                                    NO. 07-07-0175-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL D

                                   JUNE 24, 2008
                          ______________________________

                                   GREGORY MOBLIN,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

              FROM THE 331ST DISTRICT COURT OF TRAVIS COUNTY;

              NO. D-1-DC-06-302103; HON. BOB PERKINS, PRESIDING
                       _______________________________

                                Memorandum Opinion
                            _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       Gregory Moblin was convicted of sexually assaulting a child (his stepdaughter). He

requests reversal of that conviction by claiming 1) the trial court erred in not allowing him

to question the complainant as to whether she had been sexually active in the past, 2) the

trial court erred in allowing the State’s expert witness to opine on appellant’s reaction to a

pretext phone call from the complainant, 3) the trial court erred in allowing testimony from

the complainant’s grandmother as to the truth of the complainant’s allegations, 4) the trial
court erred in allowing the State to pose a leading question, and 5) the evidence is factually

insufficient to sustain the verdict. We affirm the judgment.

       Issue 1 - Evidence of Complainant’s Past Sexual Activity

       In his first issue, appellant argues that he should have been allowed to question the

sixteen-year-old complainant as to whether she had been sexually active prior to

appellant’s assault. With the encouragement of the police, the complainant had made two

pretext telephone calls to appellant in which she informed him that she was pregnant and

had not had sexual relations with anyone but him. Appellant contends the trial court erred

in not letting him ask whether she was sexually active because it was misleading to leave

the impression that the complainant had not engaged in sexual activity with others. We

overrule the issue for two reasons.

       First, the trial court could well have decided that the testimony was irrelevant given

the reason why appellant cared to delve into it. Indeed, appellant does not argue that he

was prevented from showing that he did not engage in prohibited sexual activity with the

minor. Rather, he wanted to show that he was not the only one who had known her.

Showing that others had been intimate with the youth does not somehow legitimize his

conduct with her; indeed, we know of no rule or defense that says because a minor had

sex with others, then the minor became lawful game for any adult having lustful tendencies.

So, given his reason for wishing to develop the subject, we cannot say that the subject

matter was relevant.

       Second, even if appellant sought to dispel confusion or an inaccurate impression

about the youth’s sexual experience, evidence appears in the record doing so. It comes

in the form of a witness testifying that a particular rape exam was not performed on the


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youth because she did not meet one of the requisites. Thus, even if the result did not arise

from appellant’s own efforts, the goal he sought was achieved.

       Issue Two – No In-Camera Hearing

       Next, appellant complains about the trial court denying him an in-camera hearing

under Rule 412 of the Texas Rules of Evidence so that he could delve into the youth’s

sexual experience. We overrule the issue.

       Assuming that the evidence of the child’s sexual experience was admissible,

appellant did not satisfy the prerequisites for having a hearing under that rule. The latter

states that an in-camera hearing may be held when effort is being made to develop specific

instances of prior sexual conduct. TEX . R. EVID . 412(c). At trial, though, appellant’s

counsel informed the court that “I don’t want to prove any specifics, Judge, just that the

family knew she was sexually active, not specifics of [how] many, who, whatever.” Not

wanting to develop specifics, appellant failed to trigger the need for the hearing.

       Issue 3 - Expert Testimony

       In his third issue, appellant complains of the trial court’s decision to overrule his

objection to certain testimony by the State’s expert witness. The testimony concerned a

hypothetical posed to a psychologist. He was asked about the meaning of a potential

response by a perpetrator who was told that his victim was pregnant and he was the only

person with whom she had sexual relations. Appellant objected, contending that “[i]t’s

calling for speculation and outside of his area of expertise.” The objection was overruled,

and the witness uttered that the failure to deny the allegation was tantamount to a

confession. We overrule the issue.




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       Appellant asserts before us that the matter was objectionable since it served to

bolster the credibility of the victim or constituted opinion evidence on the truthfulness of the

victim. Neither ground was mentioned at trial, however. Thus, they cannot be used here

to attack the ruling. Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003).

       Issue 4 - Opinion as to Truthfulness

       Appellant’s next issue also relates to an evidentiary matter. He objects to the trial

court’s admission of the following testimony by the complainant’s grandmother:

              Q. And after you had received that information [that the complainant
       was accusing her stepfather of sexual assault] did that end your time there
       at the police station with the child abuse unit, the detectives, or did you stay
       there longer?

               A. No. A little bit longer. And while we were there Tracie and I were
       discussing the situation. And, you know, like I said, if KB [the complainant]
       said it, you know, it has to be true.

According to appellant, the evidence was inadmissible because it constituted opinion

evidence bolstering the truthfulness of the victim. We overrule the issue.

       First, appellant cites no authority supporting his contention. Without same, the issue

is inadequately briefed and, therefore, waived. Cardenas v. State, 30 S.W.3d 384, 393

(Tex. Crim. App. 2000).

       Second, while appellant may have raised the objection in question below, he raised

others as well, namely hearsay. Furthermore, the objection was sustained on grounds of

hearsay. However, other than saying “[t]hat’s not what she said,” the trial court did not

address the ground before us. And, instead of securing a ruling on the objection, counsel

immediately broached his hearsay exception, on which the trial court expressly ruled.

Having received no ruling upon the ground now at issue, it was not preserved for review.

Lusk v. State, 82 S.W.3d 57, 60 (Tex. App.–Amarillo 2002, pet. ref’d).

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          Issue 5 - Leading Question

           Appellant next complains of the trial court’s failure to sustain his objection to a

leading question. We overrule the issue.

          It is within the discretion of the trial court whether to allow leading questions on

direct examination. Wise v. State, 223 S.W.3d 548, 558 (Tex. App.–Amarillo 2007, pet.

ref’d).    To show an abuse of discretion, the defendant must show he was unduly

prejudiced. Id. More importantly, error in allowing leading questions seldom results in

reversible error. Uhl v. State, 479 S.W.2d 55, 57 (Tex. Crim. App. 1972).

          In his brief, appellant merely concluded that he was prejudiced but offered no

explanation illustrating why that was supposedly true. Because of that omission, he did not

meet his burden to prove undue prejudice. Nor do we find any prejudice after reviewing

the record.

          Issue 6 - Sufficiency of the Evidence

          Although appellant indicates that he challenges the sufficiency of the evidence

supporting his conviction, he has failed to provide any briefing on that matter. Because of

that the complaint was waived, and we overrule it. See TEX . R. APP. P. 38.1(h) (stating that

an appellant’s brief must contain a clear and concise argument for the contentions made,

with appropriate citations to authorities and to the record); Coble v. State, 871 S.W.2d 192,

(Tex. Crim. App. 1992) (stating that the failure to present any argument or authority on

appeal waives the complaint).

          The judgment of the trial court is affirmed.



                                                      Brian Quinn
Do not publish.                                       Chief Justice

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