T EX. PEN A L CO DE A NN . s ec . 22.011 (Ve rnon S upp. 1986) de f ine s the of

f ens e and dec la

re s- it to be a f el ony of the 1 second d egre e.

T he punis hm ent

w as enha nce d to a f

irs t de g re e f

el ony unde r T EX. PEN A L CO DE A NN . s ec . 12.42( b) ( Ver

non 1974) 2
w hen app ellant pled true to th e indictme nt's all eg at ion that he had b een previously convicted of the f

elon y off ense of attem pted rob bery . T EX . P ENA L CODE A NN. sec . 12 .32 (Vern on Sup p. 1 98 6) states th at a person ad jud ged guilt y

o f a f elon y o f t he f irst degree shall be pun ished b y confinem ent f

or life or for any

term of no t less than f

ive no r m ore than n inety -nin e y ears. An op tion al f ine of not m ore tha

n $10,000 c ould a ls o hav e bee n im pose d in addi tion to i m

pris onm ent

. 11 th C ourt

of Ap pe a ls Eastland, Te x as Opinion
Allen Ray

Huddleston Appellant Vs

. No . 1 1- 85 -1 37 -C R - - A pp e a l f ro m Pa lo P int o Co un ty State of Texas Appellee
The jury convicted Al l en R ay

Huddleston of sexual assault and asse ssed his punishment 1 2

a t c on fi ne me nt f

or tw e nty y e a rs . We a ff

ir m. There is no challeng e to the s ufficie ncy of t he evidence. Whil e appellant testified and de nied his guilt, the victim’s testimony was lega lly sufficie nt to support the j ury ’s ver dict. See Houston v. State, 663 S.W .2d 455 (Tex.Cr.Ap p . 1 9 8 4 ). The victim was a school teac her who rec og nized appellant a s one of the f ormer stude nts in the school where she taug ht. She made a pos itive identification of a

ppellant as the man who came into her home on A pril 16, 1985, and who, by the use of threats a

nd forc e, made her submit to a ser ies of sexual indignities. Afte r making her kne el in front of him, app el l ant forced his victim to allow him to put his sex ual org an into her mouth. Then he drag g ed her

to the bed and f

orce d her to submit to vag inal intercour se and anal inter course . Appellant commente d afte r the completion of the sexual assaults: “I ' ve shame d y ou, haven’ t I .” The victim replied: “Ye s, y ou have,” Appellant then sa id: “Idon' t know what I ' m g oing to do w ith y ou now.” The victim of

fer ed to give him the key s to her ca r so he c ould go, but a

ppellant said: “You

ca n t ak e m e h o m e. ” S h e d i d n o t wa n t t o go i n t h e ca r wi t h ap p el l an t , an d h e s ai d : “Y o ut h i n k I 'm g oin g to g o ou t so me wh e re a nd wa ste y ou , do n’ t y ou .” She sa id: “ Ye s. ” Th e a pp e lla nt sa id: “ Wel l,2

if Iwas g oing to hur

t y ou, Iwould have a lrea dy hurt y ou.” The y

dresse d , an d t he victim took appellant to his g randmother ’s home. Af ter he left the c ar, she went to a neighbor ’s home and c alled the police. After the police came , they talked to he r, and the n they secur ed a w arr ant and a

rre sted appellant at his gra

ndmother’s house. The sing le g round of e rror deals with what was said at the time of his arre st. Appellant argues that the trial c o u rt er re d when it “a llowed the District Attorne y to question the defe ndant about not g iving a

n explanation to the police office r as t o h i s co n duct.” We quote the r eleva nt questions, answer s, obj ection and rulings whic h occur red dur ing a

ppellant’s cr oss-examination duri ngthe g uil t- inn oc e nt p ha se of tr ia l: Q O ka y . O ka y . Y ou do n’ t ha ve a ny ide a wh y thi s la dy wo uld g e t on th e wi tne ss stand and say

that y ou did what y ou did to her? A No, sir. Q T hin k s he jus t li e d a

bo ut i t? A I don’t know. Q You don’t have any

opinion about that one way or the other ? A Well, I ’ve know n the lady for a long time, I

just --- Q We ll, we re y ou

sh oc ke d a

nd a ma zed wh e n y ou

we re a rr e ste d f

or thi s? A We ll, Idid

n’ t kn ow e xac tly wh a t w a s g oin g on a nd Ia sk e d h im a

nd he re a d me my ri g hts

. Q Y o ua s k e d

h i m w h a t ? W h a td i d

yo us t a rtt o s a y? A I asked the m why

they arr ested — Q T hat’ s n ot t

he wa y y ou sa id i t w a s it ? A Yes, sir. Q T hat’ s th e wa

y y ou sa id i t? Oka

y . A nd the n y ou we re re a d y our r ig hts

. A Uh-huh.3

Q Didn’t -- - then did y ou say any thing e lse? A Told them to g et out of my house once they

had me ha

ndcuff ed. Q Afte r y ou wer e re ad y our rig hts did y ou say any thing e lse? A T old the m to g e t out of

my ho us e , th a t w a s it

. Q Well, did y ou ask them what was g oing on? A I asked the m why

Iwas be ing a

rre sted for. Q U h- huh. Di d y ou

tr y to g ive a ny

e xplanatio n at a ll? MR. WAT SON : Y our H on or , I ’ll ob ject to that. T hat’ s a

c omm e nt o n th is man’ s f a ilure to t e sti fy

a nd make a n in c ri minati ng st a te me nt a g a ins t hi mse lf . I ’l l reque st the Court to inst ruct the jury to disreg ard the question and answe r. THE COURT: Over

ruled. MR. W ATSON: And I ’ll reque st the Court to g rant a mistrial on this matter. THE COURT: Over

ruled. Since the objec tion urg ed in the trial c ourt is not the same as the c omplaint raised in the g round of error , appellant has not proper ly prese rved his complaint for appellate review. See, e.g ., Daniels v. State, 600 S.W .2d 813 at 816 (Tex.Cr.App. 1980). moreove r, simil ar te stimony had bee n admitted when a

ppellant’s attorne y

cross-e x amined the arr esting office rs. Offic er B ishop testified: Q Did he c omplain about being arr ested? A No, sir. Q Did he sa

y any thing at all to y ou about --- ask y ou why y ou wer e ther e? A To me, no, sir. Offic er D ennison testified: Q Did y ou tell him what y ou wer e doing there (at the time of the arr est)? A Yes, sir.4

Q What did he say

or did he a sk y ou what y ou wer e doing there , let me bac k up? A Did he a sk us what we w ere doing the re? Q Y e s. Or

wh y y ou we re a rr e sti nghim ? A No. He didn’t ask us why we we re a

rre sting him at the time. Q O k a y. A H e did

say so me thi ngbu t he did

n’ t a sk us that. As noted in East v. State, 702 S.W.2d 606 at 611 (Tex.C r.App.1985):
I t ha s l on g be e n th e ru le that im pr op e r a dmi ssi on

of e vid e nc e do e s n ot c on sti tut e reve rsible er

ror if the same fa cts wer e prove d by evidenc e not objecte d to. Since the matter

of appe llant’s post-arr est com m en t s was orig inally raised by

appellant’ s own lawy er, w e hold that the trial c ourt did not err in ove rruling appellant’ s objection to the district

a tt o r n e y ' s qu e s t i o n a s t o w h e t h e r a p p e l l a n t t r i e d t o g i v e a n e xp l a n a t i o n a t t h e t i m e o f h i s a rr e st. Fur ther, even i f t he question wer e held to be in violation of Doy le v. Ohio, 426 U.S. 610 (1976), we would hold that under the fac ts of t his case , the error was harmless because we be lieve beyond any

rea sonable doubt that the dis t ri ct att orney ’s unanswe red que stion did not contribute to the ve rdict of g uilty or to the 20-y ear

sentenc e which was assessed. See Chapman v. Califor nia, 386 U.S. 18 (1967). The sing le g round of e rror is overrule d. The judg ment of the trial c ourt is affir med.

Marc h 13, 1986 BO B D I CKENSON No t pu bli sh e d. Se e TE X. CR. APP .R. 20 7. JUSTI CE