Opinion
02-23-00290-CR
08-29-2024
Mark Vernon Hawthorne, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 271st District Court Wise County, Texas Trial Court No. CR21639
Before Bassel, Wallach, and Walker, JJ.
MEMORANDUM OPINION
Dabney Bassel Justice
I. Introduction
A grand jury charged Appellant Mark Vernon Hawthorne with aggravated assault with a deadly weapon against a person with whom he had previously had a dating relationship; Hawthorne pleaded guilty without a plea bargain, and the trial court found him guilty and sentenced him to forty-two years' confinement. See Tex. Penal Code Ann. § 22.02(b)(1). In two points, Hawthorne argues that the trial court abused its discretion by admitting (1) statements that allegedly violated the attorney- client privilege and (2) a photograph whose probative value was substantially outweighed by its unfair prejudice. Because Hawthorne failed to preserve his complaints, we affirm.
II. Brief Factual Background
The victim testified that she had met Hawthorne on a dating website. At the time, he was living with his parents in Rhome, and she was living in North Richland Hills. During their three-week relationship, Hawthorne started spending the night at the victim's house. The victim, who had prescriptions for Adderall, Oxycodone, and Cymbalta, lost trust in Hawthorne when she noticed that some of her pills were missing. She confronted him about the missing pills and told him that she wanted him out of her house. He called his parents to come pick him up, but the victim decided that instead of waiting on them, she would drive him to his parents' home.
On the drive, they did not talk much; instead, Hawthorne mainly looked at his phone, which the victim had purchased for him two days earlier. After she pulled into Hawthorne's parents' driveway, the victim told Hawthorne that she wanted the phone. Hawthorne reached for something on the floorboard and then reached his arms over the victim's head; she felt something like punches on the back of her neck. The victim passed out. When she woke up, she saw blood on the vehicle's control knobs, and Hawthorne was crying and telling her that he loved her. She told him to get help for her, but he started stabbing her in the back of her neck again.
The victim was eventually flown by helicopter to the hospital and spent several weeks recovering at the hospital, a rehabilitation hospital, and a skilled nursing facility. While she was at the hospital, she learned from her mother and sister that she had been stabbed, not punched, all over her body-upper right thigh, left side, colon, right breast, both shoulders, lower back, back of the head, and back of the neck, as well as cuts on her wrist. At the time of the trial, which occurred four years after the incident, the victim had regained the ability to walk but was not able to live independently.
The cut at the back of her neck went halfway through her spinal cord, paralyzing her from the neck down.
After hearing additional testimony, the trial court found Hawthorne guilty of aggravated assault with a deadly weapon as charged in the indictment and sentenced him to forty-two years' confinement. Hawthorne then perfected this appeal.
At the outset of the trial, the trial court noted that there was "an agreement in the case where there would be an open plea to the [trial c]ourt with a deadly weapon finding." After admonishing Hawthorne, the trial court accepted his guilty plea.
III. Preservation
In his two points, Hawthorne challenges the trial court's admission of (1) his prior attorney's testimony about his fee agreement and (2) a photograph of the victim's wounds. We discuss each of these in turn, explaining how Hawthorne failed to preserve such complaints.
A. Standard of Review
Preservation of error is a systemic requirement on appeal. Blackshear v. State, 385 S.W.3d 589, 590 (Tex. Crim. App. 2012); Boston v. State, 373 S.W.3d 832, 841 (Tex. App.-Austin 2012), aff'd, 410 S.W.3d 321 (Tex. Crim. App. 2013); see Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014). A reviewing court should not address the merits of a complaint that has not been preserved for appeal. Blackshear, 385 S.W.3d at 591; Ford v. State, 305 S.W.3d 530, 532-33 (Tex. Crim. App. 2009); Boston, 373 S.W.3d at 841.
To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion sufficiently stating the specific grounds, if not apparent from the context, for the desired ruling. Tex.R.App.P. 33.1(a)(1); Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). Generally, a party must object each time the objectionable evidence is offered unless the defendant obtains a running objection. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991). Further, the party must obtain an express or implicit adverse trial-court ruling or object to the trial court's refusal to rule. Tex.R.App.P. 33.1(a)(2); Dixon v. State, 595 S.W.3d 216, 223 (Tex. Crim. App. 2020).
Moreover, the complaint made on appeal must comport with the complaint made in the trial court, or the error is forfeited. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009) ("A complaint will not be preserved if the legal basis of the complaint raised on appeal varies from the complaint made at trial."); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) ("Whether a party's particular complaint is preserved depends on whether the complaint on appeal comports with the complaint made at trial."). To determine whether the complaint on appeal conforms to that made at trial, we consider the context in which the complaint was made and the parties' shared understanding at that time. Clark, 365 S.W.3d at 339; Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009); Pena, 285 S.W.3d at 464.
B. Untimely Attorney-Client Privilege Objection
In his first point, Hawthorne argues that the trial court abused its discretion by "admitting statements to an attorney that violated [his] attorney-client privilege." At the crux of Hawthorne's argument is the unique fee agreement that he made with his former attorney Paul Belew in which Belew agreed to write a $250,000 bond and represent Hawthorne in exchange for Hawthorne's signing over his claim to real property in Poolville, Texas. Hawthorne contends that the trial court abused its discretion by admitting Belew's testimony regarding his meeting with Hawthorne to procure the warranty deed based upon Hawthorne's "'agreement' to this as a term of representation." Hawthorne, however, failed to object when Belew was initially asked about the fee agreement.
1. What the Record Shows
During punishment, the prosecutor questioned Belew about how he knew Hawthorne and about how Belew had come to represent Hawthorne:
Q. (BY [PROSECUTOR]) How was it that you became familiar with Mr. Hawthorne?
A. Mr. Hawthorne had a criminal matter, and he wished to engage my services to represent him and to bond him out of jail.
Q. Now, we didn't speak of that before, but in addition to doing legal representation do you act as a bondsman as an attorney?
A. Yes.
Q. And if somebody pays you to bond them out of jail are you also then retained on that case to represent them on a legal matter?
A. Yes, I am.
Q. Back in 2019 -- I believe it was September the 20th of 2019 --did you meet with Mr. Hawthorne relating to hi[s] retaining your services?
A. That date sounds about correct, yes.
Q. And what was -- well, first of all, did he have cash to retain you?
A. No.
Q. Did you and Mr. Hawthorne agree to some alternative arrangement where you would go ahead and bond him out of jail and represent him on his legal matters -- criminal legal matters for something other than cash?
A. Yes, we did.
Q. Can you explain that for the Court, please?
A. Yes. It was my understanding through conversations with Mr. Hawthorne that --
[DEFENSE COUNSEL]: Object to hearsay, Judge, and it violates attorney-client privilege, Rule 503, I think, of the rules of evidence.
THE COURT: I'll sustain that.
. . . .
Q. (BY [PROSECUTOR]) Is the case[] that you were retained for the case that we're here on trial for today?
A. Correct.
Q. So without going into anything he revealed to you regarding the facts of this case, what was the agreement between you and him as far as you[r] representing him?
A. In exchange for writing a $250,000 bond in Wise County, Texas, and for legal representation, he would sign over his 10.133 acres in Poolville, Texas, that was tied up in probate at the time.
Q. So at the time that you made this agreement did you execute some type of binding legal document?
A. Yes, I did.
Q. Was that referred to as agreement for employment?
A. Yes.
Q. And at the time that that document was executed you said that that property was still tied up in probate; is that correct?
A. That is correct.
Q. And so he would -- because of that he would not have been able to execute a general warranty deed to you at the time?
[DEFENSE COUNSEL]: Objection. It's leading and calls for speculation.
THE COURT: Sustained.
Q. (BY [PROSECUTOR]) Can you tell us whether or not he would have been able to execute a binding warranty deed to you at that time because of the probate matter?
A. Through his probate attorney, it would be my understanding at the time, no.
Q. So rather than having him do that, did you agree that that would be done at a point in the future when he came to be the legal owner of that land?
A. That is correct.
Q. And that was part of the agreement that was executed on September 20th, 2019, correct?
A. That is correct.
Q. Now, at some point in the future -- I believe it was June the 21st of 2021 -- so we're jumping forward a couple of -- not quite two years -- two years minus three months essentially -- did you become aware that [Hawthorne] had -- the probate had been settled and he was now, in your mind at least, the owner of that property?
A. Yes.
Q. And did you have a meeting with him where this agreed --earlier -- excuse me, where the warranty deed was actually executed and signed by both you and [Hawthorne]?
[DEFENSE COUNSEL]: Again I'm going to object under Rule 503 of the rules of evidence. It violates the attorney-client privilege.
[PROSECUTOR]: Has nothing to do with the facts of this case, your Honor.
[DEFENSE COUNSEL]: He hired him to represent him on this case, Judge.
THE COURT: I'm gonna sustain it. This -- this is for purposes of punishment --
[PROSECUTOR]: (Overlapping) For punishment, yes.
THE COURT: -- a bad act relating to their representation?
[PROSECUTOR]: That's correct. A felony, yes.
THE COURT: Well, I'm gonna sustain the objection.
Q. (BY [PROSECUTOR]) Did you -- with regard -- were you --did you obtain a warranty deed on the property in question?
[DEFENSE COUNSEL]: Again, it's the same question. I renew my objection.
[PROSECUTOR]: It's nothing about --
THE COURT: I'll overrule that objection.
Q. (BY [PROSECUTOR]) On the date of June 21st, 2021, did you obtain a warranty deed on that property?
A. What date?
Q. I believe it was June the 21st of 2021 that you obtained a warranty deed on that property in question.
A. I believe that's the correct date.
Q. And on the next date[,] was that filed with the Wise County Clerk's office?
[DEFENSE COUNSEL]: Objection to leading again, [Y]our Honor.
THE COURT: Sustained.
Q. (BY [PROSECUTOR]) What was done with that deed the next day?
A. I recorded it at the Wise County Clerk's office.
Q. And as a result of that, did you believe that you were the legal owner of that property?
A. Oh, absolutely.
Q. And did -- were representations made to you by the person that you believed to be the owner of that property that you were now the owner of that property?
A. Absolutely.
Q. And as a result of that did you or somebody else on your behalf begin to do some things -- well, one, were the taxes paid?
A. Yes. [Emphases added.]
Although it is not clear from Hawthorne's brief, it appears that this is the ruling on an alleged attorney-client privilege objection that forms the basis of his complaint. As shown from the text, his counsel's statement-"I renew my objection"-appears to relate back several lines to his prior Rule 503 attorney-client privilege objection. At no point after this did defense counsel object on that basis.
After Belew had paid the taxes and while he was attempting to have the property's fence repaired, he learned that approximately three months prior to when Hawthorne had transferred the property to him, Hawthorne had transferred the property to someone named Estes. Belew then contacted law enforcement. Belew testified that because of that investigation, a warrant was executed for Hawthorne's arrest for perpetrating fraud on Belew, and Belew withdrew from representing Hawthorne in this criminal case.
2. Analysis
As shown in the italicized text, Belew touched on the non-cash fee agreement that he had with Hawthorne before Hawthorne ever made his first Rule 503 objection. Cf. Davis v. State, 329 S.W.3d 798, 823 (Tex. Crim. App. 2010) (holding that the complaint was not preserved because "[d]efense counsel failed to object the first time the prosecutor argued that appellant was a con man who spent four hours on the stand"). When the prosecutor then asked Belew about his understanding of the agreement, Hawthorne objected, and the trial court sustained that objection. But when the prosecutor followed up with a question to Belew about what the fee agreement entailed, Hawthorne did not object, and Belew testified to the specific details of the fee agreement. By failing to request a running objection or to continue to object each time the prosecutor posed a question about the fee agreement, Hawthorne failed to preserve his complaint for our review. See Geuder, 115 S.W.3d at 13; Martinez, 98 S.W.3d at 193.
Alternatively, even if Hawthorne had preserved his complaint, the attorney- client privilege does not encompass such nonconfidential matters as the terms and conditions of an attorney's employment and the purpose for which an attorney has been engaged. See Borden, Inc. v. Valdez, 773 S.W.2d 718, 720-21 (Tex. App.-Corpus Christi-Edinburg 1989, orig. proceeding).
We overrule Hawthorne's first point.
C. No Rule 403 Objection
In his second point, Hawthorne argues that the trial court abused its discretion by admitting "a gruesome, graphic, and cumulative photograph depicting the [victim's] wounds [because] the minimal probity [sic] was substantially outweighed by the unfair prejudice." Specifically, Hawthorne complains about the admission of the photograph in State's Exhibit No. 17 (showing wounds to the back of the victim's neck), claiming that it was the same photograph as State's Exhibit No. 16, that it was cumulative, and that the State did not need it. Hawthorne states that he "timely objected on Texas Rule of Evidence 403 grounds to a repetitive photo of wounds to the back of the victim's neck." Hawthorne's statement is simply not true. Moreover, Hawthorne's Rule 403 complaint on appeal does not comport with his trial objection and thus preserved nothing for our review.
See Standards for Appellate Conduct, Lawyers' Duties to the Court ¶ 3, Texas Rules of Court (State) 320 (West 2024) ("Counsel should not misrepresent, mischaracterize, misquote, or miscite the factual record or legal authorities.") (available at http://www.txcourts.gov/media/1437423/standards-for-appellateconduct.pdf).
1. What the Record Shows
During testimony from a paramedic, the prosecutor stated, "Your Honor, at this time[,] we're also gonna offer State's Exhibit Nos. 14 and 15, which are JPS records previously filed by affidavit, as well as two photographs from the medical records marked as State's Exhibit Nos. 16 and 17." Hawthorne's counsel asked to take the paramedic on voir dire, and the following colloquy ensued:
Q. Did you take any of these pictures?
A. No, sir.
Q. Did you have any contact with [the victim] after you put her on the helicopter?
A. No, sir.
[DEFENSE COUNSEL:] I object that they're not relevant. He's not a competent witness to testify. It's repetitious.
THE COURT: Can I see them?
(Document(s) tendered.)
THE COURT: The objection is overruled --
[DEFENSE COUNSEL:] Thank you, [Y]our Honor.
THE COURT: -- and State's Exhibit Nos. 14, 15, 16, [and] 17 are admitted.
2. Analysis
Here, Hawthorne made a general relevancy objection and also objected to the photograph in State's Exhibit No. 17 as "repetitious." Although Rule 403 provides that the trial court "may exclude relevant evidence if its probative value is substantially outweighed by . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence," Tex. R. Evid. 403, Hawthorne did not alert the trial court that he was objecting on the basis that the photograph's probative value was substantially outweighed by a danger of unfair prejudice. See Couch v. State, No. 12-13-00127-CR, 2014 WL 7174640, at *6 (Tex. App.-Tyler Dec. 17, 2014, no pet.) (mem. op., not designated for publication) ("Defense counsel's sole basis for objecting to the admissibility of the photographs was relevance. Because he failed to make a separate Rule 403 objection, he did not preserve error on this issue."); Jones v. State, No. 02-10-00035-CR, 2011 WL 4916396, at *5 (Tex. App.- Fort Worth Oct. 13, 2011, no pet.) (per curiam) (mem. op., not designated for publication) (same). Moreover, Hawthorne's appellate argument does not comport with his trial objection. See Bekendam, 441 S.W.3d at 300; Clark, 365 S.W.3d at 339; Lovill, 319 S.W.3d at 691-92; Pena, 285 S.W.3d at 464. For these reasons, we conclude that Hawthorne forfeited his Rule 403 complaint.
The test for whether evidence is relevant is found in Rule 401, not Rule 403. See Tex. R. Evid. 401.
Alternatively, even if Hawthorne had preserved his complaint, we have previously stated that "the danger of unfair prejudice under [R]ule 403 is greatly reduced when a judge is sitting as the trier of fact." See Ex parte Twine, 111 S.W.3d 664, 668 (Tex. App.-Fort Worth 2003, pet. ref'd). Thus, Hawthorne has not shown that the trial court abused its discretion by admitting State's Exhibit No. 17.
We overrule Hawthorne's second point.
IV. Conclusion
Having overruled Hawthorne's two points, we affirm the trial court's judgment.