do not publish.