Where assertions of violations of constitutional
rights in juvenile's motion for new trial were vague and untimely, no error was
preserved for appeal. [In the Matter of J.R.N., III.](10-2-10)
On Aril 1, 2010, the Beaumont Court of Appeals held
that constitutional challenges to the trial court's evidentiary rulings should
be raised at trial and at the time the trial court sustained the State's
objections to the admission of the proffered evidence.
10-2-10. In the Matter of J.R.N., III.,
MEMORANDUM, No. 09-08-00029-CV, 2009 WL 6312273 (Tex.App.-Beaumont, 4/1/10).
Facts: In August of 2006, S.W., who was eight
years of age, was living with her mother, M.N., sister, B.W., brother, A.W.,
stepfather, B.N., and her stepbrothers, J.R.N. and J.N. S.W. and B.W. were at
their grandparents' home when S.W. asked to speak with her biological father,
T.W., on the telephone. T.W. lived in Georgia at that time. S.W.'s grandparents
called T.W. so that S.W. could speak with him. While speaking with T.W. on the
telephone, S.W. told him that her stepbrother, J.R.N., had been touching her
privates. T .W. immediately called the Texas Child Protective Services (CPS)
and reported S.W.'s allegations of molestation. T.W. also told his parents about
S.W.'s allegations, and that CPS would contact them.
S.W.'s grandfather, E.W., called the Montgomery County
Sheriff's Department and reported S.W.'s allegations of molestation, and an
officer was sent out to investigate. CPS gave S.W.'s grandparents temporary
custody of S.W., B.W. and A.W., and arranged for the children to go to
Children's Safe Harbor to be interviewed.
Kari Prihoda, a forensic interviewer with Children's
Safe Harbor, testified at trial that she interviewed S.W. on August 8, 2006, and
that S.W. told her about the alleged sexual abuse. Prihoda provided details of
the allegations as relayed to her by S.W. S.W. claimed J.R.N. performed both
oral and anal sex on her. S.W. also claimed that the sexual abuse started when
she was in kindergarten and continued through August 1, 2006, at which time she
was eight years of age. S.W. reported to Prihoda that she told her dad and mom
about the abuse, but that her mom did not believe her. S.W.'s interview was
videotaped, admitted into evidence at trial, and played for the jury.
Following the interview at Children's Safe Harbor,
Karen Trevino, a Sexual Assault Nurse Examiner (SANE) with Children's Safe
Harbor performed a SANE exam on S.W. Nurse Trevino testified at trial that S.W.
reported that her stepbrothers, J.R.N. and J.N., touched her butt and privates
with both their fingers and dingaling. S.W. told nurse Trevino this happened
from kindergarten through the second grade. Nurse Trevino's physical exam of
S.W. indicated clear evidence of blunt force, of penetrating trauma, to S.W.'s
vagina. Nurse Trevino also found scarring on S.W.'s anus which could only be
indicative of a very traumatic assault or chronic abuse over and over, which
is mostly the case with kids. Nurse Trevino testified that she reviewed her
findings with S.W.'s mother, M.N., immediately following the exam, and that M.N.
was extremely angry and told S.W. that she had messed the whole family and
everything up. Nurse Trevino's written findings were admitted into evidence at
trial.
At trial, S.W. recanted. S.W. testified that she
remembered meeting with Prihoda at Children's Safe Harbor and telling her that
J.R.N. abused her. However, she testified that J.R.N. had not abused her, and
that she made it up because her grandmother, father, and stepmother promised her
a horse and two dogs to lie on the boys. When questioned further regarding
the details of the abuse she had provided to Prihoda, S.W. claimed she did not
remember making those statements to Prihoda. Specifically, she did not remember
telling Prihoda the following: that she woke up to J.R.N. touching her, that he
had pulled off her pants, that he moved his finger around, that he put his
dingaling in her butt, that he touched the inside of her butt, that he was lying
on top of her and she was on her belly, that he licked her thing, that he told
her he was doing it because it was a medical thing, that he made her touch his
dingaling and that it felt nasty, and that she told her mother first because
she didn't want it to happen over and over again. Further, at trial, S.W. did
not remember sitting in the prosecutor's office prior to trial and telling him
that she did remember saying these things to Prihoda.
S.W. testified that she remembered writing letters
about her grandfather, E.W., her grandmother, J.W., and her father, T.W. The two
letters, which were dated December 20 and December 30 of 2006, stated that it
was her grandfather, E.W., who had abused her and not her stepbrothers. The
letters stated specifically that [E.W.] put his finger up my pee pee. S.W.
testified that her grandfather touched her in her privates with his fingers
and with his thing. The letters further stated that her grandfather, E.W.,
grandmother, J.W., stepmother, C.W., and her father, T.W., told her to lie
because they wanted [B.N.], [J.R.N.] and [J.N.] out of the [h]ouse. The two
letters were admitted into evidence at trial. When questioned by the State about
the spelling of the names in the letters, S.W. admitted that at the time of her
Safe Harbor interview with Prihoda she did not know how to spell J.R.N.'s last
name. However, she testified that she learned how to spell it while the boys
were still living with them, which was before the interview.
Detective Lisa Pickering testified that she
investigated the allegations made by S.W. against J.R.N. and later, against the
grandfather. Pickering testified that on December 8, 2006, she called S.W.'s
mother, M.N., to get J.R.N.'s father's phone number so that she could call him
and give him an opportunity to bring J.R.N. to the police station, prior to his
arrest. Pickering further testified that on December 12, M.N. called Pickering
and said she filed a report on December 10 because of a note her daughter wrote
to her. Specifically, Pickering testified that according to M.N., S .W. brought
a note to M.N. saying her grandfather was the one who touched her, not her
stepbrothers. J.R.N. was arrested on December 14, 2006. Pickering testified that
she spoke with the grandfather about the subsequent allegations S.W. had
asserted against him, but found the new allegations not to be credible.
Pickering took the information to the district attorney's office for review, but
they refused to file criminal charges against the grandfather based on S.W.'s
allegations.
After the State rested, J.R.N. put on testimony from
several witnesses, including S.W.'s mother, M.N. After deliberation, the jury
returned a verdict against appellant committing him to the Texas Youth
Commission (TYC) for a ten-year determinate sentence.
In four issues, J.R.N. argues that the trial court
erred because (1) J.R.N. was denied the opportunity to pursue a vigorous defense
in violation of his right to confront the witnesses against him through complete
cross-examination of the witnesses and by denying him the right to introduce
certain testimony in support of his defensive theory; (2) the court allowed
testimony concerning allegations against J.R.N.'s brother, J.N., to be
introduced into evidence in violation of J.R.N.'s Sixth Amendment right to
confrontation and Fourteenth Amendment right to due process and fundamental
right to fair trial; (3) the court allowed the SANE report to be admitted into
evidence, without redactions, and the Children's Safe Harbor videotaped
interview, without redacting inadmissible statements, and (4) the evidence is
factually insufficient to sustain the verdict in this case.
Held: Affirmed
Memorandum Opinion: 4 J.R.N.'s constitutional
complaints in issues one and two center around the trial court's exclusion of
certain testimony he attempted to introduce at trial through both direct and
cross-examination of various witnesses. A party seeking to introduce evidence
must meet an objection to the evidence with an argument stating the basis for
its admission. Reyna, 168 S.W.3d at 177. In some instances, J.R.N. stated his
basis for the admission of the excluded testimony and in some instances he did
not, merely continuing instead with his direct or cross-examination after the
trial court sustained the State's objections. In those instances where J.R.N.
did make an argument asserting the basis for the admission of the challenged
evidence, he failed to assert any constitutional grounds as the basis for
admission of such evidence. Likewise, J.R.N. failed to assert constitutional
grounds when he objected to the admission of evidence concerning similar
allegations made against J.R.N.'s brother. Further, J.R.N. did not raise
constitutional grounds when he objected to the admission of the SANE report,
testimony regarding the report, and the unredacted Safe Harbor videotaped
interview.
We note that J.R.N. did raise constitutional
challenges to the trial court's evidentiary rulings in his motion for new trial,
and the trial court heard arguments on that motion. However, we find that the
assertion of the violation of J.R.N.'s constitutional rights in J.R.N.'s motion
for new trial were vague and untimely. SeeTex.R.App. P. 33.1(a) (To preserve a
complaint for review the record must show the complaint was made to the trial
court by a timely request, objection, or motion that stated the grounds for the
ruling that the complaining party sought from the trial court with sufficient
specificity to make the trial court aware of the complaint). The only
constitutional challenge set forth with any specificity in J.R.N.'s motion for
new trial is his complaint that he was denied the right to pursue a vigorous
defense due to the exclusion of the testimony set forth in his bill of
exceptions. To be timely, an objection must be made at the earliest possible
opportunity. Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.1991); see also
Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App.1997) (An objection should
be made as soon as the ground for objection becomes apparent.). Here, J.R.N.'s
constitutional challenges to the trial court's evidentiary rulings should have
been raised at trial, at the time the trial court sustained the State's
objections to the admission of the proffered evidence. Failure to timely object
at trial to error under the Confrontation Clause waives this argument on appeal.
See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App.2000); see also Reyna, 168
S.W.3d at 179 (concluding to preserve error proponent of evidence must clearly
articulate to trial court that confrontation clause requires admission of
evidence).
Conclusion: Because J.R.N. does not complain on
appeal that the trial court abused its discretion in denying his motion for new
trial, we find that J.R.N. failed to preserve his constitutional challenges for
review.