Wright v. State

1

JOSEPH MITCHEL WRIGHT, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-21-00144-CR

Court of Appeals of Texas, Sixth District, Texarkana

July 29, 2022

DO NOT PUBLISH

Date Submitted: July 14, 2022

On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 49,313-B

Before Morriss, C.J., Stevens and van Cleef, JJ.

MEMORANDUM OPINION

Josh R. Morriss, III Chief Justice

Joseph Mitchel Wright was indicted for continuous sexual abuse of his girlfriend's daughter, E.N., who was younger than fourteen years old.^[1] After a bench trial, the trial court found him guilty and sentenced him to forty-five years' imprisonment. On appeal, Wright complains (1) that the trial court erred under Article 38.23 of the Texas Code of Criminal Procedure^[2] when it admitted and considered the testimony and report of a nurse who examined E.N. and (2) that there was insufficient evidence that the sexual abuse occurred over a period that was thirty or more days. Because we find that (1) Wright did not preserve his complaint as to the admission of the nurse's testimony and report, (2) Wright does not have standing to complain of the consideration of the nurse's testimony and report, and (3) sufficient evidence supports the trial court's finding that the sexual abuse occurred over a period of thirty or more days, we will affirm the trial court's judgment.

(1) Wright Did Not Preserve His Complaint as to the Admission of the Nurse's Testimony

Danielle Sanchez, a registered nurse and sexual assault nurse examiner (SANE), performed a sexual assault examination on E.N. on April 3, 2019. When Sanchez began to testify regarding her examination of E.N., Wright made a hearsay objection, which the trial court overruled. When the State offered Sanchez's report of the examination, Wright objected to the report as hearsay, which objection was also overruled. After the conclusion of Sanchez's direct testimony Wright elicited testimony from Sanchez that E.N.'s great-grandmother signed the consent form to allow the examination. At the time of closing argument, Wright argued that Sanchez's testimony and the report should be stricken from the record under Article 38.23 of the Texas Code of Criminal Procedure because the examination had been improperly consented to by the great-grandmother in violation of the Texas Family Code. See Tex. Code Crim. Proc. Ann. art. 38.23(a) ("No evidence obtained by an officer or other person in violation of any . . . laws of the State of Texas . . . shall be admitted in evidence against the accused on the trial of any criminal case."); Tex. Fam. Code Ann. § 32.001 (listing persons authorized to consent to medical treatment of child when person otherwise having right to consent cannot be contacted).

On appeal, Wright complains that the trial court erred in admitting Sanchez's testimony and the report because the examination was obtained in violation of Texas law since a great-grandparent is not among those persons authorized to consent to medical treatment for a child in Section 32.001 of the Texas Family Code. Therefore, Wright argues, this evidence was inadmissible under Article 38.23 of the Texas Code of Criminal Procedure.

"Preservation of error is a systemic requirement on appeal." Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (citing Haley v. State, 173 S.W.3d 510, 515 (Tex Crim. App. 2005)). We should not address the merits of an issue if it is not preserved. Id. at 532-33. "To preserve a complaint for our review, a party must first present to the trial court a timely request, objection or motion stating the specific grounds for the desired ruling if not apparent from the context." Lee v. State, No. 06-15-00004-CR, 2015 WL 5120243, at *1 (Tex. App -Texarkana Sept. 1, 2015, no pet.) (mem. op., not designated for publication) (citing Tex.R.App.P. 33.1(a)(1)). "To be timely, '[t]he objection must be made at the earliest possible opportunity.'" Davison v. State, 602 S.W.3d 625, 648 (Tex. App -Texarkana 2020, pet. ref d) (quoting Martinez v. State, 867 S.W.2d 30, 35 (Tex. Crim. App. 1993)). Further, a "point of error on appeal must comport with the objection made at trial." Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005).

The only objection asserted when Sanchez began to testify about her examination of E.N., and when the State offered the report into evidence, was that the testimony and report were hearsay. Even when Sanchez testified on cross-examination that E.N.'s great-grandmother consented to the examination, Wright did not assert an objection under Article 38.23. As a result, Wright's complaint on appeal does not comport with his objection at trial. Further, even if Wright's final argument that the evidence should be stricken under Article 38.23 is construed as an objection to the admission of this evidence, such objection was untimely.^[3] Consequently, Wright has failed to preserve this issue for our review. See Wilson, 71 S.W.3d at 349; Davison, 602 S.W.3d at 648.

(2) Wright Does Not Have Standing to Complain of the Consideration of the Nurse's Testimony and Report

Wright complains that the trial court erred in considering Sanchez's testimony and report. Again arguing that E.N.'s examination was performed in violation of Section 32.001 of the Texas Family Code, Wright reasons that, under Article 38.23, the fact-finder must disregard the evidence. The State contends that Wright waived this complaint by failing to make a timely objection to Sanchez's testimony and the report. We disagree.

Article 38.23 provides:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a). "The first sentence [of Article 38.23(a)] speaks to the admissibility of evidence," Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000), while "the second sentence of Article 38.23[(a)] speaks to jury instruction," Holmes, 248 S.W.3d at 199 (citing Pierce, 32 S.W.3d at 251). Further, "[a] defendant's decision whether to seek the judge's ruling on admissibility does not affect his right to have the jury instructed on a particular issue." Id. at 200 (quoting Hromadka v. State, No. 1329-00, 2003 WL 1845067, at *1 (Tex. Crim. App. Apr. 9, 2003) (not designated for publication)). Consequently, "an objection to the admissibility of evidence under the first sentence of Article 38.23 [(a)] is not a prerequisite to the right to a jury instruction regarding a disputed factual issue under the second sentence of Article 38.23[(a)]." Id. at 202.

When legal evidence raises an issue under Article 38.23(a), the second sentence requires the trial court to instruct the jury to determine, based on the evidence admitted, whether there has been a violation of the Constitution or laws of either Texas or the United States and, if so, to disregard the evidence. Assuming, without deciding, that such sentence would also require the trial court acting as fact-finder to disregard such evidence,^[4] we find that Wright did not waive his complaint that the trial court should not have considered Sanchez's testimony and her report by failing to properly object to the admission of this evidence. Id.

However, as the State also argues, Article 38.23(a) may not be invoked for a violation of Section 32.001 of the Texas Family Code; and, as a result, Wright does not have standing to invoke Article 38.23 to bar consideration of Sanchez's testimony and her report. In Article 38.23, the Legislature codified the Texas exclusionary rule. Wilson v. State, 311 S.W.3d 452, 458 (Tex. Crim. App. 2010). It is both based on, and broader than, the federal exclusionary rule. Id. "The underlying purpose of both the federal exclusionary rule and Article 38.23 is the same: to protect a suspect's privacy, property, and liberty rights against overzealous law enforcement." Id. at 458-59 (citing Miles v. State, 241 S.W.3d 28, 36 n.33 (Tex. Crim. App. 2007)). As the Texas Court of Criminal Appeals has explained,

Although the plain language of article 38.23(a) would suggest that evidence obtained in violation of any law must be suppressed, . . . article 38.23(a) may not be invoked for statutory violations unrelated to the purpose of the exclusionary rule. The primary purpose of article 38.23(a) is to deter unlawful actions which violate the rights of criminal suspects in the acquisition of evidence for prosecution. Article 38.23(a) may not be invoked for statutory violations unrelated to the purpose of the exclusionary rule or to the prevention of the illegal procurement of evidence of crime.

Id. at 459 (footnotes omitted) (citations omitted).

Nothing in Section 32.001 of the Texas Family Code indicates that its purpose is related to protecting a criminal suspect's privacy, property, or liberty rights. Rather, Section 32.001 which identifies persons authorized to consent to the medical treatment of a child when the person otherwise having the right to consent cannot be contacted, protects the privacy and liberty rights of the child to not be subjected to medical examination and treatment without informed consent. As a result, a violation of Section 32.001 does not constitute a violation of the law within the meaning of Article...