Opinion
NO. 14-18-01024-CR
08-27-2020
JAMES EDWIN LONG, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court Galveston County, Texas
Trial Court Cause No. 17-CR-3656
MEMORANDUM OPINION
Appellant James Edwin Long pleaded guilty to first-degree felony aggravated assault with a deadly weapon committed against a member of his household or someone with whom he has or had a dating relationship. See Tex. Penal Code Ann. § 22.02(b)(1). The trial court assessed punishment at imprisonment for 30 years. See id. § 12.32(a). Appellant complains of the trial court's overruling his objection under Texas Rule of Evidence 403 and admitting extraneous-offense evidence during the punishment phase. We affirm.
I. BACKGROUND
On December 24, 2017, appellant attacked complainant J. Canales, his former girlfriend. Appellant punched her several times while she was giving him a ride. He kept beating her even after she pulled over and got out of the car. Appellant finally stopped and fled; Canales called for help. When police responded, they found Canales with a pen sticking out of the side of her neck, close to her jugular vein.
Appellant was indicted for aggravated assault with a deadly weapon against a member of his household or someone with whom he has or had a dating relationship. Appellant pleaded guilty.
During punishment, the State presented appellant's certified judgments for felony burglary of a building and for misdemeanor resisting arrest, driving while intoxicated, and marijuana possession. Appellant stipulated to his prior convictions. The State presented testimony from the responding police officers, the trauma surgeon who removed the pen from Canales, Canales, Canales's son and daughter, and appellant's second ex-wife V. Kelly.
In addition to testifying about the instant assault, Canales stated appellant previously had threatened her multiple times. He was "upset" and "blamed" her after her workplace filed a protective order against him due to "concern about [her] safety with him." Kelly testified that appellant while drunk once "grabbed [her] like a rag doll," "threw [her] against the wall and [she] s[p]lit her head open." Kelly also stated that appellant "demolished" her apartment and rammed her parked car.
Trial counsel objected to the State's calling S. Gastian under Rule 403; the trial court overruled appellant's objection. Gastian described how appellant abused her for approximately seven or eight years, when he was married to her mother. Appellant dangled her from a balcony, force-fed her, withheld food from her, beat her, and burned her with a cigarette. Appellant made Gastian and a male playmate undress and made her touch the little boy's penis. Appellant once angrily broke a coffee table "in half" and shattered a crystal dish. He physically and sexually abused Gastian's mother, as well as tortured and killed their pets.
Appellant denied any sexual or physical abuse during Gastian's childhood. However, despite his guilty plea, appellant claimed he attacked Canales in "self-defense" and that it was a "mutual fight." He also blamed Kelly's gambling and Canales's drug use for his own conduct.
In closing arguments, the State requested nothing less than 40-years imprisonment, and trial counsel requested deferred adjudication or "the very lowest end" of the punishment range. The trial court assessed appellant's punishment at 30-years imprisonment and certified his right to appeal as to punishment only.
II. ANALYSIS
We review a trial court's decision to admit extraneous evidence during the punishment phase for an abuse of discretion. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002) (citing Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)). The trial court's decision will not be overturned unless it falls outside the zone of reasonable disagreement. Powell, 63 S.W.3d at 438.
During the punishment phase, the State may offer evidence as to any matter the trial court deems relevant to sentencing, including evidence of an extraneous offense or bad act that is shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). Evidence is relevant to sentencing if the evidence is "helpful to the [factfinder] in determining the appropriate sentence for a particular defendant in a particular case." Rodriguez v. State, 203 S.W.3d 837, 842 (Tex. Crim. App. 2006).
Although a trial court possesses wide latitude in determining the admissibility of evidence presented at the punishment phase of trial, admitted evidence must satisfy Texas Rule of Evidence 403. See Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). Rule 403 states: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. Evidence is only inadmissible for being unfairly prejudicial if it has an undue tendency to suggest a decision on an improper basis, such as an emotional one. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh'g).
A Rule 403 objection requires that the trial court balance the probative value of the evidence against its potentially prejudicial effect. Id. at 388-90. "In reviewing the trial court's balancing test determination, a reviewing court is to reverse the trial court's judgment 'rarely and only after a clear abuse of discretion.'" Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Montgomery, 810 S.W.2d at 389). "Rule 403 creates a presumption of admissibility of all relevant evidence." Id. (internal quotation marks omitted).
"[A] trial court, when undertaking a Rule 403 analysis, must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract . . . from the main issues, (5) any tendency of the evidence to be given undue weight by a [factfinder] that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted." Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
We first consider appellant's argument that "[t]he trial court erred by not conducting any type of balancing test prior to overruling the objection." Appellant also contends "the record proves" that the trial court did not conduct a proper balancing test because it lacked "necessary information" and knew nothing "about the probative value or the need the State had for such evidence." The State responds that this objection is waived.
To preserve a complaint for appellate review, the complaining party must make a timely objection to the trial court that states the grounds with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context. Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1). The complaining party must let the trial judge know what he wants and why he thinks he is entitled to it and do so clearly enough for the judge to understand and at a time when the trial court is in a position to do something about it. Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014). Although we do not analyze preservation of error in a hyper-technical manner, the error on appeal must comport with the trial objection. Id.
Because appellant did not object that the trial court failed to perform or that it lacked enough information to properly perform the Rule 403 test, we conclude he waived these arguments.
Appellant also argues that Gastian's testimony was "too remote to have probative value." But article 37.07 places no time limit on the testimony of extraneous offenses or bad acts. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). Moreover, questions of remoteness rest in the sole discretion of the trial court; as long as the testimony is not so remote as to have no probative value in indicating present character, objections based upon remoteness go to the weight, not the admissibility, of the testimony. See Nethery v. State, 692 S.W.2d 686, 706 (Tex. Crim. App. 1985); Robles v. State, 830 S.W.2d 779, 784 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd). Gastian's testimony concerning how appellant treated his first ex-wife and stepdaughter was probative of his present character.
Appellant further argues that the trial court should not have allowed Gastian's testimony because the allegations were "unsubstantiated" and "[n]o supporting witness was ever called to corroborate any of the testimony." There is no requirement in article 37.07 that testimony of extraneous offenses or bad acts be substantiated or corroborated. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). Nor does appellant present, and we have not located, any authority holding that article-37.07 testimony requires any corroboration or substantiation.
Texas courts instead consistently have held otherwise in various contexts. See, e.g., Bible v. State, 162 S.W.3d 234, 246-47 (Tex. Crim. App. 2005) (no requirement to corroborate accomplice's testimony about extraneous offense committed by accused when such evidence is brought forth during punishment phase of capital-murder trial); McClure v. State, 269 S.W.3d 114, 117-19 (Tex. App.—Texarkana 2008, no pet.) (trial court did not err by admitting appellant's uncorroborated extrajudicial confession of extraneous offense during punishment and citing cases); Kennedy v. State, 193 S.W.3d 645, 661-62 & n.73 (Tex. App.—Fort Worth 2006, pet. ref'd) (en banc) (trial court did not err by admitting uncorroborated accomplice testimony of extraneous offense during punishment and citing cases).
We hold the trial court, after balancing the rule-403 factors, reasonably could have concluded that the probative value of Gastian's testimony was not substantially outweighed by the danger of unfair prejudice and the other countervailing factors.
Appellant argues the probative value of "unsubstantiated allegations" that are "remote" instead of "recent indicators" is "fairly low." As stated above, there is no requirement that extraneous-offense testimony during punishment be substantiated. Here, the State sought to emphasize appellant's history of "domestic violence": "[T]he thing that makes . . . the Defendant the most dangerous is that he commits his crimes in secret, and he has perfected his craft." Gastian testified not only about appellant's abuse toward her, but also about the abuse he committed against her mother, who was married to appellant at the time. Although Gastian's testimony concerned appellant's conduct decades before the assault against Canales, it tended to reinforce appellant's pattern and practice of mixing anger and violent behavior against women in his household. See Fowler v. State, 126 S.W.3d 307, 311 (Tex. App.—Beaumont 2004, no pet.) (concluding that evidence of prior assaults demonstrated "a pattern of conduct"). The trial court reasonably could have concluded that Gastian's testimony was inherently probative.
Appellant also argues that "[t]he allegations of rape, child abuse, and cruelty to animals do not appear in any of the judgments and sentences introduced by the State." But there is no requirement in article 37.07 that appellant's extraneous bad acts must have been prosecuted and resulted in convictions. Such evidence may be admissible "regardless of whether [the defendant] has previously been charged with or finally convicted of the crime or act." Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1).
Next, appellant contends "the State obviously did not have much need for the evidence because they offered no supporting evidence to these allegations." Again, punishment extraneous-offense testimony need not be corroborated or substantiated. Here, the State's theory essentially was that appellant would have kept committing violent acts against women but for the seriousness of Canales's injuries, and a proper sentence should consider his history of "secret" domestic violence. Canales dated appellant for a little over a year, from 2016 to 2017; during that time, aside from this offense, he only "pushed" her once. Kelly married appellant in 2010 but only was with him a couple of years before they separated. However, appellant lived with Gastian and her mother for at least seven years from the mid-1980s to the early 1990s. Gastian's testimony therefore reflected appellant's character going father back and extending for a longer period than the other witnesses. The trial court reasonably could have concluded that the State had an appreciable need for Gastian's testimony.
Appellant does not explain how Gastian's testimony otherwise would suggest a punishment decision on an improper basis, confuse or distract the trial court, or be given undue weight. Admittedly, certain events about which Gastian testified were especially disturbing. However, the same could be said about much of the punishment evidence, which highlighted appellant's cruel and violent character. See Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (all testimony is "likely be prejudicial to one party or the other"). Gastian delivered her testimony matter of factly, without becoming overly emotional. See Flores v. State, 440 S.W.3d 180, 201 (Tex. App.—Houston [14th Dist.] 2013), judgment vacated on other grounds, 427 S.W.3d 399 (Tex. Crim. App. 2014). In assessing punishment, factfinders are permitted to make "value judgments based on the evidence that they receive." See Rogers, 991 S.W.2d at 266. And the State mentioned Gastian's testimony (in one sentence) in closing only after trial counsel requested that the trial court "completely and totally disregard [her] testimony." See Flores, 440 S.W.3d at 201. The trial court reasonably could have concluded that admitting Gastian's testimony would not improperly suggest a decision, confuse the issues, or be given undue weight.
Appellant also does not explain how Gastian's testimony would consume an inordinate amount of time or repeat evidence already submitted. To the extent Gastian took slightly longer to testify than other witnesses, she covered a longer period of time living in appellant's household. Nor did she repeat prior witnesses' testimony. The trial court also reasonably could have concluded that this counterfactor did not favor exclusion.
Under these circumstances, we conclude that the trial court did not abuse its discretion by overruling appellant's Rule 403 objection and admitting Gastian's testimony. See Gigliobianco, 210 S.W.3d at 642. We overrule appellant's sole issue.
III. CONCLUSION
Accordingly, we affirm the trial court's judgment.
/s/ Charles A. Spain
Justice Panel consists of Justices Christopher, Jewell, and Spain. Do Not Publish — Tex. R. App. P. 47.2(b).