DocketNumber: 07-02-00047-CR
Filed Date: 3/7/2002
Status: Precedential
Modified Date: 9/7/2015
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Following his plea of not guilty, appellant Gregory Lynn Franklin was convicted by a jury of delivery of a controlled substance in cause number 42,934-A. The record in cause number 42,934-A reflects that appellant negotiated a plea bargain for punishment of 25 years confinement in exchange for his agreement to plead guilty to delivery of a controlled substance in cause number 42,935-A and burglary of a habitation in cause number 31,402-A, each carrying sentences of eight years. Upon receipt of the plea agreement, the trial court informed appellant of his right to appeal his conviction in cause number 42,934-A; however, in accepting appellant's guilty pleas in the remaining two causes, the trial court admonished appellant and explained that he would not have a right of appeal. Notwithstanding the trial court's announcement that he would not have the right to appeal, appellant filed general notices of appeal from his plea-bargained convictions in cause numbers 42,935-A and 31,402-A. By the notices he asserted he could not perfect an appeal pursuant to Rule 25.2(b)(3)(A) and (B) of the Texas Rules of Appellate Procedure for jurisdictional defects or by written motions ruled on before trial. Instead, he requested that the trial court grant him permission to appeal pursuant to Rule 2.52(b)(3)(C). We dismiss the purported appeals for want of jurisdiction.
Appellate jurisdiction is invoked by filing a timely and proper notice of appeal. See State v. Riewe, 13 S.W3d 408, 410 (Tex.Cr.App. 2000). To perfect an appeal from a judgment that was rendered on a defendant's guilty plea and in which the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, a notice of appeal must (a) specify that the appeal is for a jurisdictional defect; (b) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (c) state that the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3); see also White v. State, 61 S.W.3d 424, 428-29 (Tex.Cr.App. 2001) (holding that the notice requirements set forth in Rule 25.2(b)(3) should be interpreted according to their plain meaning and that failing to meet the requirements fails to invoke the jurisdiction of an appellate court).
Appellant's notices of appeal do not contain any of the requirements set forth in Rule 25.2(b)(3) necessary to invoke this Court's jurisdiction over his convictions. Thus, our jurisdiction has not been invoked and the appeals are dismissed for want of jurisdiction.
Don H. Reavis
Justice
Do not publish.
g instruction informing them that they could consider the evidence only for the purpose of determining the intent of the defendant and whether or not the sexual encounter was consensual.
The admission of extraneous offenses is reviewed for abuse of discretion. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996). Thus, we must uphold the trial court's decision to admit the evidence as long as it falls within the zone of reasonable disagreement. Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002).
Under Rule 404(b) of the Rules of Evidence, evidence of other crimes, wrongs, and acts may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. If admissible for one of those reasons, the evidence may nonetheless be excluded under Rule 403, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403.
Next, lack of consent is an essential element of aggravated sexual assault, which element the State must prove. Tex. Pen. Code Ann. §22.021(a)(1)(A) (Vernon Supp. 2004-05); Brown v. State, 96 S.W.3d 508, 512 (Tex. App.-Austin 2002, no pet.); Garrett v. State, 998 S.W.2d 307, 316 (Tex. App.-Texarkana 1999, pet. ref'd, untimely filed). When the accused raises a defensive theory of consent, as appellant did here, he necessarily disputes his intent to commit the act without the complainant's consent. Brown v. State, 96 S.W.3d at 512; Webb v. State, 995 S.W.2d 295, 298 (Tex. App.-Houston [14th Dist.] 1999, no pet.). Furthermore, evidence of extraneous offenses is admissible to prove the requisite mental state if that mental state cannot be inferred from the act itself or if the accused presents evidence to rebut that inference. Brown v. State, 96 S.W.3d at 512. Yet, when the defendant's intent to commit the offense is at issue and evidence of extraneous offenses is to be used to establish intent, the extraneous offense evidence may come in only if there is a similarity between the charged and extraneous offenses. Brown v. State, 96 S.W.3d at 512; Faison v. State, 59 S.W.3d 230, 242 (Tex. App.-Tyler 2001, pet. ref'd). But, a high degree of similarity is unnecessary when the issue is one of intent, as opposed to identity. Brown v. State, 96 S.W.3d at 512-13; Webb v. State, 994 S.W.2d at 299.
Here, a blood sample from appellant was compared with the vaginal swabs from the complainant, and the DNA profile was shown to be that of appellant. Further, appellant admitted to having sexual relations with the complainant, but indicated that it was with her consent. Therefore, the issue of consent was raised, and the State proffered the extraneous assaults to negate his allegation of consent and establish his true intent.
The other two offenses involved girls who were approximately the same age as the complainant and who were enticed into a car at night, driven to a location where they were raped in the car, and threatened with injury or death during the assault. Moreover, the 1992 assault involved appellant offering the victim a substance which eventually caused her to become sleepy before the assault occurred, much like what occurred to the victim at bar. Given this, we cannot say that the trial court's decision to admit the 1992 act fell outside the zone of reasonable disagreement.
Next, while it is true that the 2001 assault involved fewer similarities to the current crime than did the 1992 rape, there were similarities as mentioned above. Moreover, appellant later stated during his cross-examination by the State that he had been convicted of sexual assault as a result of the 2001 incident. So too did he testify about two other convictions (both for burglary) and his use of controlled substances. Additionally, he does not complain on appeal about the admissibility of those convictions. Given this, we cannot say that the admission of the 2001 assault constituted reversible error.
Finally, although the evidence had the potential of being prejudicial if considered for any purpose selected by the jurors, the trial court did limit their usage of it. See Brown v. State, 96 S.W.3d at 513 (assessing whether the trial court provided a limiting instruction when determining the admissibility of the evidence). Moreover, appellant's intent was in dispute. (2) Given those circumstances, the trial court's decision to overrule his Rule 403 objection also fell within the zone of reasonable disagreement.
In his second issue, appellant complains about the testimony of Treva Hill, who described appellant's attack upon Amanda West in 2001. We overrule the issue.
Although appellant argues that the admission of the evidence violated the confrontation clause of the United States Constitution, nothing was said of that provision at trial. He merely objected on the basis of hearsay. So, the constitutional complaint was not preserved for review. Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000).
Appellant also contends the trial court erred in admitting the testimony under the excited utterance exception to the hearsay rule. Once again, we review the trial court's admission of the evidence for abuse of discretion. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001). So too do we note that purported hearsay may be admissible when it consists of a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Tex. R. Evid. 803(2). And, that the statement may be made hours, Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003) (20 hours), or days, Apolinar v. State, 106 S.W.3d 407, 417-19 (Tex. App.-Houston [1st Dist.] 2003), aff'd, No. PD-1057-03, 2005 Tex. Crim. App. 145 (Tex. Crim. App. February 2, 2005) (four days) later is not determinative. Id. Rather, the critical determination is whether the declarant was dominated by the emotions, excitement, fear, or pain of the event or condition at the time of the statement. Salazar v. State, 38 S.W.3d at 154.
Here, Treva Hill described the victim as "extremely upset" and that she was reluctant to talk, sat with her hands in her lap, would look away, and would cry. That these indicia illustrate that West continued to suffer from the emotional impact of the assault when talking to Hill is not something outside the zone of reasonable disagreement. See Salazar v. State, 38 S.W.3d at 154 (holding that regardless of the time that had elapsed between the event and the statement, the testimony showed the child was upset and in pain at the time of the statement, and thus it could not be said that the trial court abused its discretion). And, to the extent that appellant complains that the statement is simply a narrative of past events as opposed to a spontaneous utterance, appellant did not specifically object on that basis at trial. (3) Moreover, it has been held that a police officer could testify about the victim's description of her attacker, her description of the car, her statement that she had been raped, and the details surrounding the rape (much like what occurred between West and Hill at bar) if the circumstances surrounding the exchange permitted the trial court to conclude that the statements were nonetheless excited utterances. Brown v. State, 96 S.W.3d at 513-14.
Appellant contends in his final issue that the evidence is both legally and factually insufficient to show that the offense occurred in Garza County. We overrule the issue.
Venue must be established by a preponderance of the evidence, Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 1977), and the evidence used to satisfy the burden may be either direct or circumstantial. Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983). Additionally, it is sufficient if it permits the factfinder to reasonably conclude that the offense was committed in the county alleged. Sudds v. State, 140 S.W.3d 813, 818 (Tex. App.-Houston [14th Dist.] 2004, no pet.); Flowers v. State, 133 S.W.3d 853, 856 (Tex. App.-Beaumont 2004, no pet.). Next, where venue is sought to be established by someone in a moving vehicle, specific points of reference and measurable passages of time constitute circumstantial evidence susceptible to consideration by the factfinder. Edwards v. State, 97 S.W.3d 279, 286 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd). Here, the victim testified that she fell asleep, and when she awoke, they were parked at a lake with a field to the right and a diesel truck parked nearby. After the assault, she stated that appellant began to drive back to Lubbock, she saw a sign with the words "Garza County" on it, they traveled through Post (which we judicially notice to be located in Garza County), and it took them 40-45 minutes to get to Lubbock. Additionally, when she was shown photographs of a rest area called Green Tank situated along U.S. Highway 84 and which is nine miles southeast of Post and about 45 minutes from Lubbock, she stated she recognized the area and that it was the locale whereat she was assaulted. A Garza County deputy also testified that Green Tank was an area he patrolled. This is some evidence upon which a reasonable factfinder could conclude that the assault occurred in Garza County.
Though appellant testified that he and the complainant had sexual relations in Clapp Park in Lubbock County, it was for the jury to resolve the inconsistent statements and determine the credibility of the witnesses. Sudds v. State, 140 S.W.3d at 818. And, it had ample evidence upon which to conclude, as stated above, that the assault occurred in Garza County. Thus, the evidence is both legally and factually sufficient to support the verdict, assuming of course one can attack the factual sufficiency of the finding. See Sudds v. State, 140 S.W.3d at 817-18 (stating that venue determinations cannot be challenged on the basis of factual insufficiency).
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't
Code Ann. §75.002(a)(1) (Vernon Supp. 2004-2005).
2. 3.
Brown v. State , 96 S.W.3d 508 ( 2002 )
Faison v. State , 59 S.W.3d 230 ( 2001 )
Salazar v. State , 38 S.W.3d 141 ( 2001 )
Apolinar v. State , 106 S.W.3d 407 ( 2003 )
Webb v. State , 995 S.W.2d 295 ( 1999 )
Garrett v. State , 998 S.W.2d 307 ( 1999 )
Zuliani v. State , 97 S.W.3d 589 ( 2003 )
Wright v. State , 28 S.W.3d 526 ( 2000 )
White v. State , 61 S.W.3d 424 ( 2001 )
Wheeler v. State , 67 S.W.3d 879 ( 2002 )