             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00181-CR
     ___________________________

  HARRY C. WASHINGTON, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 297th District Court
         Tarrant County, Texas
       Trial Court No. 1501212R


   Before Gabriel, Kerr, and Pittman, JJ.
  Memorandum Opinion by Justice Gabriel
                          MEMORANDUM OPINION

      Appellant Harry C. Washington appeals from his convictions for two counts of

aggravated sexual assault and for one count of aggravated assault with a deadly

weapon. See Tex. Penal Code Ann. §§ 22.02(a)(2), 22.021. In two points, he argues

that (1) he was denied a fair trial, the right to compulsory process, due process, and

due course of law because the trial court sustained the State’s hearsay objections to

portions of his trial testimony and (2) the trial court erred by ordering his sentences

for aggravated sexual assault to run consecutively. Because Washington did not

preserve his first point for our review and because the State agrees that the

consecutive sentences were not authorized, we modify the judgments for aggravated

sexual assault to reflect that the sentences are to be served concurrently and affirm

these judgments as modified. See Tex. R. App. P. 43.2(b). And because none of

Washington’s appellate arguments are directed to his conviction for aggravated assault

with a deadly weapon, we affirm that judgment. See Tex. R. App. P. 43.2(a).

                                I. BACKGROUND

      Washington was married to Elaine1 for ten years until their separation in 2016.

After the separation, Elaine and her five children with Washington lived with Elaine’s

mother. One night, Elaine awoke to Washington holding a knife to her side. He

forced Elaine to leave with him, promising to stab her “a hundred times” if she

      1
       We use an alias to refer to the complainant. See Tex. R. App. P. 9.8 cmt.; Tex.
App. (Fort Worth) Loc. R. 7.


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refused. Over the course of the night, Washington forced Elaine to have sex with

him three times. Because Elaine was scared, she told Washington “stuff he wanted to

hear” and admitted that she never told him “no” during the entire episode.

      Washington’s defense at trial was to question whether Elaine consented to, or

led Washington to believe that she consented to, the sexual acts. In other words, he

attacked the evidence regarding his culpable mental state. See Tex. Penal Code Ann.

§ 22.021(a).   Washington testified at trial and asserts on appeal that he tried to

“describe for the jury statements made by [Elaine] that [led] him to believe that she

was not being forced to engage in sexual activity and that she was a willing

participant.” The trial court sustained (or failed to rule on) the State’s multiple

hearsay objections to this testimony.

      The jury found Washington guilty of the three offenses, assessed seven-year

sentences for the aggravated-sexual-assault convictions, and assessed his punishment

for aggravated assault at ten years’ confinement, recommending that the ten years be

suspended and that Washington be placed on community supervision. The trial court

entered judgments in accordance with the jury’s verdicts but ordered, at the State’s

request and over Washington’s objection, that the aggravated-sexual-assault sentences

be served consecutively. Washington’s motion for new trial was deemed denied. See

Tex. R. App. 21.8(c). In Washington’s notice of appeal, he specified that he was

appealing only the aggravated-sexual-assault convictions.



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                                    II. HEARSAY

       In his second point, Washington asserts that the trial court’s actions and, in one

instance, inaction regarding the State’s five hearsay objections to his trial testimony

prevented him from establishing his defense by excluding “evidence that caused him

to believe that the victim acted with consent.”2 Washington did not object to or offer

an admissibility theory regarding the trial court’s four specific hearsay rulings and,

thus, did not preserve this argument directed to those four rulings for our review. See

Tex. R. App. P. 33.1(a)(1)(A); Golliday v. State, 560 S.W.3d 664, 670–71 (Tex. Crim.

App. 2018). The trial court did not make a ruling on the State’s objection regarding

the fifth instance challenged by Washington on appeal. Washington’s failure to object

to the trial court’s failure to rule procedurally defaults any error. See Tex. R. App. P.

33.1(a)(2)(B).

       Washington also points to a colloquy between his counsel and the trial court

after counsel asked to approach the bench before continuing his direct examination of

Washington. Counsel informed the trial court that he wanted to question Washington

about what Elaine said to Washington to show his lack of a culpable mental state.

The trial court explained that if the testimony is offered for the truth of the matter

asserted, it is inadmissible unless counsel could “overcome a hearsay objection.”


       2
         Because consent is not at issue in a prosecution for aggravated assault with a
deadly weapon, this issue is directed solely to his convictions for aggravated sexual
assault.


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Washington’s counsel responded, “I understand,” and conceded that he would “just

refer to [Elaine’s] actual testimony because that’s already in the record.” At this point,

Washington’s counsel was not challenging a trial court ruling or offering an

admissibility theory for Washington’s testimony. Indeed, counsel indicated that he

would rely on the same evidence introduced elsewhere—Elaine’s testimony. Thus,

the colloquy did not preserve any error occasioned by the exclusion of Washington’s

hearsay testimony. See, e.g., De La Garza v. State, No. 06-15-00123-CR, 2016 WL

1435354, at *2 (Tex. App.—Texarkana Apr. 12, 2016, pet. ref’d) (mem. op., not

designated for publication); Pittman v. State, No. 12-10-00328-CR, 2012 WL 5356306,

at *13 (Tex. App.—Tyler Oct. 31, 2012, pet. ref’d) (mem. op., not designated for

publication).

      Additionally, at no point did Washington raise the constitutional issues he

raises on appeal, which similarly waives his constitutional claims. Cf. Eustis v. State,

191 S.W.3d 879, 886 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding

hearsay objection did not preserve Confrontation Clause claim). We also note that

even if it were error to exclude the objected-to testimony, Washington would not

have been harmed because Elaine’s apparent consent was admitted through her

testimony and was considered by the fact-finder in assaying Washington’s defense.

See Tex. R. App. P. 44.2; Wilkinson v. State, 523 S.W.3d 818, 825–26 (Tex. App.—

Houston [14th Dist.] 2017, pet. ref’d); Infante v. State, 404 S.W.3d 656, 663 (Tex.

App.—Houston [1st Dist.] 2012, no pet.). We overrule point two.

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                      III. CONSECUTIVE SENTENCES

      In his first point, Washington argues that the trial court erroneously ordered his

aggravated-sexual-assault sentences to run consecutively because they did not fall into

an exception to the statute requiring sentences arising from the same criminal episode

to run concurrently. See Tex. Penal Code Ann. § 3.03(a)–(b). The State agrees that

the sentences were erroneously stacked; thus, we sustain point one.

                                IV. DISPOSITION

      We modify the aggravated-sexual-assault judgments—counts one and two in

cause number 1501212R—to show that the sentences are to run concurrently to each

other and affirm these judgments as modified.         Because none of Washington’s

appellate points attack the judgment convicting him of aggravated assault with a

deadly weapon—count five in cause number 1501212R—we affirm that judgment.


                                                     /s/ Lee Gabriel

                                                     Lee Gabriel
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: May 23, 2019




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