Howard, Nathan George v. State ( 2003 )

Motion for Rehearing Granted, Opinion of August 2, 2001, Withdrawn, Affirmed As Modified, and Opinion on Rehearing filed on Ma

Motion for Rehearing Granted, Opinion of August 2, 2001, Withdrawn, Affirmed As Modified, and Opinion on Rehearing filed on May 22, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-99-01004-CR

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NATHAN GEORGE HOWARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 85th District Court

Brazos County, Texas

Trial Court Cause No. 26,421-85

O P I N I O N    O N    R E H E A R I N G

Appellant=s motion for rehearing is granted. We withdraw the opinion issued August 2, 2001, and substitute the following in its place.

Appellant, Nathan George Howard, was originally charged by indictment with two counts of indecency with a child.  Appellant=s motion for severance of the offenses was granted. A jury trial commenced on count one of the indictment charging appellant with indecency with N.C., a child younger than seventeen years and not appellant=s spouse. The jury found appellant guilty of the offense charged and assessed punishment at ten years= confinement in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine.  The jury recommended suspension of confinement and placement of appellant on community supervision.  The trial court assessed punishment at ten years= community supervision, a $10,000 fine, and ordered appellant to serve 180 days= confinement in the Brazos County jail as a condition of community supervision. In nine points of error, appellant appeals his conviction.   We modify the judgment and affirm the judgment as modified.        

B A C K G R O U N D

Appellant was charged with indecency with a child,^[1]  N.C., which, according to N.C.=s testimony, occurred numerous times while appellant was babysitting in her home.  The touching of N.C.=s genitals was through her clothing.

At a hearing held prior to the start of testimony, the State informed the court of its intent to offer evidence of similar acts allegedly committed by appellant against three other children while he was employed as their babysitter. The State=s purpose for offering this extraneous evidence was to rebut an anticipated defense of accident because the touching was over the clothes, and to prove that the touching of N.C. was done with the intent to gratify the sexual desire of appellant. Specifically, the State argued that the jury might have difficulty understanding that touching over the clothes can be with the intent to arouse and gratify a person=s sexual desire.  After hearing the State=s argument, the trial court overruled appellant=s objection to the extraneous offense evidence and admitted the evidence to prove intent.

Subsequently, three other children, under the direct supervision of appellant, testified that he touched them over their clothing. A.C. testified that appellant touched her in the vaginal area through her clothing on at least three occasions and that appellant touched her breasts under her shirt.  S.H. testified that appellant, while babysitting him, tickled him in his groin area.  Also, S.H. testified that he observed appellant, on about five occasions, in bed with his sister, H.H., touching her on her vaginal area.  H.H., a five year old girl, testified that appellant touched her on her “bad spot.”  H.H.=s father was seated at the prosecution table during H.H.=s testimony because, the State argued, H.H. was terrified of appellant.

Appellant=s counsel called N.C.=s father to the stand. He was the first person N.C. told of the molestation.  In addition to the outcry testimony, N.C.=s father testified that he was convicted in 1990 of four counts of credit card fraud and sentenced to eighteen months confinement in a federal prison.  Appellant=s counsel also called witnesses who testified that N.C.=s father had a reputation for being untrustworthy, as did his children.  In addition, appellant called five character witnesses who testified that during appellant=s volunteer activities at church, there were never any allegations of impropriety with the children there.

Appellant testified and denied that he molested N.C. or the other children. The court=s charge to the jury included an instruction limiting the jury=s consideration of the extraneous offenses to the intent of the appellant at the time of the offense charged.  After the jury returned a verdict of guilty, appellant brought this appeal.

I.

Notice Under Rule 404(b)

In his fourth point of error, appellant claims the trial court erred in admitting the extraneous offense testimony of H.H. and S.H. because the State failed to provide adequate notice of its intent to use it at trial, in accordance with Evidence Rule 404(b).  Specifically, appellant contends the May 21, 1999 filing by the State of a document entitled “State’s Notice of Intent to Offer Extraneous Offenses” constituted inadequate notice under 404(b).  Voir dire of the jury began on May 24, 1999, but trial before the jury did not begin until the next day.

A. Standard of Review

In determining whether a trial court erred in admitting evidence, the standard for review is abuse of discretion.  Mozon v. State, 991 S.W.2d 841, 846B47 (Tex. Crim. App. 1999).  “A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree.”  Foster v. State, 909 S.W.2d 86, 88 (Tex. App.CHouston [14th Dist.] 1995, pet. ref’d) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g)).  This standard of review will also be applied in part II below.

                                                                B.  Rule 404(b)

The purpose behind the notice provision of this rule is to adequately make known to the defendant the extraneous offenses the State intends to introduce at trial and to prevent surprise to the defendant. Self v. State, 860 S.W.2d 261, 264 (Tex. App.CFort Worth 1993, pet. ref=d). Rule 404(b), which governs the admissibility of character evidence, provides:

Evidence of other crimes, wrongs, or acts may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided, upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State=s case in chief such evidence other than that arising in the same transaction.

Tex. R. Evid. 404(b) (emphasis added).  Rule 404(b) uses the term “reasonable” to refer to the contents of the notice and that it be in advance of trial.  Generally, what constitutes “reasonable notice” under Rule 404(b) depends on the facts and circumstances of the case.  Sebalt v. State, 28 S.W.3d 819, 822 (Tex. App.CCorpus Christi 2000, no pet.).  Here, appellant argues that the State did not give reasonable notice of its intent to admit H.H. and S.H.=s testimony regarding extraneous offenses.  Appellant relies on Hernandez v. State, which holds that filing a 404(b) response on a Friday is not adequate or reasonable notice for a trial that begins the following Monday.  914 S.W.2d 226, 234 (Tex. App.CWaco 1996, pet. ref’d). Although some courts have found this period of time to be unreasonable notice, it is not per se unreasonable.  See Sebalt, 28 S.W.3d at 821B22; see also Ramirez v. State, 967 S.W.2d 919, 923 (Tex. App.CBeaumont 1998, no pet.) (finding that it is not an abuse of discretion if a trial judge holds that three days is adequate notice).  “The reasonableness of the notice is determined by all of the facts and circumstances of the case.”  Sebalt, 28 S.W.3d at 822.  We do not disagree with appellant=s contention that a one-day notice period is inadequate.  Neuman v. State, 951 S.W.2d 538, 540 (Tex. App.CAustin 1997, no pet.) (holding notice of extraneous offenses provided to defendant on Monday morning when jury selection began, where first witness was called on Tuesday, was not reasonable).  However, neither Hernandez nor Neuman control this point of error.

C.  Analysis

On May 10, 1999, fifteen days before the first witness was called, the State provided appellant=s attorney with a letter that states, in part, as follows:

Below is a summary of outcries made by other child victims of Nathan Howard. They are sent both as notice under Rule 404(b), and as notice of outcry under Article 38.072.  We intend to call the outcry witnesses to testify for any purposes under which this evidence becomes relevant. 

The letter then proceeded to describe sexual contact between appellant and S.H. and appellant and H.H. on June 22, 1998.  It also described sexual contact between appellant and H.H. on July 1, 1998.

On May 21, 1999, eleven days after the letter, the State filed its “Notice of Intent to Introduce Extraneous Offenses.”  This notice expressed the State=s intention to introduce extraneous offenses pursuant to Rule 404(b) and Article 37.07 of the Code of Criminal Procedure, and its intention to use the extraneous offenses listed in the notice in its case-in-chief and/or at the punishment phase of the trial. The two listed extraneous offenses are:

1.         On June 22, 1998, defendant engaged in sexual contact by touching the genitals of H.H., a child younger than 17 years of age.

2.         On June 22, 1998, defendant engaged in sexual contact by touching the genitals of S.H., a child younger than 17 years of age.

The two notices of the State=s intent to introduce evidence of extraneous offenses committed by appellant refer to the offenses that occurred between appellant and S.H. and appellant and H.H. on June 22, 1998.  Moreover, both notices refer to Rule 404(b), thus establishing the documents as responsive to appellant=s request for notice of extraneous offense evidence filed January 20, 1999.

While the reasonableness of the State=s notice filed and served on appellant=s counsel on May 21, 1999, just four days before the first witness was called, might be legitimately questioned, the timing of the notice on May 10, 1999 is unquestionably reasonable.  Appellant contends that the notice on May 10 is not satisfactory because it refers to article 38.072 and asserts the State=s intent to call only the outcry witnesses at trial.  This argument is of no moment.  Evidence of a victim=s outcry is admissible under article 38.072 in the prosecution of an offense under chapter 22 of the Penal Code if committed against a child 12 years of age or younger.  Jones v. State, 817 S.W.2d 854, 857 (Tex. App.CHouston [1st Dist.] 1991, no pet.).  Here, the prosecution of appellant is for sexual contact with N.C.  Article 38.072, Section 2, permits hearsay statements, made by the child against whom the offense was allegedly committed, by the first person 18 or more years old to whom the child made a statement about the offense.  Tex. Code Crim. Proc. Ann. art. 38.072, ' 2(a) (Vernon Supp. 2001).   The outcry statute exception to hearsay testimony does not extend to an outcry of a child respecting an extraneous offense.  Beckley v. State, 827 S.W.2d 74, 78 (Tex. App.CFort Worth 1992, no pet.).  Therefore, the State could not have used the testimony of the outcry witnesses referred to in the May 10 letter because the children were not the victims, and thus any outcry witness testimony involving statements by these non-victims would constitute hearsay.  However, the State could present the extraneous offense evidence directly through the victims, H.H. and S.H., because the May 10 letter was timely notice to appellant that the State intended to use the evidence for 404(b) purposes.  Accordingly, we hold the State provided appellant reasonable notice under Rule 404(b) of its intent to introduce non-hearsay extraneous offense evidence at the guilt stage of trial.  The trial court did not, therefore, abuse its discretion in overruling appellant=s objection to the 404(b) evidence based on the abbreviated notice period. We overrule appellant=s fourth point of error.   

II.

Admission of Extraneous Offense Evidence

In his first, second, and third points of error, appellant asserts that the trial court erred  in admitting evidence of extraneous offenses involving A.C., H.H., and S.H., during the guilt-innocence phase of trial. Appellant argues that any extraneous offenses should not be admitted because the intent can be inferred from the act against complainant, N.C.  Appellant argues that since N.C. testified the improper touching occurred repeatedly, the State had no need to introduce extraneous offense evidence.  

A person commits an offense of indecency with a child “if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:  (1) engages in sexual contact with the child.”  Tex. Pen. Code Ann. 21.11(a)(1) (Vernon Supp. 2001).  ASexual contact@ means “any touching of the anus, breast, or any part of the genitals of another person with the intent to arouse or gratify the sexual desire of any person.” Id. ' 21.01(2) (Vernon 1994).  The indecency offense requires the “intent to arouse or gratify the sexual desire” because legitimate, non-criminal, contact may occur between parents, nurses, doctors, or other care-givers and a child, particularly a young child, on the relevant body parts.  Caballero v. State, 927 S.W.2d 128, 130B31 (Tex. App.CEl Paso 1996, pet. ref’d).  The offense, however, does not require that arousal or gratification actually occur. Id.  Instead, the offense is complete upon the contact accompanied by the requisite intent.  Id.  Specific intent to arouse or gratify sexual desire can be inferred from the defendant=s conduct, his remarks, and all surrounding circumstances.  Lozano v. State, 958 S.W.2d 925, 930 (Tex. App.CEl Paso 1997, no pet.).

In this case, N.C. testified that appellant touched her genital area almost every time he came to babysit, usually after being asked to rub her back.  On every occasion, appellant and N.C. were clothed. Appellant contends that if he did touch N.C.=s genital area it was only by accident.  However, A.C. testified that appellant, while rubbing one of her legs would pass over her genital area to rub the other.  A.C. and appellant were clothed during this incident.  S.H. testified that appellant, while playing a game, tickled his genital area through his clothes.  H.H. also testified that appellant touched her genital area during her nap time.  Again, H.H. and appellant were clothed.  Clearly the instances of touching of the genitals are very similar in that they occurred over the clothing and usually in combination with rubbing other non-sexual body parts. 

Extraneous offenses are permissible to prove the element of intent in cases in which intent is an essential element of the offense and cannot be inferred from the act itself. Williams v. State, 662 S.W.2d 344, 345B46 (Tex. Crim. App. 1984); Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972).  The admissibility of extraneous offenses is governed by Rule 404(b), which provides that such evidence is admissible if it is probative of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or other similar purpose. Tex. R. Evid. 404(b).  “Evidence is admissible when intent is as essential element of the State=s case and where such intent cannot be inferred from the act itself.”  Aich v. State, 879 S.W.2d 167, 174 (Tex. App.CHouston [14 Dist.] 1994, pet ref=d) (citing Crawley v. State, 513 S.W.2d 62, 64 (Tex. Crim. App. 1974)).

The only facts in evidence indicating appellant had intent to arouse or gratify his sexual desire are the acts of touching, which appellant contends were accidental, if they happened at all. N.C. testified appellant did not ask her to not tell anyone of the touching and testified that all incidents of touching occurred over the clothes.  N.C. also testified that appellant never asked her to touch him and never removed any clothing at the time of the improper touching.  Thus, inasmuch as there are no other facts to suggest intent, the State=s need to present some alternate indicia of intent is great because intent will need to be established by showing the commission of similar acts. Here, because the extraneous offenses were repeated and very similar to the act in question, they are relevant to establishing an objective inference of appellant=s intent.  See Morgan v. State, 692 S.W.2d 877, 881 (Tex. Crim. App 1985) (holding extraneous acts of touching complainant=s sister were properly admitted as relevant to infer specific intent to gratify sexual desire).

Once evidence is determined to be relevant, it is admissible unless the unfair prejudicial effect of the evidence substantially outweighs its probative value.  See Tex. R. Evid. 403.  To prove error in its admission appellant must show that the evidence was unduly prejudicial and its probative value is substantially outweighed by the danger of unfair prejudice.  See Montgomery v. State, 810 S.W.2d 372, 377B78 (Tex. Crim. App. 1991).  The trial court should favor admission in close cases in keeping with the presumption of admissibility.  See id.  Factors used to measure the probative value of an extraneous offense  include similarity between the extraneous offense and the offense charged, closeness in time of the extraneous transaction to the charged offense, and availability of alternative sources of proof.  Keller v. State, 818 S.W.2d 425, 429B30 (Tex. App.CHouston [1st Dist.] 1991, pet. ref=d). The State need not show as high a degree of similarity between extraneous offenses when the purpose of the proof is to show intent.  Plante v. State, 692 S.W.2d 487, 493 (Tex. Crim. App. 1985).

The extraneous offense evidence introduced here was the same or similar to the evidence presented for the charged offense. Witnesses testified they were touched over the clothing while appellant rubbed or tickled them.  The extraneous offenses were sufficiently close in time to the charged offense to have provided additional probative value.  As the State had no other evidence to show intent, there were no other alternative sources of proof available.

In determining whether there was an abuse of discretion in admitting the evidence of extraneous offenses, the trial court=s ruling must be measured against the relevant criteria by which a Rule 403 decision is to be made. Montgomery, 810 S.W.2d at 392.  Factors include the inherent probative value of the extraneous offense evidence, the potential of the extraneous offense evidence to impress the jury in an irrational but indelible way, the time needed at trial to develop the evidence, possibly distracting the jury from the indicted offense, and the proponent’s need of the extraneous offense evidence.  Id. at 389B90.

Measuring the relevant criteria under an abuse of discretion standard, the extraneous offense evidence in the present case was not unduly prejudicial and the probative value substantially outweighed the danger of unfair prejudice.  Intent to arouse or gratify sexual desire was an essential element of the offense the State was required to prove beyond a reasonable doubt.  See Tex. Pen. Code Ann. ' 21.01(2) (Vernon 1994).  Intent is clearly at issue once the defendant argues the charged offense was unintentional or accidental.^[2] Johnson, v. State, 932 S.W.2d 296, 302 (Tex. App.CAustin 1996, pet. ref’d).  The extraneous offense evidence offered here was substantially similar to the offense at issue in that they all included touching over the clothes.  Similarity between the extraneous transactions and the charged offense is an important measure of probative value.  Keller, 818  at 429.  While there was potential the extraneous offense evidence would impress the jury in some irrational way, the trial court gave a limiting instruction on the use of the extraneous offense evidence.  It is presumed that the jury will properly consider evidence when correctly instructed by the trial judge.  Abnor v. State, 871 S.W.2d 726, 740 (Tex. Crim. App. 1994).  Finally, the State did not have other convincing evidence to establish the intent issue; therefore, the need for the evidence was great.  See Montgomery, 810 S.W.2d at 392.

Based upon the foregoing, we conclude the extraneous acts of misconduct were relevant to prove appellant=s specific intent to arouse and gratify his sexual desire in the instant offense, and hold the admission of such evidence was not an abuse of discretion. See Aitch v. State, 879 S.W.2d at 174.

Appellant=s first, second, and third points of error are overruled.

III.

Comment on the Weight of Evidence

In his fifth point of error, appellant contends the trial court erred by commenting on the weight of the evidence in its instructions to the jury in the guilt phase of the trial. Specifically, the trial court defined the term “touching” as “to perceive by the sense of feeling and includes, but is not limited to flesh to flesh contact between two individuals.” Appellant argues that because appellant was accused of touching the complainant and the other witnesses while clothed that this is a comment on the evidence, and that touching is a common sense term that does not need to be defined by the trial court.

The Code of Criminal Procedure addresses the issue of the judge=s charge to the jury.  See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2001) (stating that the judge shall not, in the charge, express any opinion as to the weight of the evidence, sum up the testimony, discuss the facts or use any argument in the charge calculated to arouse the sympathy or excite the passions of the jury). However, unlike the Rules of Civil Procedure, it does not specifically address the issue of definitions to the jury. See Tex. R. Civ. P. Ann. 277 (Vernon Supp. 2001) (stating that the “court=s charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers when it is properly part of an instruction or definition.”) (emphasis added). 

The trial court=s charge included a definition not provided in the Penal Code, but it does not reveal the trial court=s opinion as to the weight of any evidence, sum up testimony, discuss the facts or appear calculated to arouse sympathy or excite the passions of the jurors. The trial court apparently determined that the word touching, in the context of “sexual contact,” could be interpreted not to include touching while clothed.  This argument has been presented before.  In Guia v. State, the court rejected defendant=s argument that no sexual contact had occurred because the individual he touched was fully clothed at the time of the touching.  723 S.W.2d 763, 766 (Tex. App.CDallas 1986, pet ref’d); see also Resnick v. State, 574 S.W.2d 558, 559B60 (Tex. Crim. App. 1978) (rejecting the argument that flesh-to-flesh contact is required under the meaning of sexual contact).

A trial court has broad discretion in submitting proper definitions and explanatory phrases to the jury.  Macias v. State, 959 S.W.2d 332, 336 (Tex. App.CHouston [14th Dist.] 1997, pet. ref’d).  Appellant=s contention that the “definition could be interpreted as a comment on the weight of the evidence” is mistaken.  Here, if the trial court had stated that touching over the clothes was included in the definition of sexual contact, then it might be perceived as a comment on the weight of the evidence.  For example, in Santos v. State, the appellant groped the complainant and ran when she started screaming.  961 S.W.2d 304, 305 (Tex. App.CHouston [1st Dist.] 1997, pet. ref’d).  The trial court=s instruction stated that the jury could consider “that flight from the scene of an offense may be considered” when determining intent.  Id. at 306.  The Santos court held that this constituted a comment on the weight of the evidence because it singled out the particular fact that appellant fled the scene.  Id.  Here, by using the term Aflesh-to-flesh@ touching, the trial court avoided commenting on the facts in this case; specifically, the trial court did not use the term over-the-clothes in its definition of touching.  Therefore, the trial court=s definition of touching stated in the jury charge was not an opinion as to the weight of the evidence, did not sum up the testimony, did not discuss the facts or use any argument calculated to arouse the sympathy or excite the passions of the jury.  Accordingly, appellant=s fifth point of error is overruled. 

IV.

Improper Jury Argument

In his sixth point of error, appellant contends that the trial court reversibly erred in overruling defense counsel=s objection regarding some of the prosecutor=s comments during closing argument.

Proper jury argument falls within the following categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) responding to opposing counsel=s argument; and (4) plea for law enforcement.  Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991).  Further, a prosecutor is entitled to draw all inferences from the evidence that are reasonable, fair, legitimate, and offered in good faith.  McFarland v. State, 845 S.W.2d 824, 840 (Tex. Crim. App. 1992).

Here, appellant argues that the following comments by the State amounted to improper jury argument:

STATE:           And so what is the defense?  Apparently, it=s Robert Cottrell, as far as I can tell.  And so what did Robert Cottrell add or subtract from this case, I guess, is what you have to ask yourself because this case is not about Rob Cottrell as much as Mr. Bryan [defense counsel] might like it to be.  It=s about [appellant].  So you have to ask yourself, AWhy did they call him to the stand?@  Do you think maybe they wanted to trash him?  Do you think maybe they thought that would distract you from the truth?

Then defense counsel objected to the argument.  However, these comments were directly in response to comments made earlier during defense counsel=s closing argument, as follows:

DEFENSE:     Why did this happen?  I don=t think [appellant] knows why this happened, why they=re accusing him of this.  Is it because the children are trying to get attention?  Is it for money?  Maybe some lawsuit?  Is it because they=re mad at [appellant]? Or did Robert Cottrell molest them?

Who knows what happened?  Robert Cottrell takes them back and puts them in bed, closes the door.

Then the State objected and the trial court sustained the objection.  Defense counsel continued:

DEFENSE:     This is a weird man, ladies and gentleman, I=m telling you. [Robert Cottrell] runs a weird household.  He=s done some things in his past.  And you know, sometimes people that molest children that [sic] ask them over and over and over every two months, “Have you been touched,” are doing that to protect themselves and maybe shift the blame on somebody else.

The State objected once more, and the court again sustained the objection. 

The State was only responding to the accusations made by defense counsel during his closing argument.  Therefore, the trial court did not err in overruling appellant=s objection.  See Nance v. State,  946 S.W.2d 490, 494 (Tex. App.CFort Worth 1997, pet ref=d); see also Miller v. State, 479 S.W.2d 670, 672 (Tex. Crim. App. 1972) (stating that a response to argument by opposing counsel does not present reversible error even though referring to a matter not in evidence).  Accordingly, we overrule appellant=s sixth point of error.

V.

Confrontation

In his seventh point of error appellant argues that the trial court reversibly erred by allowing H.H.=s father to sit at the prosecution table while she testified before the jury. H.H.  was five years old at the time of trial, and the State claimed that she was terrified of appellant and became more afraid of him as the trial approached.  The State claims appellant did not preserve error because he failed to specifically object about the father=s location in the court room.

To preserve error for appellate review, the complaining party must make a timely, specific objection. Tex. R. App. P.  33.1(a).  The policy underlying specific objections serves two purposes: (1) a specific objection is required to inform the judge of the basis of the objection and afford him an opportunity to rule appropriately; and (2) a specific objection will allow opposing counsel an opportunity to remove the objection or supply other testimony.  Villareal v. State, 811 S.W.2d 212, 217 (Tex. App.CHouston [14th Dist.] 1991, no pet.).  The objection must be made at the earliest possible opportunity and set forth the specific grounds for the objection in order to preserve error.  Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).

Here, appellant initially objected at trial to H.H.=s father standing beside her as she testified in the courtroom on the basis that it denied appellant the right to confront the witness under the United States and Texas Constitutions, thus, violating appellant=s right to due process of law.  The trial court sustained appellant=s objection.  Subsequently, the trial court decided that the father could walk his daughter up to the stand, not talk to her, but take a seat at the prosecution table during the course of her testimony.  Appellant, however, did not renew his objection to the new procedure at any time or specify why or how this procedure was unconstitutional as applied to him. Instead, appellant moved on to an issue of hearsay.  Thus, appellant has failed to properly preserve his complaint for appellate review. Appellant=s seventh point of error is overruled.

VI.

Condition of Probation

In his eighth point of error, appellant contends the trial court abused its discretion by informing appellant the 180-day confinement in jail would be suspended if he confessed to the commission of the offense. First, appellant argues that the conditional ruling violates the Fifth Amendment right against self-incrimination. Second, he argues that, should appellant confess while his case is pending on appeal, and the case eventually is reversed, the confession would be admissible at retrial.  Appellant argues that if the conviction is appealed, a confession would abrogate his claim of innocence.  Therefore, appellant asks this Court to reform the judgment by deleting the 180-day confinement condition. 

The granting of community supervision^[3] is a  privilege, not a right. See Flores v. State,  904 S.W.2d 129, 130 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1050 (1996) (stating “there is no fundamental right to receive probation; it is within the discretion of the trial court to determine whether an individual defendant is entitled to probation”). The decision to grant probation is wholly discretionary and not reviewable.  Flournoy v. State, 589 S.W.2d 705, 707 (Tex. Crim. App. 1979).  As there is no fundamental right involved, there only needs to be a determination whether the action of the trial court was rationally related to a legitimate government purpose.  Flores, 904 S.W.2d at 131.

Along with the discretionary powers to decide whether to grant community supervision, the trial court also has discretion in determining the conditions to be imposed. Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999).  The stated purpose of the adult probation statute is “to place wholly within the State courts of appropriate jurisdiction the responsibility for determining . . . [t]he conditions of probation . . . [and] . . . [t]o remove from existing statutes the limitations . . . [t]hat have acted as barriers to effective systems of probations in the public interest.” Tex. Code Crim. Proc. Ann. Art. 42.12 ' 1 (Vernon Supp. 2001); Chauncy v. State, 877 S.W.2d 305, 310 n.2 (Tex. Crim. App. 1994).  Within that framework, trial courts are given wide discretion in selecting terms and conditions of probation. Tex. Code Crim. Proc. Ann. Art. 42.12 ' 3(a) (Vernon Supp. 2001); Fielder v. State, 811 S.W.2d 131, 134 (Tex. Crim. App. 1991); Salinas v. State, 514 S.W.2d 754, 755 n.1 (Tex. Crim. App. 1974).  A specific condition of  probation will be found invalid if it has no relationship to the crime, it relates to conduct that is not in itself criminal, and forbids or requires conduct that is not reasonably related to the future criminality of a defendant or does not serve the statutory ends of probation.  Lucy v. State, 875 S.W.2d 3, 5 (Tex. App.CTyler, 1994, pet. ref=d). Absent an abuse of discretion, the condition will not be disturbed.  See Todd v. State, 911 S.W.2d. 807, 818 (Tex. App.CEl Paso, 1995, no pet.) (holding probation requirement of sending a letter of apology to the victim was a reasonable exercise of discretion).

Here, the record reflects the trial court heard expert testimony during the punishment phase of the trial that indicated child molesters who are unwilling to admit what they have done have little or no chance of changing their conduct.  The trial court noted it would suspend the condition of probation, 180 days in jail, if appellant accepted responsibility that appellant=s behavior was wrong.^[4]  The trial court reasoned that, if appellant accepted such responsibility, he could then more successfully participate in and complete his treatment in a sex offender program.  The condition at issue is directly related to the conduct in question and is aimed at preventing or lowering the risk of future criminal conduct on the part of the appellant.  Thus, the condition at issue here does not bear the characteristics of an impermissible condition of probation.

Further, in order to preserve error concerning the imposition of a condition of probation, a defendant must make a timely and specific objection.  Tex. R. App. P. 33.1(a); see Speth, 6 S.W.3d at 530 (stating community supervision conditions cannot be challenged for the first time on appeal).  There is no evidence in the record to reflect appellant made such an objection. Therefore, appellant has not preserved the error, and has waived his objection.

Appellant=s eighth point of error is overruled.

VII.

Sentence Modification

In point of error nine, appellant asserts the judgment and sentence erroneously reflects that appellant was convicted of the offense of indecency with a child, specifically N.C. and another child, thereby reflecting “X2,” or times two.  Appellant, however, was tried and convicted for the offense committed in Count One of the indictment, involving only N.C. Since the judgment and sentence are in error, appellant requests reformation of the judgment by deleting the “X2” reference.  The State agrees that appellant was convicted only on Count One of the indictment, involving N.C.  Therefore, we sustain appellant=s point of error nine, and will modify the judgment to delete the “X2” reference.

VIII.

Conclusion

We modify the judgment to delete the “X2” reference and affirm the judgment as modified.

/s/        John S. Anderson

Justice

Judgment rendered and Opinion on Rehearing filed May 22, 2003.

Panel consists of Justices Anderson, Fowler, and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  See Tex. Pen. Code Ann. ' 21.11(a)(1) (Vernon Supp. 2001).

^[2]  Appellant stated, AI didn=t say anything about it [sic] could not have been done accidently. I know I did not do it on purpose.@

^[3]  The terms probation and community supervision are used interchangeably in this opinion.

^[4]  The judge stated in sentencing,

AWhat I=m concerned with most in your situation is your denial of the events that led up to that conviction  because I=ve heard many mental health professionals testify and I=ve gone to many seminars and I=ve read many books about sex offenders and pedophilia and all of the related problems that are associated with trying to correct that behavior and prevent it from occurring in the future. And almost unanimously they are all of the opinion, as am I, that there can be no beginning to your treatment until you admit that you=ve done wrong.@