TJJD

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.