Gary Harrington v. State ( 2010 )


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  •                           COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NOS. 2-08-423-CR
    2-08-424-CR
    GARY HARRINGTON                                                     APPELLANT
    V.
    THE STATE OF TEXAS                                                       STATE
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    FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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    MEMORANDUM OPINION 1
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    I. Introduction and Background
    Appellant Gary Harrington entered an open plea of guilty to five counts
    of possession of child pornography. During the punishment phase, the trial
    court heard uncontested evidence that Appellant possessed more than 2,000
    images of child pornography; a video of an adult man raping a two- or three-
    year-old girl; a video of Appellant’s fourteen-year-old niece, H.H., wearing only
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     See Tex. R. App. P. 47.4.
    a thong; and a homemade magazine of child pornography images. The trial
    court also heard conflicting evidence of two unadjudicated extraneous
    offenses—assertions that Harrington had molested H.H. and his daughter, A.S.
    The trial court assessed punishment at ten years’ confinement on each count
    and ordered that the sentences be served consecutively.             In two issues,
    Appellant argues the trial court erred by (1) admitting and considering evidence
    that he molested H.H. because the unadjudicated extraneous offense was not
    proven beyond a reasonable doubt and (2) excluding defense evidence to
    contradict the unadjudicated extraneous offense.
    II. Discussion
    We review a trial court’s decision to admit or exclude evidence for an
    abuse of discretion. Hayden v. State, 
    296 S.W.3d 549
    , 554 (Tex. Crim. App.
    2009); Paschall v. State, 
    285 S.W.3d 166
    , 172 (Tex. App.—Fort Worth 2009,
    pet. ref’d). Evidence as to any matter may be offered during the punishment
    phase of a trial if the trial court deems it relevant to sentencing. Tex. Code
    Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon 2009). Evidence is relevant
    during the punishment phase of trial if it will assist the factfinder in determining
    the appropriate sentence for the particular defendant in the circumstances
    presented. Rogers v. State, 
    991 S.W.2d 263
    , 265 (Tex. Crim. App. 1999).
    Thus, we will not disturb the trial court’s admissibility ruling on appeal unless it
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    falls outside the zone of reasonable disagreement. 
    Hayden, 296 S.W.3d at 553
    .
    We will also uphold the ruling on any theory applicable to the case. 
    Id. A. Evidence
    Of Unadjudicated Extraneous Offenses
    During the State’s case-in-chief of the punishment phase, Appellant’s
    daughter, A.S., testified that Appellant molested her multiple times when she
    was between the ages of eight and twelve.             During cross-examination,
    Appellant’s attorney introduced A.S.’s affidavit into evidence without objection.
    After A.S. denied comparing stories of being molested with her cousin, H.H.,
    Appellant’s attorney asked A.S. to read the following excerpt from her affidavit:
    “Even after [H.H.] coming [sic] clean that her accusations were false, I still kept
    a watchful eye on my father around my kids.”          The State later presented
    evidence that (1) the information in A.S.’s affidavit that H.H. recanted her story
    that Appellant molested her came from Appellant and A.S.’s mother; 2 (2) the
    video of H.H. “goes to a closeup of [H.H.’s] breast area or genital area”
    numerous times; and (3) H.H. told Detective Angela Lundy that Appellant had
    molested her.3
    2
     H.H. did not testify at trial, and neither party asked A.S.’s mother
    about H.H.’s allegation or recantation.
    3
     On cross-examination, Detective Lundy stated she was not aware
    H.H. had recanted her statement.
    3
    B. Admission and Consideration of Unadjudicated Extraneous Offense
    In his second issue, Appellant asserts the trial court erred by admitting and
    considering evidence that Appellant molested H.H. when the unadjudicated
    extraneous offense was not proven beyond a reasonable doubt.               “When
    evidence of extraneous offenses has been offered, regardless of the respective
    phase of a trial, the law requires that it be proved beyond a reasonable doubt
    that the defendant committed the said extraneous offense, or is at least
    criminally responsible for its commission.” Mitchell v. State, 
    931 S.W.2d 950
    ,
    954 (Tex. Crim. App. 1996).
    To preserve error, a party must continue to object each time the
    objectionable evidence is offered. Martinez v. State, 
    98 S.W.3d 189
    , 193 (Tex.
    Crim. App. 2003) (citing Ethington v. State, 
    819 S.W.2d 854
    , 858 (Tex. Crim.
    App. 1991)); Fuentes v. State, 
    991 S.W.2d 267
    , 273 (Tex. Crim. App.), cert.
    denied, 
    528 U.S. 1026
    (1999). A trial court's erroneous admission of evidence
    will not require reversal when other such evidence was received without
    objection, either before or after the complained-of ruling. Leday v. State, 
    983 S.W.2d 713
    , 718 (Tex. Crim. App. 1998). This rule applies whether the other
    evidence was introduced by the defendant or the State. 
    Id. Here, the
    record
    reveals   Appellant   introduced   the   unadjudicated   extraneous   offense    of
    Appellant’s molestation of H.H. by admitting A.S.’s affidavit into evidence
    during cross-examination.     In addition, Appellant did not object during the
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    State’s presentation of evidence that (1) the basis for A.S.’s statement about
    H.H. was that A.S.’s mother and Appellant told A.S. that H.H. recanted her
    molestation allegation; (2) Appellant made the video of H.H.; (3) the video
    frequently included inappropriate close-up footage of H.H.; and (4) H.H. told
    Detective Lundy that Appellant molested her. Thus, Appellant failed to preserve
    his complaint that the trial court erred by admitting evidence that Appellant
    molested H.H.
    Moreover, when the record does not indicate otherwise, we presume that
    the trial court determined the unadjudicated extraneous offense was proven
    beyond a reasonable doubt and that the court did not consider any improper
    evidence in arriving at the sentence. See Williams v. State, 
    958 S.W.2d 844
    ,
    845 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d) (holding “there is no
    indication that the trial court considered any improper evidence in arriving at the
    sentence“ when the trial judge did not say if he determined whether the
    extraneous offenses were proven beyond a reasonable doubt or if he considered
    them in assessing appellant’s punishment). Here, the trial court did not say if
    it determined that Appellant’s alleged molestation of H.H. was proven beyond
    a reasonable doubt or if it considered the unadjudicated extraneous offense in
    assessing Appellant’s punishment. Thus, as in Williams, there is no indication
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    the trial court admitted or considered any improper evidence in assessing
    Appellant’s punishment. 4 See 
    id. Even assuming
    the trial court erred by admitting or considering evidence
    that Appellant molested H.H., 5 the admission was harmless. See Tex. R. App.
    P. 44.2(b) (providing that a nonconstitutional error “that does not affect
    substantial rights must be disregarded”). Here, the undisputed evidence subject
    to the court’s consideration in assessing punishment was that Appellant
    possessed (1) more than 2,000 images of child pornography; (2) a video of an
    adult man raping a two- or three-year-old girl; (3) a video of H.H. wearing only
    a thong, and (4) a homemade magazine of child pornography images.              In
    addition, the evidence enabled the trial court to find beyond a reasonable doubt
    that Appellant molested A.S. on numerous occasions when she was between
    eight and twelve years of age.       Without considering Appellant’s alleged
    molestation of H.H., the evidence allowed the trial court to appropriately
    sentence Appellant to serve ten years’ confinement consecutively for each of
    4
     Appellant also alleges the State presented evidence of H.H.’s
    molestation allegations without a good-faith basis to believe that it could prove
    the bad act. See Rayme v. State, 
    178 S.W.3d 21
    , 27 (Tex. App.—Houston [1st
    Dist.] 2005, pet. ref’d). However, we find nothing in the record to support this
    allegation.
    5
     The State emphasized A.S.’s testimony about being molested, stating
    “[Y]ou don’t even have to consider whether or not there was any sort of molest
    [sic] on [H.H.].”
    6
    the five counts of possession of child pornography. See 
    Rogers, 991 S.W.2d at 265
    . We overrule Appellant’s second issue.
    C. Exclusion of Hearsay Evidence
    In his first issue, Appellant asserts the trial court abused its discretion by
    excluding evidence Appellant contends would have shown Appellant did not
    molest H.H. Specifically, Appellant contends that the court abused its discretion
    by excluding testimony that H.H. was molested by Appellant’s brother, not by
    Appellant.
    During his case-in-chief, Appellant called Gayle Ardman, a clinical social
    worker who counseled H.H.        During a voir dire examination by the State,
    Ardman testified that she never counseled Appellant and that her testimony
    concerned statements H.H. made to her.         The State objected to Ardman’s
    testimony as hearsay, the trial court sustained the State’s hearsay objection, and
    Appellant made a bill of exceptions. During closing argument, Appellant again
    requested that the trial court admit Ardman’s testimony, claiming the State
    opened the door to Ardman’s testimony during closing argument by stating:
    “And you know what, you don’t even have to consider whether or not there
    was any sort of molest [sic] on H.H.[,] [Appellant] videotaped her.” The trial
    court denied Appellant’s request.
    Hearsay is a statement, other than one made by the declarant while
    testifying at trial, offered in evidence to prove the truth of the matter asserted.
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    Tex. R. Evid. 801(d). Hearsay is not admissible evidence unless it falls within
    an exception provided by statute or the rules of evidence. Tex. R. Evid. 802.
    After an objection to hearsay evidence, the proponent of the evidence must
    establish that an exception applies to make the evidence admissible. Taylor v.
    State, 
    268 S.W.3d 571
    , 578–79 (Tex. Crim. App. 2008). One exception to this
    burden is found in Rule 803(4), which excludes from hearsay a statement made
    for the purpose of medical diagnosis or treatment. Tex. R. Evid. 803(4). In
    Taylor, the court held that this exception may be applicable to statements made
    by a child-declarant to a mental-health professional regarding non-physical
    ailments. 
    Taylor, 268 S.W.3d at 588
    . However, not every statement made in
    the course of mental-health treatment will be admissible simply because such
    statements are likely to be truthful:
    [I]t is incumbent on the proponent of the hearsay exception to make
    the record reflect both (1) that truth-telling was a vital component
    of the particular course of therapy or treatment involved, and (2)
    that it is readily apparent that the child-declarant was aware that
    this was the case. Otherwise, the justification for admitting the out-
    of-court statement over a valid hearsay objection is simply too
    tenuous.
    
    Id. at 590–91.
    Here, Appellant did not establish that truth-telling was a vital component
    of Ardman’s treatment of H.H. or that H.H. was aware that being truthful was
    essential to her therapy.     Instead, Ardman stated that H.H. is “prone to
    exaggeration, lies, and grandiose statements”—raising doubt about H.H.’s
    8
    understanding of the importance of telling the truth during her sessions with
    Ardman. Appellant therefore failed to carry his burden of establishing that a
    hearsay exception applied to make Ardman’s testimony admissible into evidence.
    See 
    id. at 578–79.
    Thus, we hold the trial court did not abuse its discretion by
    sustaining the State’s hearsay objection and excluding Ardman’s testimony. We
    overrule Appellant’s first issue.
    III. Conclusion
    Having overruled Appellant’s two issues, we affirm the trial court’s
    judgments.
    ANNE GARDNER
    JUSTICE
    PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
    DAUPHINOT, J. concurs without opinion.
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: March 25, 2010
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