      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-02-00423-CR



                                   Roberto Gonzales, Appellant

                                                   v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
          NO. 9024070, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Roberto Gonzales of two counts of aggravated sexual

assault of a child, see Tex. Pen. Code Ann. § 22.021 (West 2003), indecency with a child by contact,

see id. § 21.11(a)(1), and indecency with a child by exposure, see id. § 21.11(a)(2). The district court

assessed prison terms of forty-five years for the aggravated assaults, twenty years for the indecency

by contact, and ten years for the indecency by exposure. Appellant raises two points of error on

appeal, contending that the district court abused its discretion by: (1) allowing the admission of a

video-taped confession which also contained testimony regarding past crimes committed by

appellant; and (2) allowing the testimony from a State’s expert who was not properly identified

pretrial on the State’s witness list. We will affirm the judgment of the district court.
                                          BACKGROUND

                The complainant in this case—a sixteen-year-old girl at the time of trial—alleged that

on several occasions appellant sexually assaulted her beginning ten years earlier. At the time the

assaults began, the complainant’s mother and appellant were romantically involved. Six years after

the sexual assaults ceased, the complainant saw appellant in public and she then for the first time told

her mother that appellant had sexually abused her during the time that the complainant’s mother was

romantically involved with appellant. With the assistance of her family and counselors, the

complainant sought to have the appellant prosecuted.

                After the complainant came forward to authorities, Austin Police Department

Detective Todd Gage asked appellant to meet him in his office for an interview. Appellant

consented and Detective Gage obtained appellant’s permission to videotape the interview. During

the course of the interview, appellant confessed to sexually assaulting not only the complainant, but

also her sister. Appellant then signed a written confession. Pretrial, appellant filed two separate

motions in limine seeking to restrict the State from referring to any prior criminal offenses

committed by appellant. The trial court granted both motions.

                At trial, appellant complained that the jury was allowed to hear portions of the

videotaped confession which related to appellant’s parole status for an unrelated burglary charge and

to the statement regarding appellant’s confession of sexually assaulting the complainant’s sister, in

violation of his motions in limine. Appellant also complained at trial of the admission of testimony

from an expert witness for the State. Appellant claimed that the admission of the video tape and the




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expert testimony impermissibly prejudiced his defense. All of his objections were overruled. On

appeal, appellant argues that the district court abused its discretion.


                                            DISCUSSION

Confession

                In his first point of error, appellant contends that the district court erred by admitting

the videotaped confession in which appellant disclosed his parole status for burglary, and admitted

to assaulting the complainant’s sister during the same time period he allegedly sexually assaulted the

complainant. When the State played the portion of the videotaped confession which contained

references to appellant’s prior criminal acts, appellant objected. The parties had agreed that the State

would “fast-forward” through the sections of the video that contained inadmissible evidence.

According to appellant, the State failed to carefully edit and redact, and thus the jury heard

inadmissible evidence regarding the extraneous criminal acts mentioned above. Appellant argues

that the videotape as shown, violated his motions in limine1 and that there was a risk of prejudicial

effect on the jury. Appellant claims that the video contained portions which the jury should not have

been allowed to hear. The State responds that appellant failed to preserve error regarding the

admission of the videotaped confession. We agree with the State and will therefore overrule

appellant’s first point of error.




        1
        Although the trial court granted both of appellant’s motions in limine, it is well established
that a motion in limine does not take the place of a timely objection and does not preserve error,
whether the motion is granted or denied. McDuff v. State, 939 S.W.2d 607, 618 (Tex. Crim. App.
1997); Romo v. State, 577 S.W.2d 251, 252 (Tex. Crim. App. 1979).

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                In order to preserve error on appeal, a party must obtain an adverse ruling from the

trial court or object to the trial court’s refusal to rule. A party must have presented to the trial court

and obtained a ruling upon the party’s timely request, objection or motion, stating the specific

grounds for the ruling that the party desired the court to make if the specific grounds were not

apparent from the context. See Tex. R. App. P. 33.1(a)(2)(A) & (B); Long v. State, 800 S.W.2d 545,

548 (Tex. Crim. App. 1990). The specific objection is required to inform the trial judge of the basis

of the objection and afford the judge the opportunity to rule on it. Crane v. State, 786 S.W.2d 338,

345 (Tex. Crim. App. 1990) (citing Purtell v. State, 761 S.W.2d 360, 365 (Tex. Crim. App. 1988)).

Moreover, the specific objection requirement serves the purpose of affording opposing counsel an

opportunity to remove the objection or to supply other testimony that would not be the subject of

objection. Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). Further, the objection

must be made in a timely fashion, or at the earliest possible opportunity, and the failure to do so

constitutes a waiver of the complaint. Stevens v. State, 671 S.W.2d 517, 521 (Tex. Crim. App.

1984). Finally, the party asserting the objection must pursue the matter to the point of receiving an

adverse ruling from the trial court. Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999).

When the motions in limine were violated, there should have been a request for an instruction to

disregard, and a motion for a mistrial if an instruction to disregard had been given. Nethery v. State,

692 S.W.2d 686, 701 (Tex. Crim. App. 1985). The proper method of pursuing an objection to an

adverse ruling has three parts. They are: (1) object and, if the objection is sustained; (2) request an

instruction to disregard and, if granted; (3) move for a mistrial. Fuller v. State, 827 S.W.2d 919, 926

(Tex. Crim. App. 1992).



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                Here, appellant failed to receive any adverse ruling on any of the above-mentioned

steps to preserve error. See Tucker, 990 S.W.2d at 262. The record indicates that although appellant

did object, the trial court was inclined to offer a limiting instruction to the jury to disregard such

portion of the testimony that may have been otherwise inadmissible. The trial court stated, “I have

an instruction and I will give it as you request. I will give it now . . . and in the charge, . . . or I will

even adapt it to say [the jury] shall not consider [the extraneous evidence] for any purpose and

disregard it completely.” Counsel for appellant responded, “I don’t want to, Judge. I’m going to do

nothing. I don’t want to make a big deal out of it.” Thus, the trial court offered appellant an

opportunity to cure the error of the admission of the inadmissible portions of the videotaped

confession. See Torres v. State, 491 S.W.2d 126, 128 (Tex. Crim. App. 1975). However, appellant

declined the trial court’s offer for the instruction,2 and because appellant did not affirmatively obtain

an adverse ruling from the trial court, we conclude that appellant did not preserve error for this point

on appeal. We overrule appellant’s first point of error.




        2
          The court of criminal appeals made clear in Fuller that strict adherence to the order of the
above steps is not necessary, as long as at some point during the process an adverse ruling is obtained
from the court in order to preserve error. Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App.
1992). Thus, if appellant believed that the limiting instruction would have emphasized the
confession of prior acts in the mind of the jury, then he could have moved for a mistrial. Id. In the
event that the motion for mistrial had been denied, appellant would have preserved the error because
an adverse ruling would have been issued by the trial court. See Cooks v. State, 844 S.W.2d 697,
727 (Tex. Crim. App. 1992). Here, appellant received the opportunity for an instruction, but because
he declined the instruction and did not move for a mistrial, he did not preserve error.

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Admission of Expert Testimony

                In his second point of error, appellant complains that the district court erred in

allowing the testimony of an expert witness for the State who was not on the State’s pretrial witness

list. The State had designated Dr. Vivian Lewis-Heine as a potential expert witness. However,

because Dr. Lewis-Heine was unavailable to testify, the State substituted Dr. William Lee Carter.

At trial, appellant objected and argued that the State had not updated its witness list prior to the

beginning of trial to include the name of Dr. Carter, nor had the State “even bothered to inform

defense counsel of the witness change until [the State] called Dr. Carter to the stand.” The district

court determined that the witness could testify because Carter’s testimony was to be substantially

the same as would have been given by Dr. Lewis-Heine. According to appellant, the surprise nature

of the expert testimony of Dr. Carter was damaging because appellant was not able to properly

prepare for the witness’s cross-examination. At trial, appellant argued, “It’s a surprise. It’s undue

surprise. And I’m asking that . . . the proper sanction is to exclude that witness.”

                If a witness whose name is not on a witness list furnished to the defendant is

permitted to testify, the standard of review is whether the trial court abused its discretion in allowing

the witness to testify. Bridge v. State, 726 S.W.2d 558, 566 (Tex. Crim. App. 1986). An appellate

court may reverse a trial court’s decision for an abuse of discretion only when it appears that the

court applied an erroneous legal standard, or when no reasonable view of the record could support

the trial court’s conclusion under the correct law and the facts viewed in the light most favorable to

its conclusion. Guzman v. State, 955 S.W.2d 85, 89-90 (Tex. Crim. App. 1997). Even if the

appellate court would have reached a different result, it should not intercede as long as the trial



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court’s ruling was within the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1991) (op. on reh’g).

               The primary factors to consider in determining whether a trial court has abused its

discretion include whether there is a showing of bad faith on the part of the State and whether the

defendant could reasonably anticipate that the witness would testify, despite the omission of his or

her name from the witness list. Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. 1981).3

However, a defendant’s ability to reasonably anticipate that a witness will testify is “merely a factor

to be considered, it is not, by itself, determinative of whether the trial court abused its discretion.”

Stoker v. State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989). We agree with the State that the critical

factor is whether or not an unexpected witness meaningfully hampers the defense’s preparation.

               Here, the State indicated that the testimony of Dr. Carter would be substantially the

same as that of Dr. Lewis-Heine, and in fact would be shorter because Dr. Carter would be testifying

only on the psychological traits of a victim of sexual abuse whereas Dr. Lewis-Heine was to testify

additionally about the characteristics of the sexual abuser. The court found that the testimony of Dr.

Carter would be substantially the same as the testimony that Dr. Lewis-Heine would have given had

she been present. We recognize that the very nature of this science suggests that expert opinions are

likely to vary notwithstanding the fact that appellant could have reasonably anticipated that the State

would call an expert witness to testify about the psychological traits of a sexual abuse victim.

Nonetheless, we must also consider that a copy of Dr. Carter’s curriculum vitae was given to


       3
          Appellant does not complain that bad faith was involved in the changing of expert witnesses
at trial. Accordingly, we will only address the issue of whether appellant could have reasonably
anticipated the testimony of an expert witness other than the witness on the witness list.

                                                   7
appellant, and the district court asked appellant if he would like to conduct a voir dire examination

of Dr. Carter. Appellant declined to do so. Nor did appellant move for a continuance in order to

interview the witness or further determine the matters about which he was to testify. Having failed

to do so, appellant cannot now complain that the testimony resulted in surprise. Barnes v. State, 876

S.W.2d 316, 328 (Tex. Crim. App. 1994). We conclude that appellant’s opportunity to prepare for

trial was not undermined. See Stoker, 788 S.W.2d at 15. Accordingly, we hold that the district court

did not abuse its discretion by allowing the State to substitute Dr. Carter in place of Dr. Lewis-Heine.


                                          CONCLUSION

               Having overruled appellant’s points of error, we affirm the judgment of the district

court.




                                               __________________________________________

                                               W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: July 11, 2003

Do Not Publish




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