Opinion
No. 14-06-00346-CR
Memorandum Opinion filed April 19, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 228th District Court Harris County, Texas, Trial Court Cause No. 1042149.
Panel consists of Chief Justice HEDGES and Justices FOWLER and EDELMAN.
MEMORANDUM OPINION
Appellant, Demetric Cleophus Hudson, appeals following his conviction for felony assault on a family member and sentence of fifteen years in prison. In his first four points of error, appellant argues that the trial court erred when it excluded certain evidence. In his fifth point of error, appellant contends that the trial court erred by denying his motion for mistrial after Amanda Johnson, complainant and appellant's former fiancé, testified about extraneous bad acts. In appellant's final point of error, he complains that the trial court denied him his right to a fair trial and due process by permitting the State to present its theory of the case while not allowing him to present his own theory of the case. We affirm.
I. EXCLUSION OF EVIDENCE
In his first three points of error, appellant complains about various evidence excluded by the trial court which he claims was in violation of the Rules of Evidence. At trial, appellant attempted to introduce evidence of (1) violent acts allegedly committed by complainant against appellant and his wife, and (2) evidence of multiple police reports (some of which appellant intended to show were false) that complainant allegedly filed against appellant. We review a trial court's decision to admit or exclude evidence for abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 537 (Tex.Crim.App. 2002). A trial court abuses its discretion if it acts outside the zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). If the trial court's ruling is supported by the record and is correct under any theory of law applicable to the case, we uphold that ruling. Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex.Crim.App. 2005). This is true even when the trial court gives the wrong reasons for its decision. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). Appellant argues that the evidence should have been admitted under TEX. R. EVID. 613(b) to impeach complainant, as a witness, with proof of her bias or interest. Appellant failed to lay the proper predicate that Rule 613(b) mandates. In order to impeach a witness with proof of bias or interest, Rule 613(b) requires that the circumstances supporting such a claim be made known to the witness and that the witness must be given an opportunity to explain or deny such circumstances. TEX. R. EVID. 613(b). This procedure is required before any other evidence regarding the bias or interest is allowed. Id. In this case, appellant first attempted to elicit the evidence through witnesses other than complainant before complainant had even testified.Thus, appellant did not comply with Rule 613(b). As a result, it was not error for the trial court to exclude the evidence per Rule 613(b). See Willingham v. State, 897 S.W.2d 351, 358 (Tex.Crim.App. 1995) ("When a party does not lay the proper predicate for impeaching a witness, it is not error to refuse to allow the admission of such testimony.") (citing to Moore v. State, 652 S.W.2d 411, 413 (Tex.Crim.App. 1983)). Appellant contends that the evidence should also have been admitted pursuant to TEX. R. EVID. 404(b). To be admissible, evidence of other crimes, wrongs, or acts must be relevant apart from indicating mere character conformity. TEX. R. EVID. 404(b). Even if an extraneous offense is relevant apart from character conformity, it may still be excluded if its relevance is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403; Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App. 1991); Brown v. State, 96 S.W.3d 508, 511 (Tex.App.-Austin 2002, no pet.). Questions of relevance should be left largely to the trial court, relying on its own observations and experience. Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App. 1993). Appellant argues that he was offering the evidence to prove complainant's "motive to lie," rather than to show character conformity. Appellant developed this idea more fully at trial in stating:"My whole theory on this case . . . is . . . hell hath no fury like a woman scorned, et cetera, et cetera. All of these incidents go right into Ms. Johnson's [complainant's] frame of mind . . . to show an ongoing continuous course of conduct designed to get this man in prison, to punish him as much as she can because of her hatred of him for dumping her and marrying a different woman."In other words, appellant intended to use the evidence of complainant's violence against appellant and his wife together with complainant's false police reports to show that complainant had a jealousy-motivated vendetta against appellant inspiring her untruthful accusations in this case. Assuming without deciding such evidence is relevant for a purpose other than to show character conformity, its relevance must not be substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403; Montgomery, 810 S.W.2d at 387. We find that any relevance of the evidence of the alleged prior violence and false police reports is substantially outweighed by its danger of unfair prejudice. First, assuming the evidence had any probative value, it was very limited. In addition, the jury was thoroughly exposed to appellant's theory that complainant had a motive to lie. See TEX. R. EVID. 403 (stating that relevant evidence may be excluded if its relevance is outweighed by the danger of "needless presentation of cumulative evidence"). For example, in his closing argument, appellant's trial counsel encapsulates some of the evidence demonstrating complainant's motive to lie:
What motive? Let's talk about motive. What motive does Amanda Johnson [complainant] have to lie about this? Let's talk about motive. What motive does Mr. Willis have to lie about this? Okay. Amanda Johnson's motive. You heard from her. She's heartbroken. She told the worker — HPD worker — social worker that she was still in love with him. Said that she knew she was aware that she was violating a protective order. You've heard how she uses her son as a pawn when she doesn't like what he's doing. How she found out that he proposed to her [appellant's wife]. You heard some garbage about him proposing to her, to Amanda Johnson. . . .
So, what motive does Amanda Johnson — remember I asked you during voir dire what does hell hath no fury like a person scorned? Well, the expression is hell hath no fury like a woman scorned. And we've all seen jealous people before.The probative value of the evidence appellant complains of in his first three points of error is limited when put in the context of the entire trial. Moreover, the relevance of this evidence would necessarily be packaged with the prejudicing effects of complainant's alleged misdeeds. See Mumphrey v. State, 155 S.W.3d 651, 665 (Tex.App.-Texarkana 2005, pet. ref'd) (finding that evidence of the complainant's alleged assaults of the appellant "necessarily [brought] with it collateral matters beyond the purpose stated by trial counsel"). As a result, we find that the trial court, pursuant to the Rules of Evidence, was not outside a zone of reasonable disagreement in excluding the evidence. We overrule appellant's first three points of error. In his fourth point of error, appellant argues that the trial court denied him his rights under the Confrontation Clause of the United States Constitution by refusing to permit the evidence of police reports allegedly filed by complainant against appellant. Appellant has failed to preserve this point of error for review. At trial, appellant never objected to the exclusion of the evidence as a violation of the Confrontation Clause. A defendant's objection that encompasses complaints under both the Texas Rules of Evidence and the Confrontation Clause is not sufficiently specific to preserve error. Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App. 2005) (citing Cantu v. State, 939 S.W.2d 627, 634 (Tex.Crim.App. 1997). Such an objection does not satisfy the party's burden to do "`everything necessary to bring to the judge's attention the evidence, rule or statute in question and its precise and proper application to the evidence in question.'" Id. (citing Martinez v. State, 91 S.W.3d 331, 335-36 (Tex.Crim.App. 2002)). The same rationale applies for the proffer of evidence rather than an objection. Id. One must "`clearly articulate' that the Confrontation Clause demanded admission of the evidence" so that the trial court has an "`opportunity to rule upon' this rationale." Id. (quoting Clark v. State, 881 S.W.2d 682, 694 (Tex.Crim.App. 1994)). At no point in the record did appellant argue that his rights under the Confrontation Clause, or even under the United States Constitution generally, demanded admission of evidence. As a result, appellant has failed to preserve his complaint. TEX. R. APP. P. 33.1; Reyna, 168 S.W.3d at 179; Fox v. State, 175 S.W.3d 475, 484 (Tex.App.-Texarkana 2005, pet. ref'd). We overrule appellant's fourth point of error.
II. DENIAL OF MOTION FOR MISTRIAL
In appellant's fifth point of error, he claims that the trial court erred in denying his motion for mistrial when complainant testified as to extraneous bad acts of appellant. The following transpired during the prosecutor's direct examination of complainant:Q: Okay. Do you remember, have you dated [appellant] all along for five years or have you broken up and gone a couple of months and got back together?
A: We — Mr. Hudson [appellant] actually went into rehab. And when he went into rehab — at that point he had beaten me up to where I got my — my first he [sic] protective order on him. And —
Mr. Carroll: I'd object — object, Your Honor.
The Court: Basis for your objection.
Mr. Carroll: I'd object to matters outside the scope of this record — outside the actual alleged assault on March 16th. It's highly prejudicial. And this witness should have been instructed about not talking about that from the prosecutor.
The Court: Okay. Your objection is sustained.
Mr. Carroll: And, Your Honor, I'm going to ask that you instruct the jury to disregard.
The Court: The jury will disregard that comment.
Mr. Carroll: Defense moves for mistrial.
The Court: That's denied. Let's move along.We review the trial court's denial of a motion for mistrial under an abuse of discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004); Primes v. State, 154 S.W.3d 813, 814 (Tex.App.-Fort Worth 2004, no pet.). A mistrial is the trial court's remedy for improper conduct that is "so prejudicial that expenditure of further time and expense would be wasteful and futile." Hawkins, 135 S.W.3d at 77 (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999)). A witness' inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard. Rojas v. State, 986 S.W.2d 241, 250 (Tex.Crim.App. 1998). An exception exists when the testimony is clearly calculated to inflame the minds of the jury or was of such damning character as to suggest that it would be impossible to reverse the harmful impression from the juror's minds. Id. Appellant contends that complainant's response was calculated to inflame the minds of the jury. Appellant does not develop this contention other than to state "the complainant had demonstrably ill-will against Mr. Hudson [appellant] and wanted him to go to jail for assaulting her." The nature of criminal litigation is such that the complainant will often have ill feelings toward the accused. We cannot conclude based on that fact alone that when a complainant references an extraneous act, they are intending to inflame the jury's minds. We similarly do not find the testimony to be of such damning character as to suggest that it would be impossible to reverse the harm resulting from it. Consequently, we find that the trial court's instruction to disregard cured any error. See Whitaker v. State, 977 S.W.2d 595, 600 (Tex.Crim.App. 1998) (holding the trial court's instruction to disregard cured error when witness testified that the appellant was abusive towards her); Paster v. State, 701 S.W.2d 843, 848 (Tex.Crim.App. 1985) (finding instruction rendered testimony about appellant's alleged involvement in two extraneous murders harmless). The trial court did not abuse its discretion in denying appellant's motion for mistrial. We overrule appellant's fifth issue.