Opinion
NO. 12-11-00103-CR
07-11-2012
LARRY M. MAYFIELD, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEALS FROM THE 3RD JUDICIAL DISTRICT COURT ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Larry M. Mayfield appeals his conviction for assault on a public servant. In one issue, Appellant argues that the trial court erred in overruling his objection to evidence about an assault that occurred about the same time as the charged assault. We affirm.
BACKGROUND
In August 2005, Appellant was a prison inmate housed in an administrative segregation unit. Due to his complaint of an injury, he was escorted to an adjacent medical facility unit to get an x-ray. The attendants removed Appellant's handcuffs when it was time to take the x-rays. Appellant cooperated with the x-ray procedure. However, once that procedure was completed, Appellant attacked and injured three prison employees during a short, violent melee. The women assaulted were Stephanie Karnes, Dawanda Lacy, and Jeanie Allison. An Anderson County grand jury returned an indictment against Appellant alleging, in individual counts of the indictment, that he had assaulted each woman. Prior to trial, Appellant filed a motion to sever the allegations for trial. The State elected to proceed to trial on the count alleging the assault of Stephanie Karnes.
During the trial, Dawanda Lacy testified that Appellant assaulted her. She testified that she had transported Appellant to the medical section of the prison for an x-ray. As she was escorting Appellant, another correction officer intercepted them and served Appellant with a notice of a disciplinary case. Lacy testified that this angered Appellant. She testified further that after the x-ray was taken, but before she could put the handcuffs back on Appellant, he motioned for her to approach. When she did, Appellant told her, "Sorry about your luck, Ms. Lacy, but you're going to die today." Then Appellant grabbed for Lacy's riot baton. After a brief struggle, Appellant gained control of the baton and hit Lacy in the face with it. She fell back against some bookshelves, bruising her arm. Lacy and a technician were then able to escape to another room.
After this testimony, Appellant's attorney approached the bench and objected to the testimony "proving up the injury." Counsel did not object specifically to the testimony about the assault. She contended, however, that the severance and election by the State to proceed on the count of the indictment related to the assault on Karnes prevented the State from presenting testimony about the injury to Lacy. Appellant's attorney also contended that the testimony about the injury should be excluded under Texas Rule of Evidence 404(b). The court overruled the objection, but gave Appellant's attorney a running objection to further testimony about Lacy's injury. The court also instructed the jury to consider testimony about any other offense only as it related to the charged offense.
Stephanie Karnes testified that she witnessed the conversation between Appellant and Lacy, but that she could not hear what they were talking about. She said that she saw Appellant grab the riot baton and that he hit her with it in the back of the head before she could unholster a pepper spray canister that she had been issued for such situations. She suffered a bleeding laceration to her head, which required five staples to close. Karnes also testified that Appellant took her pepper spray canister during his attack on her.
Jeannie Allison testified that she heard yelling, and saw a guard and an x-ray technician run from the room where the x-rays are taken. They yelled to her that Appellant had "her" in the room, and Allison saw Appellant close the door to the room. Allison called for security. When an officer arrived, she went with him to open the door. As they approached the door, Appellant opened it, holding the can of pepper spray in one hand and the baton in the other. He sprayed Allison in her eyes with the pepper spray. Allison was temporarily disabled by the attack, and she stumbled to an adjacent room. Appellant closed the door. Shortly thereafter, several other officers arrived, and they were able to subdue Appellant.
Appellant offered the jury a different version of events. He testified that Lacy, unprovoked, struck him with her baton. He said that Karnes tried to spray him with pepper spray, but she stepped back and fell, hurting her head. The jury found Appellant guilty as charged. Following a punishment hearing, the trial court assessed a sentence of imprisonment for ninety-nine years. This appeal followed.
ADMISSION OF EXTRANEOUS OFFENSE
Appellant's sole issue on appeal is that the trial court erred in overruling his objection to testimony about an extraneous offense. By contrast, at trial, Appellant objected only to Dawanda Lacy's testifying about the injuries she sustained. Appellant did not object to the testimony about the actual assault, but counsel did phrase the objection in such a way as to equate testimony about the injury as admission of an extraneous offense.
Lacy's testimony was extensive, graphic, and specific. She testified that Appellant mentioned that he had a knife and that he told her she was going to die that day. She testified about their struggle for her baton and how each of them was able to strike the other with the baton. Finally, she told the jury how she and the technician were able to escape the room. After eight pages of testimony about the assault, the State asked Lacy whether she felt pain. She testified that later the day of the assault, she had "a bit of swelling to" her mouth, "but other than that, not much [pain]." The State's attorney then asked for a moment, perhaps to review her notes. The reporter's record includes a note that there was a "pause in the proceedings."
Then Appellant's attorney asked to approach the bench. The attorney stated that she was "objecting to the State putting up an injury with that witness that is an assault that is the count that's been severed." Appellant's attorney clearly specified that her objection was to testimony about the injury, not to "the tussle, a confrontation," to use the words of the objection.
The State contended that the other assaults were part of the same criminal transaction and were allowed by the rules of evidence. The court then gave a limiting instruction to the jury that it could not consider testimony of another offense unless the jury believed Appellant had committed the offense beyond a reasonable doubt and then only for the purposes consistent with Texas Rule of Evidence 404(b). Standard of Review and Applicable Law
Rule of Appellate Procedure 33.1 requires that, to preserve a complaint for appeal, the "complaint [must have been] made to the trial court by a timely request, objection, or motion." TEX. R. APP. P. 33.1(a)(1)(A); see also Layton v. State, 280 S.W.3d 235, 239 (Tex. Crim. App. 2009) (timely and specific objection required to preserve issue for appeal); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. App. 2008) ("[A]lmost all error - even constitutional error - may be forfeited if the appellant failed to object.").
To be a "timely" objection, "the defense must have objected to the evidence, if possible, before it was actually admitted." Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). If this was not possible, the defense must have objected as soon as the objectionable nature of the evidence became apparent and must have moved to strike the evidence, that is, to have it removed from the body of evidence the jury is allowed to consider. Id. The defense must have stated specifically the basis for the objection unless the particular ground was apparent from the context. Id.
The Texas Rules of Evidence establish the parameters of relevance. "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX. R. EVID. 401. Relevant evidence is admissible; evidence that is not relevant is inadmissible. TEX. R. EVID. 402. A trial court's decision regarding the admission of evidence is reviewed under an abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).
Evidence of an extraneous offense is admissible, under certain circumstances, as contextual evidence related to an otherwise relevant transaction or series of events. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). In Wesbrook, the court noted that evidence of three additional killings the same night as the charged offense was "same transaction contextual evidence," and therefore admissible without a limiting instruction. Wetbrook, 29 S.W.3d at 115. The court reasoned that "events do not occur in a vacuum, and the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that it may realistically evaluate the evidence." Id.Application
Appellant contends that the testimony about Lacy's injury was evidence of an extraneous offense, that the event was separate from the assault on Karnes, and that the testimony of the assault on Lacy was introduced "as evidence of Appellant's evil character, to establish a probability of his guilt."
As the trial court recognized, there were legitimate reasons for the admission of evidence about the uncharged assault. Karnes, the victim of the charged assault, testified that Appellant hit her with Lacy's riot baton. Therefore, the question of how the baton went from Lacy's holder, to Appellant's hand, to being used against Karnes, in short order, is contextual evidence relating to the charged assault. If testimony about the attack on Lacy had been excluded from the trial, the jury would have to speculate as to how Appellant obtained the baton. This would result in the omission of information critical to the jury's understanding of the day's events.
Furthermore, Appellant's objection came well after the extensive testimony about Appellant's hitting Lacy. And he objected only to Lacy's description of her injury, not to the testimony about Appellant's hitting her in the face with the baton or other events surrounding the "tussle," as his attorney described it at trial. At the time the trial court was in a position to make a ruling, the only evidence that could have reasonably been excluded was a single sentence by Lacy that her face "had a little bit of swelling to it." This was relevant to the kind of force Appellant used after he obtained the baton. A reasonable jurist might conclude that such evidence lacked sufficient relevance to overcome whatever minor prejudice could accrue to Appellant. However, even error in admitting such evidence would be nonconstitutional error, and we are to disregard nonconstitutional error that "does not affect substantial rights." See TEX. R. APP. P. 44.2(b); Johnson v. State, 967 S.w2d 410, 417 (Tex. Crim. App. 1998). The admission of Lacy's statement regarding a slight swelling of her face, in light of the entire trial, did not affect a substantial right. The contested issue in this case was whether Appellant acted to assault Karnes or if he was simply the victim of a series of attempted assaults by prison guards that left them injured. The addition of evidence about Lacy's injury did not go far to prove the State's case, but it also did not undermine or threaten Appellant's defense. We overrule Appellant's sole issue.
We note that the trial court instructed the jurors that evidence of extraneous offenses could only be used to "determine motive, opportunity, intent, preparation, plan knowledge, identity, or absence of mistake or accident of the defendant and . . . for no other purpose."
DISPOSITION
Having overruled Appellant's issue, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
JUDGMENT
NO. 12-11-00103-CR
LARRY M. MAYFIELD, Appellant
V.
THE STATE OF TEXAS, Appellee
Appeal from the 3rd Judicial District Court
of Anderson County, Texas. (Tr.Ct.No. 28621)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Sam Griffith, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.