1 John T. Boyd, Chief Justice (Re t.), Sev enth Co urt of A ppe als, sitting by ass ignm ent. Tex. Gov’t Code An n. §7 5.00 2(a) (1) (V erno n Su pp. 2 003 ).

2 App ellant w as c onv icted o f the p ene tration o f both th e anus and t he female sexual organ of the victim withou t her c ons ent. NO. 07-02-0462-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E OCTOBER 20, 2003

______________________________

JOSEPH KALKA, Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 159 TH DISTRIC T COURT O F ANGELI NA COUNTY; NO. 22,630; HON. PAUL E. W HITE, PRESIDING

_______________________________

OPINION

_______________________________ Before QUINN and REAVIS, JJ., an d BOYD, S.J. 1 Appellant

Joseph Kalka appeals his conviction on two counts of aggravated sexual assault. 2 Through four is sues, he contends that 1) the trial cour t erred in overruling his objection to evidence of an extraneous bad act, 2) the trial court erred in overrulin g hi s2

objection to the admissi on of hearsay ev idence, and 3) the evidence was leg ally and factually i nsufficient to suppor t the convi ction. We affirm the judgment. Issue One - Ex

traneous Of

fense In his first i ssue, appellant asserts that the trial court erred in overruling his objection to test imon y by C athlena (t he victi m) that appellant had previo usly prop ositioned her to have sex with hi m. We overrule the issue

. The all egedly i mproper testimony came into ev idence d uring the following exchange : Prosecutor:

. . . [D]id you know the Defendant, Mr . Kalka, before that date? Witness: Yes. He stopped me on the road a co uple times. Prosecutor: What did he ask you when h e stopped you on the road? Witness: “Come have s ex wi th me.” Prosecutor: And did you e ver go w ith hi m? Witness: No. Prosecutor: How many times do you think he stopped you on the ro ad? Witness: Ten - - five times or ten. Prosecutor: Five or ten times? Witness: Uh-huh. Prosecutor: W hen he would stop you, would you be - - Defendant: Your

Honor, I’m going to object at this point. This is - - I’m [sic] mean, I’m goi ng to obj ect firs t off on the grounds of relevance and, second, it v iolates the 404(b) noti ce. We did not get any notice they were going to try to bring i n other such acts, and I’ll just sort of l eave my obj ection there. As can be seen, appellant’s ob jection was not uttered until the prosecutor as ked and the witness answered several questions involving appellant’s prior effort at propositi oning the3

witness. By then, the jury had he ard her statethat appellant i nvited her to have sex with him and had stopped her on the road a number of times. Under t hese circumstances, the purported error was waived. See Jones v. State, 111 S.W.3d 600, 604 (Tex. App.–D allas 2003, no pet. h.) ( holding that error is waived if the objection is made after the State has elicited the improper testimony and no legit imate reason is offered for

the failure to timely object); Tell v. Stat

e , 908 S.W.2d 535 , 543- 44 (Tex. App.–F ort Worth 1995, no pet.) (holding that the objecti on was waived becaus e it was not asserted i mmediately after the purportedly inadmissible testimon y was mentioned). Issue Two –

Hearsay In his seco nd i ssue, appellant compla ins about the reiteration by Off icer Bonnie Grimes of “the nature of w hat Cathlena re ported to” her when Gri mes was per

forming her investig ation. Same was allegedl y hearsay . We overrule the iss ue. The following is the exchange during wh ich the alleg edly objec tionable matter arose: Prosecutor: What was the nature of what C athlena reported to you? Defense: Anyth ing th at’s going t o com e out is goin g to be hear say. Court: W ell counsel, appro a ch. I’m not - - until I’ve heard th e

response, I don’ t know if I can rule on that one. (At the Bench, off the r ecord.) Court: Ms. Armstrong, I’m going to overrulethe objection, but since I

caused this i nterruption, y ou may restate the question

. Prosecutor: What was the nat ure of the crime M s. Armstron g report ed to

you? W itness: That she had been sex ually ass aulted.4

As can be seen, at t he time appellant uttered his ob

jection, the w itness had yet to answ er the question. Furthermore, it is reas onably conce ivable that any answer forthcoming may or ma y not h ave contained hears ay since t he question pos ed inquired into the “ nature of what Cathlena repor

ted.” (Emphasi s added). For instance, thewitness simp ly cou ld ha ve said something li ke “Cathlena described tome wha t hap pen ed”; that would not h ave been hea rsay. In other w

ords, from the structure of the question asked, the tri al court could not necessarilyconc lude that the o nly or p roba ble a nswer fort hcom ing wo uld c ontain inadmissible evidence, a nd it said as much when it told counsel that it could not determine if it was hearsay

until it heard the response. Thus, we conc lude that the trial court di d not abuse its d iscr etion when i t overrul ed appellant’s objection. N or do we conclude that appellant

preserved his c omplain t to the answer eventual ly gi ven by t he witness after further questi oning because he did not object at that time. Issues Three an d Four - Legal and F

actual Suff

iciency In his next and final two issues, appell ant argues th at the evidence is legal ly and factually insufficien t to support his convictions. W e overrule them as well.
a. Standard of Revi ew The applicable s tandards of rev iew are w ell-settl ed and fully di scussed in Jackson
v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed.2d 560 (1979), Sims v. State, 99 S.W.3d 600 (Tex. Crim. App. 2003), Zuliani v. State, 97 S.W.3d 589 (Tex. C rim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000). We refer the litiga nts to those opinions. b. Application of Standard3 Cathl ena test if ied t hat I ra had forced her to hav e sexual rel ati ons wit h him on one prev ious occa sion and that she was afr aid no t t o joi n him when he cal led her name. I ra t esti fi ed that Cathl ena was the one who called to him and sou ght to join the grou p.

4 Ira conceded he had sexua l relat ions wit h Cathl ena, but contended they

were consensual . Appel lant also relied o n a d efe nse of co nse nt. 5 The record before usillustra tes that on November 6, 2001, Cathlena was walking home to her parent’s house a round 6 :00 p.m. Though 19 yea rs old, she h ad the mental capacity of a six or se ven-ye ar-o ld ch ild. W hile on he r way hom e, sh e pas sed b y a trailer. Three men were i n front of it drink ing beer. One of the men, Ira Car

twrig ht, was so meone she had known for

most of h er li fe, and h e call ed her over to joi n them. 3 B y that tim e, Cathlena alre ady ha d seve ral glas ses of wine g iven to her by a man w hose yard s he helped clean. Mor

e alcohol was given to her at th e trailer. The group was joined by appellant w ho lived nex t door. Atsome time, the four men and C athlena went into the trai ler. Ira told her to g o into the back bedroom and remove her clothes. Shedid so because she was afraid he would rip them off, as he alleg edly had done on ce before. While in the bedr oom, he forced Cathlena to perform oral sex on him and then raped her vaginally. Before Cathlena had puther clothes back on, appella nt entered the r oom naked, pushed her back on the bed, and raped her both v

aginally and anally. The girl s aid she strug gled, scr eamed, and told appellant

to stop. 4 Wh en he finished, sh e dress ed and passed out i n the livi ng room. The next mornin g, Cathlena awoke in bl ood and feces from rectal incontinence. Five days laps ed before she told a friend of the inciden t. The friend repor te d it to the authorities

. At that t ime, Cathlena was taken to a hospita l where multiple bruises were discover ed. The bruises were six or seven days old and appeared to be ca used by6

someone’s fingers. Also discover ed were a k noton her head and sev ere lacerati ons to her
a nus. The latter caus ed her to suffer bleedi ng, sever e pain, fecal incontinen ce, an d difficulty in walking . Furthermor e, these injuri es were c

onsistent w ith non-consens ual anal sex, according to a witness. The foregoing constitutes some e vidence upon w hich a ration al jury could conclud e, beyond reasonable doubt, tha t appellant 1) intentio nally or knowing ly penetrated Cathlena’s anus or female sex ual organ w ithout her cons ent, and 2) cause d her to suffer serious bodil y injur

y whi le doing so. That is enough to warra nt convict ion for aggr avated sexual assault. See T EX
. P EN
. C ODE A NN
. §22.021(a) (Vernon 20 03) (s tating that on e commits aggravated sexual assault if the person in t entionally or knowi ngly causes the penetration of the anus or female sex ual organ of anothe r person w ith out that person’s consent and causes

serious bodi ly injur

y in the course of that cri minal episode)

. Appellant

would dis agree w ith our concl usion because, in hi s estimation, Cathlena’s mental condition re ndered her testi mony “ex tremely su spicious” and “inher en tly untrustwor

thy.” Thus, “no rational trier of fact could [purpor tedly] base a convicti on” on it. Yet, he cites no authority to support the propo sition that the testimony ofthose havin g mental limitations akin to Cathlena’s is unbeli evable a nd, consequentl y, wi thout weig ht. This may beso because men tal r etarda tion do es not make th e reco llect ions of its v icti ms “inhere ntlyun trustworthy”; rather, it simply affects the weight a juror may assign to their test imon y. Allen v. State , 479 S.W.2 d 278, 280 ( Tex. Crim. App. 1972) (hol ding that mental retardation affects the weig ht of the evid ence not its admissibility). So, the girl’s testimony

atbar was not legally incompetent, and the jurors were free to conside r it if they so chose.7

Nor do we hold that Cathlena’s mental status and inconsistent statements render

ed the verdict clea rly wrong or man ifestl y unjust. A gain, the jury was free to assign to h er testimony

whatever weight it cared to. So too was it free to consider the affect her inconsistenc ies had on her credibility. More importantly, her test imony and its inconsistenci es was no t the only e vidence before the jury. The latter w as also informed of the trauma inflicted up on Cathle n a’s body and its consis tency w ith a non-conse nsual attack. Ap pellant says nothing about this evidence or how it bolsters Cathlena ’s recollecti on of the event. In stead, he focuses on her mental limitation and “lack ofmastery
over a simple w

ord of the Engli sh languag e” to argue that a “miscarriage of just ice” occurred. That she may have had the mind of a six y ear old, that her

test imon y may ha ve been inconsistent

at times, and that

she could not

say the w

ord “confused,” does not strip the verdict of either l egall y or factually sufficient evi dentiary s upport given the entirety of the evidence and the jury’s right to weigh it and asse ss the credibili ty of tho se testi fying. Accordingl y, the judg ment of the trial court is affirmed.

Brian Quinn Justice Do not publish

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