Lawrence, Aaron Michael v. State ( 2003 )

Opinion issued April 10, 2003

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00579-CR

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AARON MICHAEL LAWRENCE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 889676

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MEMORANDUM OPINION

          Appellant, Aaron Michael Lawrence, pleaded guilty, without an agreed punishment recommendation, to sexual assault of a child. The trial court withheld a finding of guilt and ordered the preparation of a presentence investigation report (PSI). After a sentencing hearing, the trial court found appellant guilty and assessed punishment at five years’ confinement. We affirm.

          On October 1, 2001, the complainant, a 16-year-old girl, was sitting on a fence near where her mother was checking on her horse. Appellant drove by, stopped, grabbed the girl by her arm, and dragged her into his car. Appellant drove to the hotel where he was living and dragged the girl up to his room. There, he ordered her to remove her clothes, pushed her down on the bed, and forced her to have sexual relations with him. He then drove her back to a location near where he picked her up.

          The girl’s mother had been looking for her, and when the complainant told her what had happened, she immediately called the police. After a sexual assault kit was performed at a hospital, the complainant took the police back to the hotel room and pointed out the room where the assault had taken place. Appellant was later arrested at his place of employment.

          At the punishment hearing, appellant admitted having sex with the underage girl, but contended that she was a willing participant.

          In his sole point of error, appellant contends the trial court erred by not allowing him to ask the complainant at the punishment hearing about whether she had ever had sex with any other older man. We find appellant’s complaint meritless for two reasons: (1) his objection on appeal does not comport with the objection asserted at trial; and (2) the rule of evidence upon which appellant relies is not effective.

          1.       Objection on appeal fails to comport with trial objection

          During the punishment hearing, the following exchange took place when defense counsel was questioning the complainant:

[Defense Counsel]: [Complainant] just you (sic) a couple more questions. Had you ever slept with an older man before?

[Prosecutor]: Your Honor, I’m going to object under Rule -

[Defense Counsel]: I’ll rephrase the question.

[Prosecutor]: Judge, I don’t think there’s any way to rephrase it unless under Rule 412 he can overcome the evidence of specific instances rule that prevents him from asking anything about alleged victims past sexual behavior.

[The Court]: Sustained.

[Defense Counsel]: I was going to offer it for impeachment purposes, Your Honor. (Emphasis added).

[Prosecutor]: Same objection.

[The Court]: Sustained.

          On appeal, appellant argues not that the evidence was admissible for purposes of impeachment, but that it should have been admitted as evidence in mitigation of punishment. Because his point of error on appeal does not comport with his objection at trial, his complaint on appeal has been waived. See Coffey v. State, 796 S.W.2d 175, 179 (Tex. Crim. App. 1990) (trial court objection must comport with point of error raised on appeal).

          2.       Rule of Evidence 412(e) has been disapproved by the legislature

          Appellant further argues that the evidence is admissible under Texas Rule of Evidence 412(e), which provides:

(e) Sexual Conduct of Child as Defense. This rule does not limit the right of the accused to produce evidence of promiscuous sexual conduct of a child 14 years old or older as a defense to sexual assault, aggravated sexual assault, indecency with a child or an attempt to commit any of the foregoing crimes. If such evidence is admitted, the court shall instruct the jury as to the purpose of the evidence and as to its limited use.

Tex. R. Evid. 412(e).

          Although still present in the rules of evidence, rule 412(e) was disapproved by the legislature in 1993. See Act of May 29, 1993, 73rd Leg. R.S., ch. 900, § 1.17, 1993 Tex. Gen. Laws 3705 (“Under the terms of Section 22.109(b), Government Code, Rule 412(e), Texas Rules of Criminal Evidence, is disapproved.”). As such, it is no longer effective. See Tex. Gov’t Code Ann. § 22.109 (Vernon 1988) (“The rules and amendments to rules [adopted under this statute, which grants the court of criminal appeals full rulemaking power in the promulgation of rules of evidence in the trials of criminal cases] remain in effect unless and until disapproved by the legislature.”). Because rule 412(e) has been disapproved by the legislature, it is no longer effective and cannot serve as the basis for admitting the complained of evidence.

          We overrule appellant’s sole point of error.

          We affirm the judgment.

                                                             Sherry Radack

                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.

Do not publish. Tex. R. App. P. 47.