Summary
stating that testimony that a woman had a flat tire and a familiar puncture mark on the tire was not evidence of an extraneous offense when there was no attempt to link the defendant to the act at that time
Summary of this case from Mooring v. StateOpinion
No. 05-02-00115-CR.
Opinion Issued April 7, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the County Criminal Court No. 11, Dallas County, Texas, Trial Court Cause No. MB01-73149-N. Affirmed.
OPINION
A jury convicted appellant Derwin Mosby of the offense of harassment, a Class B misdemeanor. See Tex. Pen. Code Ann. § 42.07(a)(2), (c) (Vernon 2003). The trial court assessed punishment at 120 days' confinement and a $300 fine, but suspended imposition of sentence and placed appellant on community supervision for one year. In two issues, appellant asserts the trial court erred by admitting evidence of extraneous offenses during the guilt/innocence phase of the trial and by denying his requests for a mistrial. We affirm.
Background
The complainant, Tina Mosby ("Tina"), is appellant's ex-wife. They shared custody of their thirteen-year-old son, Marcus. Tina testified that during a telephone conversation with appellant on November 12, 2000, appellant told Tina that he was going to "kill her motherfuckin' ass." The next morning, Tina discovered someone had punctured one of her car's tires. On November 22, 2000, appellant telephoned Tina and again threatened he was going to "kill her motherfuckin' ass." Later that day, Tina discovered someone had punctured another one of her car's tires. It appeared to Tina that the same instrument had been used to puncture both tires. Alarmed and afraid, Tina called the police and reported the phone calls and the punctured tires. A few days later, appellant telephoned Tina late at night and told her he planned to make her life "a living hell." Between November 29, 2000 and December 10, 2000, appellant telephoned Tina numerous times, leaving frightening messages on her voice mail. All of such messages were littered with profanities, expressed appellant's strong distaste for Tina and her family, and contained death threats toward one of Tina's male friends, Donald Whitaker ("Whitaker"). On December 15, 2000, Tina saw appellant outside her residence. She saw him lean down by her car and then saw him "raise up." She then watched appellant puncture a tire on the car belonging to Whitaker. After appellant left, Tina went outside and found one of her tires flat and a flat tire on Whitaker's car. Tina testified the puncture marks she saw on December 15 appeared to be the same kind of marks she had seen previously on her other punctured tires. Tina called 911 and reported what had happened. The following day, Tina drove to work using her spare tire. When she left work, her car had another flat tire with a puncture mark on it similar to the others. After each flat tire incident, Tina had to buy a new tire because the punctured tire could not be repaired. Tina learned from the police she could make a record of appellant's calls using a telephone company tracing system by hanging up and dialing "*57." She testified she used this procedure to make a record of appellant's calls when, in her judgment, appellant was harassing her. Telephone call tracing records admitted into evidence showed that over a period of time from December 29, 2000 through January 2, 2001, forty-seven calls were placed from appellant's residence to Tina, and thirty-six of those calls were made between 10:22 p.m. and 11:44 p.m. on January 1st. Tina also testified that appellant committed other acts of aggression toward her, including an assault when appellant hit her in the face. The State charged appellant with threatening, by telephone, to inflict bodily injury on Tina on or about November 22, 2000. The State introduced evidence of the three telephone threats in which appellant threatened to kill Tina and the four tire-slashing incidents. Appellant testified in his own defense and denied he threatened Tina's life over the telephone. He further denied he punctured her tires. He testified he did not approve of the way Tina's family behaved, and claimed he was pretty upset about that when he left the messages on Tina's voice mail. He testified his repeated phone calls to Tina's home were to check on their son, Marcus. He suggested Marcus may have made some of the phone calls to Tina from his residence.Admitting Evidence of Extraneous Bad Acts
In his first issue, appellant makes several complaints regarding the admission of evidence of extraneous bad acts. This evidence consisted of the tire slashing incidents, appellant's assault of Tina, and the repeated phone calls made to Tina from appellant's house. Appellant contends rule 404(b) of the rules of evidence precluded admission of the evidence because the evidence was not relevant to the issue of his intent. Appellant also complains the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. The State asserts appellant has waived many of his complaints.Waiver
Before trial, the court granted appellant's motion in limine concerning evidence of extraneous bad acts. During trial, the State attempted to offer evidence of an extraneous offense. The trial court then conducted a hearing outside the presence of the jury on the admissibility of the extraneous bad acts. The trial court overruled appellant's objections that the evidence was irrelevant to the issue of intent and was unduly prejudicial. The State contends appellant did not preserve error concerning evidence of the tire slashings on November 12 and 22, asserting the evidence came in before appellant objected. See generally Tex. R. App. P. 33.1(a). We disagree. The evidence describing the November 12 and 22 tire slashings the State points to consisted of Tina's testimony that she had had a flat tire on her car and noticed a familiar puncture mark on the tire. However, no attempt was made at that time to link appellant to the flat tires or puncture marks or to show the flats were the result of criminal mischief. Therefore, Tina's testimony did not constitute evidence of extraneous bad acts under the rules of evidence. See Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim. App. 1993) (extraneous offense evidence must show crime or bad act and that the defendant was connected to it); Laca v. State, 893 S.W.2d 171, 186 (Tex.App.-El Paso 1995, pet. ref'd) (if evidence does not demonstrate offense was committed or that defendant was connected to the offense, evidence does not establish extraneous offense); Conner v. State, 891 S.W.2d 668, 671 (Tex.App.-Houston [1st Dist.] 1994, no pet.) (same). Therefore, it was not yet necessary for appellant to object to the evidence until after further questioning sought testimony linking appellant to the flat tires or showing the flats were the result of deliberate action. This questioning occurred during the hearing outside of the jury's presence. Appellant objected to the evidence at the close of the hearing and was overruled, thus preserving error. See, e.g., Martinez v. State, 17 S.W.3d 677, 686 (Tex.Crim.App. 2000) (defendant complied with rule 33.1 of the rules of appellate procedure by obtaining ruling during hearing outside presence of the jury). Accordingly, we conclude appellant did not waive his objections to the evidence concerning the November 12 and 22 tire slashings. The State next contends appellant failed to object to the report generated by the telephone company documenting calls to Tina from appellant's house and, therefore, did not preserve error. However, the State misreads appellant's complaint. In his brief, appellant complains of the admission of Tina's testimony that appellant called her repeatedly and threatened her, not of the report that purportedly documented the phone calls made from appellant's house to Tina. The record shows appellant did object to Tina's testimony of appellant's extraneous threatening phone calls on the basis they were irrelevant to prove his intent and that the testimony's prejudicial effect outweighed any possible probative value. We conclude appellant preserved his complaint on appeal. The State finally contends appellant did not preserve error concerning his assault of Tina. When Tina began to testify regarding the assault, appellant objected that the State was violating the trial court's ruling on his motion in limine. However, appellant did not object on any other basis. It is well settled that motions in limine do not preserve error for appellate review. Geuder v. State, 76 S.W.3d 133, 136 (Tex.App.-Houston [14th Dist.] 2002, pet. filed). Appellant's failure to object forfeits his complaint on appeal that the trial court erred by admitting evidence that he assaulted Tina. See Lusk v. State, 82 S.W.3d 57, 60 (Tex.App.-Amarillo 2002, pet. ref'd).Rule 404(b)
Appellant complains the evidence concerning the tire slashings and repeated phone calls was not relevant under rule 404(b) of the rules of evidence. The State asserts the evidence was relevant to demonstrate appellant's intent to harass and annoy Tina. Under rule 404(b), evidence of extraneous bad acts introduced solely to show character conformity is inadmissible. Tex. R. Evid. 404(b); Rankin v. State, 974 S.W.2d 707, 718 (Tex.Crim.App. 1996) (op. on reh'g). However, the evidence may be admissible under rule 404(b) if it is introduced for a purpose other than character conformity and has relevance to a "fact of consequence" in the case. Rankin, 974 S.W.2d at 718. Evidence is relevant if it logically serves to make more or less probable an elemental fact. Tex. R. Evid. 401; see also Grider v. State, 69 S.W.3d 681, 687 (Tex.App.-Texarkana 2002, no pet.). Evidence of extraneous bad acts may be admissible to prove intent. Robbins v. State, 88 S.W.3d 256, 259 (Tex.Crim. App. 2002) We review a trial court's decision to admit evidence under an abuse of discretion standard. Id. at 259-60. In this case, the State offered the evidence of the tire slashings and numerous phone calls to show appellant's intent to "harass, annoy, alarm, abuse, torment, or embarrass" Tina through his November 22 phone call. See Tex. Pen. Code Ann. § 42.07(a)(2) (Vernon 2003); Lewis v. State, 88 S.W.3d 383, 387 (Tex.App.-Fort Worth 2002, pet. ref'd). The record shows a correlation between the timing of the threatening phone calls made by appellant to Tina and the tire slashings. Tina saw appellant slash two tires, and these slashings left distinctive marks that were found on all the slashed tires. The tire slashings made Tina alarmed and fearful. Therefore, the tire slashings tended to make it more likely than not that appellant made the November 22 phone call with the requisite culpable intent. The evidence of repeated phone calls also tends to show appellant intended to annoy or harass Tina and that the November 22 phone call was part of that campaign. Therefore, the evidence of tire slashings and repeated phone calls had relevance apart from character conformity to a "fact of consequence" and was admissible under rule 404(b). We conclude the trial court did not abuse its discretion by admitting this evidence under rule 404(b).Rule 403
Appellant also challenges the trial court's decision to admit the evidence of the tire slashings and the repeated phone calls under rule 403 of the rules of evidence, contending the prejudicial effect of the evidence outweighed its probative value. Rule 403 requires the trial court to assess the probative value of the evidence and admit the evidence unless its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; Grider, 69 S.W.3d at 687. In evaluating the trial court's decision to admit evidence under rule 403, we consider whether the ultimate issue was contested, whether the State had convincing evidence to establish the ultimate issue to which the evidence was relevant, the probative value of the evidence, and whether the evidence was of such a nature that a jury instruction to consider the evidence for a limited purpose would not likely have been effective. Grider, 69 S.W.3d at 687-88. Relevant evidence is presumed to be more probative than prejudicial. Graff v. State, 65 S.W.3d 730, 739 (Tex.App.-Waco 2001, pet. ref'd). We will not disturb the trial court's decision absent an abuse of discretion. Id. In this case, the ultimate issue of appellant's intent was hotly contested. The case essentially boiled down to a swearing match between Tina and appellant. Apart from the evidence of extraneous bad acts, the State had little more than Tina's testimony to establish appellant's guilt. The tire slashings and repeated telephone calls were relevant to show appellant's intent to harass Tina. Moreover, the evidence was of such a nature that a jury would have been able to follow an instruction to consider the evidence for only a limited purpose. We cannot conclude the trial court abused its discretion when it overruled appellant's rule 403 objection to the evidence. Accordingly, we resolve appellant's first issue against him.Request For Mistrial
In his second issue, appellant asserts the trial court erred in refusing to grant his requests for a mistrial based on portions of the prosecutor's remarks during closing argument. He specifically argues that a mistrial should have been granted because the court's instructions to the jury to disregard the allegedly improper argument failed to cure the prejudicial effect of the arguments. The complained-of remarks during closing argument were as follows:Ladies and Gentlemen of the jury we must focus on one thing, November 22nd of 2000.
Then we have another phone call that was made. I'm going to make your life a living hell. And when the Defendant said I'm going to make your life a living hell, he wasn't joking because these last two days have been hell for Tina Mosby.
You know during cross-examination defense counsel played this tape but just glazed over certain parts of that tape, certain parts that they didn't want you to hear. They didn't want you to focus on.
But why are we here today, we are here because of the actions of that man on November 22nd because he picked up a phone and he said, I'm going to kill your motherfuckin' ass. That's a threat to kill. That's a serious threat to kill. And that's very frightening when you are hearing that from someone you've known [for] a long time. From someone who won't leave you alone, who always picks up the phone and cells you and says things like that.
You have heard all the evidence in this case and it's clear that the Defendant has harassed Tina Mosby and it's time that he stopped. This is a pattern and it's time that something —In each instance complained of, the court sustained appellant's objections and instructed the jury to disregard. Also, in each instance, the trial court overruled appellant's motion for a mistrial. When the trial court sustains an objection to improper jury argument and instructs the jury to disregard, but denies a defendant's motion for a mistrial, the issue is whether the trial court erred in denying the mistrial. Faulkner v. State, 940 S.W.2d 308, 312 (Tex.App.-Fort Worth 1997, pet. ref'd) (op. on reh'g). The resolution of this issue depends upon whether the court's instruction to disregard cured any prejudicial effect. Id. Generally, an improper argument is cured by an instruction to disregard. Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim. App. 1995). We presume the jury complied with the trial court's instruction to disregard. Westbrook v. State, 29 S.W.3d 103, 116 (Tex.Crim.App. 2000). Only offensive or flagrant error warrants reversal when there has been an instruction to disregard. Id. Even when an argument exceeds the permissible bounds, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Id at 115. A trial court's decision to deny a request for a mistrial is reviewed under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim. App. 1999). Having reviewed the entire record, we conclude that none of the prosecutor's remarks were so extreme, manifestly improper, or violative of a statute so as to deny appellant a fair trial. Nor were there new facts harmful to the accused injected in the trial proceeding. Thus, the trial court did not abuse its discretion in denying appellant's motions for mistrial. Furthermore, in his brief, appellant makes only conclusory statements in support of his contention that the instructions to disregard were not effective in curing any harm caused by the allegedly improper argument. He has not met his burden to rebut the presumption that the jury complied with the trial court's instruction to disregard. We resolve appellant's second issue against him. We affirm the judgment of the trial court.