in the Interest of Y.S., B.N.Y.S., and R.Y.S., Children ( 2009 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-09-00279-CV

In the Interest of Y.S., B.N.Y.S.,

and R.Y.S., Children

From the 220th District Court

Hamilton County, Texas

Trial Court No. FM 07209

MEMORANDUM  Opinion

            This is an appeal of temporary orders entered in a suit affecting the parent-child relationship.  Temporary orders in child custody matters are not subject to interlocutory appeal.  See In re Sigmar, 270 S.W.3d 289, 295 (Tex. App.—Waco 2008, orig. proceeding [mand. denied]).  Accordingly, the Clerk of this Court notified the parties that the appeal may be dismissed for want of jurisdiction if a response showing grounds for continuing the appeal was not filed within 10 days.  See Tex. R. App. P. 42.3(a).  The Court has received no response.  Accordingly, the appeal is dismissed for want of jurisdiction.  Id.

FELIPE REYNA

                                                                                                Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Appeal dismissed

Opinion delivered and filed November 10, 2009

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ness in violation of art. 38.072 of the Texas Code of Criminal Procedure; (2) the trial court erred in the admission of expert testimony; (3) the trial court erred by denying a requested instruction during the punishment phase which would have allowed the jury to consider community supervision; and (4) the trial court erred in refusing to allow Miller to voir dire about eligibility for community supervision.

        We affirm the judgment.

ADMISSIBILITY OF EVIDENCE

Standard of Review

      A trial court’s ruling regarding the admission or exclusion of evidence is reviewed under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). The trial court’s ruling will not be disturbed on appeal if it is within the zone of reasonable disagreement. Id.

Hearsay Analysis

      Miller argues in his first point of error that the testimony of T.M.’s mother, Billie MillerMarcum, regarding T.M.’s outcry statement was hearsay, and as such, the State was required to follow the procedures of article 38.072. Tex. Code Crim. Proc. Ann. art. 38.072 § 2(a), (b) (Vernon SuppPamp. 19952003). Article 38.072 is a statutory exception to the prohibition of presenting hearsay testimony which allows the person to whom the victim of child abuse makes an outcry statement to testify regarding the contents of the outcry statement. Id.

      Billie testified that T.M. told her that Miller “had gone underneath her panties and rubbed her.” The State argued at trial, and now argues on appeal, that it was not required to follow article 38.072 because the testimony was not admitted for the truth of the matter asserted and therefore, was not hearsay. Tex. R. Evid. 801(e)(1),(B). At trial, Miller objected only to the offered testimony as hearsay,; he did not object to the relevance of the testimony when the SState asserted the testimony was not offered for the truth of the matter.

[A]lthough an out-of-court statement offered to prove only the fact that the statement was made is not hearsay, evidence of the mere making of the statement must be relevant. It must have a tendency to make the existence of a fact that is of consequence to the determination of the case more or less probable than it would be without the evidence. Consequently, the assertion by the proponent of an out-of-court statement that it is offered for some purpose other than to prove the truth of the matter asserted does not render the statement automatically admissible. The purpose for which it is offered must be relevant. . . It is essential, therefore, that the opponent of an out of court statement bear in mind that the admissibility of the statement may be subject to two valid objections: hearsay and irrelevance. If the only relevance of an out-of-court statement is to prove, expressly or impliedly, the truth of the matter asserted, it is hearsay even though the proponent asserts that it is offered to prove only the fact that the statement was made. . . If an out-of-court statement is admissible as non hearsay because it is offered for some relevant purpose other than to prove the truth of the matter asserted, the opponent should request a limiting instruction that the statement may be considered by the jury only for that purpose and not its truth.

HULEN D. WENDORF ET AL., TEXAS RULES OF EVIDENCE MANUAL VIII 16-17, 24 (6^th ed. 2002) (footnotes omitted).

      While we do not understand why the State failed to follow the procedures of article 38.072 so the testimony could be offered for the truth of the matter asserted, that does not change the facts that MarcumsBillie’s testimony was not offered for the truth of the matter asserted, and Miller made no objection other than to hearsay. Because Marcums testimony meets the definition of statements that are not hearsay, the sState was not required to follow the mandatory procedures of the Texas Code of Criminal Procedure article 38.072. Therefore, the trial court did not err in allowing MarcumsBillie’s testimony regarding T.M.’s outcry statement into evidence. Miller’s first issue is overruled.

ADMISSION OF EXPERT TESTIMONY

      Miller argues in his second issue that the trial court erred in allowing a licensed practitioner counselor to testify regarding the behavior of child sexual abuse victims. Miller specifically argues Flemming is not qualified to testify that child sexual abuse victims frequently delay disclosing sexual abuse. He also argues that Flemming’s testimony regarding the delay of disclosing the sexual abuse is not relevant to his case even though T.M. was thoroughly cross-examined concerning the testimony she gave during Miller’s previous trial that he had not sexually abused her. Assuming, without deciding, that admission of Flemming’s testimony was error, we will review the admission for harm.

      Rule 44.2(b) requires that a non-constitutional evidentiary error that does not affect substantial rights of the defendant be disregarded. Tex. R. App. P. 44.2(b); Motilla v. State, 2002 Tex. Crim. App. LEXIS 137 *678 S.W.3d 352, 355 (Tex. Crim. App. June 26, 2002). The Court of Criminal Appeals has determined that substantial rights are not affected by the erroneous admission of evidence if the appellate court has a fair assurance that the error did not influence the jury, or had only a slight effect after reviewing the record as a whole. Id. In our review we are to consider all testimony and physical evidence admitted, the nature of the evidence supporting the verdict, the character of the alleged error, and how the error might be considered in connection with other evidence in the case. Motilla, 2002 Tex78 S.CrimW.3d at 355. App. LEXIS 137 *6.

      The purpose of the testimony was to establish that based on a child’s age, fears of abuser, fears of consequences to the family if the abuse is disclosed, and the overwhelming power of a parent over a child, it is not unusual for a child sexual assault victim not to disclose the sexual abuse immediately after the occurrence. Based on our review of the entire record, and our analysis of the testimony by T.M., and Billie Marcum, and the video tape evidence admitted by Miller during the direct examination of Penny Quinn, the C.P.S. investigator, and the limited nature of the testimony by Flemming, we find that if the evidence influenced the jury at all, it had but only a slight effect. Therefore, Miller was not harmed. Miller’s second issue is overruled.COMMUNITY SUPERVISION

      Miller asserts in his third issue that the trial court erred by improperly narrowing the punishment range in this case by denying a requested instruction during the punishment phase which would have allowed the jury to consider community supervision. In his fourth issue Miller argues that the court erred by not allowing him to ask the voir dire memberspanel about their feelings concerning community supervision for someone indicted for indecency with a child. The root of both issues is whether Miller was eligible for community supervision.  

Eligibility

      Miller asserts in his brief that his previous felony conviction occurred after the commission of the offense at issue in this case, and therefore, should not be considered when determining his eligibility for community supervision. Article 42.12 § 4(e) states “[a] defendant is eligible for community supervision under this section only if before trial begins the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in this or any other state, and the jury enters in the verdict a finding that the information in the defendant’s motion is true.” Tex. Code Crim. Proc. Ann. art 42.12 § 4(e) (Vernon Supp. 20023).

      Miller filed a sworn motion that he had not been convicted of a felony offense prior to the commission of the offense alleged in this case. But, Miller did not swear he had not been convicted of a felony prior to this trial. Miller asks this court to extend the definition of “previous,” as it has been applied in enhancement statutes regarding the date of “commission” of the offense, to article 42.12 § 4(e). Tex. Code Crim. Proc. Ann. art 42.12 § 4(e) (Vernon Supp. 20023). We decline to do so.

      The term “convicted of a felony” in article 42.12 § 4(e) has been construed to mean that a final conviction has been rendered against the defendant. Baker v. State, 520 S.W.2d 782, 783 (Tex. Crim. App. 1975). Article 42.12 § 4(e) does not require that a defendant be convicted of a felony offense prior to the “commission” of the current offense, but only, that the defendant be finally convicted of a felony offense before the defendant is tried for the current offense. Kingsley v. State, 834 S.W.2d 82, 85 (Tex. App.—Dallas 1992, pet. denied). Miller stipulated he had previously been convicted of aggravated sexual assault on November 19, 1997. No appeal was pending. That conviction was final. A defendant who wants community supervision to be considered by the fact finder must, before trial begins, file a sworn motion that he has no prior felony convictions. Kingsley vId. State, 834 S.W.2d 82 (Tex.App.Dallas 1992 pet. denied); Tex. Code Crim. Proc. Ann. art. 42.12§ 4(e) (Vernon Supp. 20023). Miller could not and did not file such a motion.

      Based on a plain meaning reading of article 42.12 § 4(e) we hold Miller’s 1997 conviction was a prior felony conviction. Miller was not eligible for community supervision. Therefore, the trial court did not err in refusing to submit Miller’s requested instruction regarding community supervision or by refusing to allow Miller to voir dire the jury panel on the question of community supervision. Miller’s third and fourth issues are overruled.

CONCLUSION

                                                                         TOM GRAY

                                                                         Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed August 27February 5, 2003

Do not publish

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