Phillips v. State

Full title: JOYCE PHILLIPS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 31, 2009

No. 05-08-00091-CR (Tex. App. Mar. 31, 2009)

Opinion

No. 05-08-00091-CR

Opinion Filed March 31, 2009. DO NOT PUBLISH TEX. R. APP. P. 47.

On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F07-49574-MK.

Before Chief Justice THOMAS and Justices O'NEILL and LAGARDE.¹

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice LAGARDE.

Appellant Joyce Phillips appeals her eight-year sentence for the offense of deadly conduct with a deadly weapon, once enhanced. She raises four "points of error." Appellant's first point complains of evidentiary error by the trial court and the three remaining points complain about her eight-year sentence of imprisonment. For reasons that follow, we affirm.

Background

Appellant pleaded guilty and judicially confessed to firing three shots at the complainant's vehicle while the unarmed complainant was in the car and fleeing from appellant. Appellant's judicial confession was admitted into evidence, without objection. Both the complainant and appellant testified at an evidentiary hearing before the trial judge. The complainant was a friend of Terry Gray who was, at the time, dating appellant. The complainant heard Gray was at the home of a friend and she went over to the friend's house to see Gray. There were several other people also present. One was characterized by the complainant as "Terry's girlfriend." During the complainant's visit, appellant telephoned Gray. The complainant did not know appellant personally and only knew her as someone Gray was dating. Eventually, appellant came to the door and began screaming and beating on the doors and windows, demanding entry. She threatened to "bust a cap" on those in the house. The people inside were scared. Gray escorted one person outside to her car so she could leave. When Gray returned inside, the complainant called Gray's mother and brother to come deal with appellant in the front yard. When Gray's mother and brother arrived, they spoke to appellant in the yard and then went inside. They told Gray to "take care of it." Gray went outside and took appellant to her car. The complainant then went outside with Gray's mother and brother. Gray's mother went to appellant's car and the complainant and Gray's brother got in the complainant's car to go to the social security office. As the complainant pulled out of the driveway, she noticed appellant was following her. Eventually, at the suggestion of Gray's brother, the complainant pulled over to try to talk to appellant. Appellant asked "Bitch, why didn't you open the door?" The complainant explained it was not her house and that appellant had been disrespectful of the owner of the house. Appellant pointed a gun at the complainant's face. The complainant was scared and quickly drove away. As she did so, she heard three gunshots. She later learned one of the bullets had narrowly missed her head, hitting a spot close to the rear-view mirror of her car. Appellant was indicted for deadly conduct by discharging a firearm, a deadly weapon, at and in the direction of, a vehicle occupied by the complainant. The indictment contained one enhancement paragraph alleging a 1977 conviction for aggravated robbery with a deadly weapon. In late November 2007, appellant pleaded guilty to the deadly conduct charge and true to the allegations in the enhancement paragraph. After accepting appellant's pleas, the trial court reset the case for a later date. In early 2008, the plea proceedings continued. Through the complainant, photographs of the bullet damage to her car were admitted into evidence without objection. Appellant testified in her own behalf. She testified she was concerned about Gray and believed he and others were smoking crack in the house and that is why they would not let her in. Appellant followed the complainant to find out who she was and why "they" had not opened the door for her. Appellant said the gun was not hers and that she did not know it was in the car until it slid out from under the seat when she hit the brakes. Appellant only meant to scare the complainant and force the complainant to talk to her. Appellant admitted her actions could have caused the complainant's death, she expressed remorse, she discussed her prior conviction, and she sought probation with anger management from the trial court. Conflicting evidence was presented about an incident at the courthouse during a lunch break where the State claimed appellant called the complainant a "bitch" and told her to go to hell. Appellant denied making the statement. Following attorneys' arguments to the trial court, defense counsel requested his client be placed on ten years' deferred probation with a psychological evaluation and anger management as conditions of probation; the State requested appellant be imprisoned for ten years. After finding appellant guilty and the allegations in the enhancement paragraph true, the trial court assessed appellant's punishment at eight years' imprisonment and a $1,000 fine.

Appeal

In her first point of error, appellant claims the trial court reversibly erred by overruling her hearsay objection to a statement made by complainant that Gray, who was deceased at the time of trial, said appellant had a gun when appellant was demanding entry into the house. This, of course, occurred before the shooting incident that is the basis of the offense for which appellant was on trial. Appellant claims she was harmed by such statement "because this was the only evidence that appellant possessed a gun prior to the actual offense." The record shows the following exchange between the prosecutor and the complainant during her testimony:

[Prosecutor]: What happened when she [appellant] showed up at the house?

[Complainant]: She was beating on the door, screaming, yelling let me in, beating on the windows, going around the house.

[Prosecutor]: And do you know why they didn't let her in?

[Complainant]: Yes, I do. Because Terry said she had a gun.

[Defense counsel]: Objection, hearsay.

[Complainant]: Okay.

[The Court]: Overruled.

The State responds the trial court did not reversibly err in overruling defense counsel's hearsay objection because the statement was not offered for the truth of the matter asserted. Rather, it was offered as the reason appellant was not let into the house.

Analysis

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Generally, hearsay is not admissible. See Tex. R. Evid. 802. We agree with the State that the statement, in context, is not hearsay. The statement was not offered to prove appellant had a gun, thus, it was not offered for the truth of the matter asserted. In context, it is clear the statement was made to explain why appellant was not allowed entry into the house. Because Gray said appellant had a gun, the people inside did not want to let her in because they felt she was going to cause trouble. As such, it was not hearsay and the trial court properly overruled the hearsay objection. Moreover, there is no evidence in the record the complained-of statement had a substantial and injurious effect on the trial court's assessment of punishment. See Haley v. State, 173 S.W.3d 510, 518 (Tex.Crim.App. 2005) (nonconstitutional error in admitting punishment evidence to be disregarded unless the error affects appellant's substantial rights by having "a substantial and injurious effect or influence" in the assessment of punishment). The offense of deadly conduct, enhanced with one prior felony, carries a prison sentence of two to twenty years. See Tex. Penal Code Ann. §§ 12.33, 12.42(a)(3), 22.05(b), (e) (Vernon 2003 Supp. 2008). Appellant knowingly and admittedly fired three shots at the complainant's fleeing vehicle, narrowly missing her head. Appellant admitted her actions could have killed the complainant. Appellant also had a previous conviction for aggravated robbery with a deadly weapon. Those facts alone justify the trial court's assessment of punishment at imprisonment for eight years and a $1,000 fine. No error is shown. We overrule appellant's first point of error. In the remaining points, appellant claims the trial court assessed cruel and unusual punishment and abused its discretion by sentencing her to confinement, as opposed to probation with treatment as a condition. Appellant contends her trial testimony "evinced a strong desire for rehabilitation, and illustrated that her behaviors during this offense were related to her need for psychiatric treatment and therapy through medication and in the form of anger management classes." Appellant does not claim, nor does the record show, that she objected to the sentence imposed either by way of objection or a motion for new trial. And, although appellant recognizes that the "normative rule" is that one must preserve error below to complain about it on appeal, she contends the trial court's error here rises to the level of constitutional infirmity, thus she is entitled to have it addressed for the first time on appeal. We disagree. Notwithstanding dicta in opinions from some of our sister courts, this court's precedent on these points is well established. Error must be preserved to raise such complaints on appeal. See Tex. R. App. P. 33.1(a); Castenada v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). The complaint made here does not come within the narrow exception to the preservation rule, i.e., a complaint that involves systemic or absolute requirements, or rights that are waiveable only. See Neal v. State, 150 S.W.3d 169, 175 (Tex.Crim.App. 2004). Error not having been preserved, nothing is presented for our review. We overrule appellant's remaining points, and affirm the trial court's judgment.