Busbey, John Richard v. State ( 2014 )

AFFIRM; and Opinion Filed May 22, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00550-CR
JOHN RICHARD BUSBEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F10-11264-K
MEMORANDUM OPINION
Before Justices Lang-Miers, Myers, and Lewis
Opinion by Justice Lang-Miers
Appellant John Richard Busbey was convicted of continuous sexual abuse of a child
under the age of 14 and was sentenced to 40 years in prison. Appellant raises three issues on
appeal arguing that (1) the trial court erred because it did not hold an in camera hearing,
(2) appellant was prejudiced by a witness’s comment about an extraneous offense, and (3) the
evidence is insufficient to support the assessment of court costs against appellant. We affirm.
BACKGROUND
The State’s witnesses at appellant’s trial included the complainant (appellant’s
stepdaughter), and Dr. Karen Patko, a pediatrician who examined the complainant. The
complainant testified that appellant sexually abused her from around the time she was in
kindergarten until the seventh grade when she moved to Vermont with her father. Appellant
began by touching the complainant’s vagina. Later the abuse escalated to appellant penetrating
the complainant’s vagina with his finger and penetrating the complainant’s anus with his penis.
Dr. Patko testified that she examined the complainant and concluded that she exhibited evidence
of previous injuries to her hymen consistent with “penetrating trauma.”
FIRST ISSUE
In his first issue appellant argues that the trial court erred by not conducting an in camera
hearing pursuant to Texas Rule of Evidence 412(c) 1 “regarding evidence of [the] alleged victim’s
previous sexual conduct.” Appellant’s first issue relates to the following statement made by his
counsel before the trial court began the sentencing phase of trial:
We approached on the side of the bench, and it was not on the record, but the
court advised me that I could make a bill later, and I’m making a bill at this time
regarding the evidence that—some questions that I wanted to ask [complainant’s
mother] that the court ruled I could not ask. And I believe the evidence would
show I had a good faith reason for wanting to ask the questions, that on three or
four occasions that [complainant’s mother] observed her daughter masturbating,
and I thought that was important evidence that I would have tried to use to rebut
their physical evidence from their doctor as another possible explanation, and the
court advised me I could not ask questions along those lines.
We conclude that appellant has not preserved his complaint for appellate review. “It is a
general rule that appellate courts will not consider any error which counsel for accused could
have called, but did not call, to the attention of the trial court at the time when such error could
have been avoided or corrected by the trial court.” Rogers v. State, 640 S.W.2d 248, 264 (Tex.
Crim. App. 1981); see also TEX. R. APP. P. 33.1(a)(1)(A). In this case appellant could have, but
did not, call to the attention of the trial court his complaint about the lack of an in camera
hearing. As our sister court explained, when an appellant complains on appeal that a trial court
failed to conduct a hearing,
requiring the appellant to first broach the matter with the trial court seems only
reasonable. This is so . . . because [the trial court] stands in the best position to
1
Texas Rule of Evidence 412, sometimes referred to as the Texas Rape Shield Law, precludes the admission of “reputation or opinion
evidence of the past sexual behavior of an alleged victim” except under limited circumstances. See TEX. R. EVID. 412.
–2–
expeditiously avoid potential or cure actual error at trial. Thus, it should be
accorded a chance to rectify the situation.
Adams v. State, 132 S.W.3d 701, 702 (Tex. App.—Amarillo 2004, no pet.) (mem. op.) (internal
quotations and citation omitted); see also Terrell v. State, No. 01-12-00404-CR, 2014 WL
50802, at *1 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014, no pet.) (mem. op., not designated for
publication) (appellate court could not address complaint that trial court failed to conduct
Daubert hearing because defendant “neither requested a Daubert hearing nor objected to the lack
of one” in the trial court).
Appellant cites Virts v. State, 739 S.W.2d 25 (Tex. Crim. App. 1987), and argues that he
preserved his first issue for appellate review because he “made an offer of proof regarding an
entire line of questioning that he was prevented from asking and argued why it should be
admitted.” Appellant reads the narrow rule in Virts too broadly. In Holmes v. State, 323 S.W.3d
163, 170 (Tex. Crim. App. 2009), the Texas Court of Criminal Appeals clarified and restated its
holding in Virts as follows:
[W]here the defendant, in cross-examining a State’s witness, desires to elicit
subject matters that tend to impeach the witness’s character for truthfulness—for
example, to show malice, ill-feeling, ill-will, bias, prejudice, or animus on the part
of the witness toward the defendant—in order to preserve the issue for appellate
review, he is not required to show that his cross-examination would have
affirmatively established the facts sought, but merely that he desired to examine
the witness with regard to those specific subject matters that tend to impeach the
witness during his cross-examination.
In this case, according to appellant’s description to the trial court quoted above, appellant was
not seeking to impeach the complainant’s mother’s character for truthfulness. Instead, appellant
was seeking to raise doubts about the substance of another witness’s testimony. As a result, the
preservation rule in Virts does not apply. See Holmes, 323 S.W.3d at 169–71.
We resolve appellant’s first issue against him.
–3–
SECOND ISSUE
In his second issue appellant argues that he was “prejudiced by a witness’s statement
asserting an extraneous offense during the punishment phase of trial.” More specifically,
appellant notes that during her testimony before the trial court, the complainant’s aunt stated,
“[Complainant] is not the only child [appellant] ever touched.” After this statement, defense
counsel said, “I’ll object.” The complainant’s aunt then said, “And I understand why it couldn’t
come out in this trial.” And the trial court responded, “Don’t worry about it.” On appeal
appellant argues that he was prejudiced by the complainant’s aunt’s statement about other
alleged victims because the State did not identify any other victims in the notice of extraneous
offenses it filed with the trial court. In response, the State argues that appellant did not preserve
his complaint for appellate review. We agree with the State.
In the trial court appellant did not complain about the State’s notice of extraneous
offenses. As a result, we conclude that appellant did not preserve his complaint for appellate
review. See, e.g., Gregory v. State, 56 S.W.3d 164, 176 (Tex. App.—Houston [14th Dist.] 2001,
pet. dism’d) (defendant’s complaint about omissions in State’s notice of extraneous offenses not
preserved for appellate review); see generally Rogers, 640 S.W.2d at 264; TEX. R. APP. P.
33.1(a)(1)(A). We resolve appellant’s second issue against him.
THIRD ISSUE
In his third issue appellant argues that the trial court’s judgment should be reformed to
delete the assessment of $256 in court costs against him because the clerk’s record does not
contain a bill of costs. He argues that without a written bill of costs, the evidence is insufficient
to support the assessment of court costs. The court of criminal appeals recently held that a
complaint about the assessment of court costs can be raised for the first time on appeal. See
Johnson v. State, 423 S.W.3d 385, 390–91 (Tex. Crim. App. 2014).
–4–
In light of appellant’s complaint that the clerk’s record did not contain a bill of costs, we
ordered the Dallas County District Clerk to file a supplemental record containing the certified
bill of costs associated with this case, and the clerk did so. See Johnson, 423 S.W.3d at 391–92
(construing rule of appellate procedure 34.5 and concluding that a bill of costs “can be prepared
and added to the record via a supplemental clerk’s record”). Because the record now contains a
bill of costs supporting the assessment of costs in the trial court’s judgment, appellant’s
complaint that the evidence is insufficient is moot. See Franklin v. State, 402 S.W.3d 894, 895
(Tex. App.—Dallas 2013, no pet.).
Appellant filed two objections to the supplemental clerk’s record. He complains that the
clerk did not file a “proper bill of costs” because (1) it is an unsworn, unsigned computer
printout, and (2) the record does not indicate that the bill of costs was filed or brought to the trial
court’s attention before costs were entered in the judgment. These arguments have been
addressed and rejected by the court of criminal appeals and this Court. See Johnson, 423 S.W.3d
at 392–94; Coronel v. State, 416 S.W.3d 550, 555–56 (Tex. App.—Dallas 2013, pet. ref’d). We
resolve appellant’s third issue against him.
CONCLUSION
We resolve appellant’s issues against him and affirm.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
120550F.U05
–5–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN RICHARD BUSBEY, Appellant On Appeal from the Criminal District Court
No. 4, Dallas County, Texas
No. 05-12-00550-CR V. Trial Court Cause No. F10-11264-K.
Opinion delivered by Justice Lang-Miers.
THE STATE OF TEXAS, Appellee Justices Myers and Lewis participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 22nd day of May, 2014.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
–6–