Opinion
No. 05-18-01498-CR
05-13-2020
JEREMY DEMOND WARD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause No. F18-75030-M
MEMORANDUM OPINION
Before Justices Myers, Whitehill, and Pedersen, III
Opinion by Justice Myers
A jury convicted appellant Jeremy Demond Ward of murder. Following appellant's plea of true to the indictment's enhancement paragraph, and after hearing punishment evidence, the jury assessed the punishment at 80 years in prison. In three points of error, appellant challenges the admission of certain autopsy photographs; the admission of gang membership evidence during the punishment phase; and testimony from a State's witness regarding the witness's belief that appellant did not act in self-defense. We affirm.
DISCUSSION
I. Autopsy Photos
In his first point of error, appellant argues it was prejudicial error for the trial court to permit the introduction of certain autopsy photos, State's exhibits 280-336, during the guilt and innocence portion of the trial.
The record shows appellant was dating two women, Zeinorbia "YoYo" Shipp and Mariah Woodard. During the early morning hours of January 7, 2018, at around 4 a.m., the three were (along with other individuals) gathered in the parking lot of a convenience store located at the 4300 block of South Malcolm X Blvd., in south Dallas, Texas.
Shipp and Woodard quarreled. Shipp was "talking mess to" Woodward, and Woodward "was talking mess to her." Woodard started crying and said some "off-the-wall stuff" about her relationship with appellant. According to security camera footage from a security camera pointed towards the parking lot of the store, and witness testimony, appellant grabbed Woodard with two hands around her neck and choked her.
Christopher Malone was standing nearby, outside the store, chatting with someone and drinking a beverage. Malone did not know either of the two women. When he saw appellant choking Woodard, he called out, "Chill, that's a female." Another witness heard him say something like, "[J]ust don't choke the woman." Appellant told Malone to "[m]ind your mother fucking business." Shipp, knowing appellant had a short temper, intervened and tried to defuse the situation. There was a brawl; appellant and Malone traded punches.
Malone fell quickly, and appellant jumped on top of him, continuing to punch him. Shipp, who initially placed herself between the two men, started kicking Malone. Appellant eventually got up and walked off toward one of the nearby parked cars. Malone struggled to his feet and stumbled into a clearing in the parking lot. Appellant returned with a gun and, as shown on the security camera footage, shot Malone repeatedly. Malone was rushed to Baylor Hospital where he was pronounced dead on arrival. The autopsy revealed that Malone had suffered ten gunshot wounds; the cause of death was multiple gunshot wounds.
The indictment against appellant alleged that on or about January 7, 2018, in Dallas County, Texas, he:
[D]id unlawfully then and there intentionally and knowingly cause the death of CHRISTOPHER SCOTT MALONE, an individual, hereinafter called deceased, by SHOOTING DECEASED WITH A FIREARM, a deadly weapon,The indictment included an enhancement paragraph alleging that appellant had a prior felony conviction for aggravated assault with a deadly weapon.
And further did unlawfully then and there intend to cause serious bodily injury to CHRISTOPHER SCOTT MALONE, hereinafter called deceased, and did then and there commit an act clearly dangerous to human life, to-wit: by SHOOTING DECEASED WITH A FIREARM, a deadly weapon, and did thereby cause the death of CHRISTOPHER SCOTT MALONE, an individual[.]
A deputy chief medical examiner, Dr. Reade Quinton, testified at trial regarding the results of Malone's autopsy. The State offered the autopsy photos "for all purposes" as "State's [exhibits] 257 through 336." During the bench conference that followed, the State clarified that it was "not going to publish all of them." Defense counsel objected:
Well, for purposes of you admitting them for all purposes, I am going to object to the prejudicial effect outweighs the probative value, since the death has already been established. And, therefore, these would be prejudicial purposes is my argument, photos of the dead guy.The trial court asked counsel if he was objecting to "specific photos or the entirety?" The record then reads as follows:
[DEFENSE COUNSEL]: Basically the entirety of the photos of his body. That there is not any dispute and there is not contest [sic] that he is dead.Defense counsel also objected that the photos were irrelevant and cumulative, and the trial court likewise overruled these objections, citing the same rationale, i.e., the photos would "aid the witness [to] testify about the autopsy." Counsel obtained a running objection. After the bench conference ended, defense counsel sought to clarify whether all the exhibits were admitted, and the trial court replied, "They are. State's 257 through 336." The State then offered, and the court admitted, the autopsy report, State's exhibit 256.
THE COURT: Any response?
[STATE]: These photos are required so they can understand his medical testimony and so the jury can be aided by what injuries sustained. They are not gruesome or in that he knows they would inflame the passion of the jury so they would no longer consider the actual weight of the evidence in and find the defendant guilty. These are not burned photos. Actually there are no actual photos that I plan on publishing. They are not overly gruesome and inflammatory. And I don't believe that would rise to a sufficient level that would be more prejudicial than probative.
THE COURT: You are not going to display all of these to the jury.
[STATE]: That is correct.
THE COURT: The ones that you are going to display, I am asking why are you introducing all of them if you are not.
[STATE]: I have on a number of occasion [sic] where a jury wanted to see more than what I have determined. So I give them everything if they want to go back and view the autopsy photos. Same thing with the crime scene photos, I only displayed about 50, but there were 250. If the Court want an opportunity to review them, I don't believe there are any that would rise to the sufficient level of prejudicial that would prevent the defendant from receiving a fair trial. They are not inflammatory or gruesome. In most traditional cases and with the crime law, I don't think they rise to the level that has been provided by the defense.
THE COURT: I will overrule the objection. In the sense that they aid the witness to testify as to [sic] he conducted the autopsy.
Overruled.
Of the autopsy photos, the prosecutor identified State's exhibits 257-259, 261-63, and 267-69 as he provided them to the medical examiner for his use when testifying. The medical examiner used some of the photos (State's exhibits 258-59, 261-63, and 267-69) during his testimony. The medical examiner used State's exhibit 258, for example, a wide-angle view of Malone's body, to show the basis for the gunshot wound locations he had marked on the autopsy diagram. He used the autopsy diagram, rather than the photo, to show how he could determine the "directionality" of the projectiles from the entry and exit wound locations. The medical examiner also used the diagram to explain which of Malone's organs each bullet struck as it traveled through his body, and which of those trajectories resulted in catastrophic injuries.
The medical examiner returned to the photos when discussing two clusters of gunshot wounds on the diagram, using the photos to better distinguish entry from exit wounds and explain the trajectories. The first was a cluster marked on Malone's abdomen in the diagram and depicted photographically by State's exhibits 261-63. In discussing a cluster of injuries marked on Malone's right arm in the diagram, the medical examiner referred to State's exhibits 267, 268, and 269, photos of Malone's arm. The medical examiner explained that the front/back nature of the autopsy diagram made distinguishing entry and exit wounds "a little confusing," but he used the autopsy photos of Malone's arm to show there were separate entry and exit wounds from the bullets passing through. The medical examiner further testified that Malone tested negative for alcohol but tested positive for methamphetamine, yet "the cause of his death was gunshot wounds and the manner of death was homicide." State's exhibits 280-336, although admitted into evidence, were not (according to the record before us) published to the jury.
The State argues that appellant's trial objection did not preserve the argument he makes on appeal because he did not lodge a specific objection to any particular autopsy photograph; he argued only that no autopsy photos were admissible at all. The State also argues that the appellate complaint does not comport with the blanket objection made at trial. In addition, the State argues the photos were relevant under rule 401 and they carried no substantial danger of unfair prejudice under rule 403.
Assuming, without deciding the issue, that error was preserved, rule 401 provides that evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence. TEX. R. EVID. 401. "Generally, all relevant evidence is admissible." Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009); TEX. R. EVID. 402. When determining whether evidence is relevant, it is important for courts to examine the purpose for which the evidence is being introduced. Layton, 280 S.W.3d at 240. "It is critical that there is a direct or logical connection between the actual evidence and the proposition sought to be proved." Id.
Rule 403 provides that a "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." See TEX. R. EVID. 403; Gonzalez v. State, 544 S.W.3d 363, 372 (Tex. Crim. App. 2018). "The probative force of evidence refers to how strongly it serves to make the existence of a fact of consequence more or less probable." Id.
Relevant evidence is presumed to be more probative than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Evidence is unfairly prejudicial if it has the capacity to lure the factfinder into declaring guilt on a ground other than proof specific to the offense charged. Manning v. State, 114 S.W.3d 922, 928 (Tex. Crim. App. 2003). The trial judge has substantial discretion in balancing probative value and unfair prejudice. See Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006).
A proper rule 403 analysis includes, but is not limited to, four factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. See Henley v. State, 493 S.W.3d 77, 102 (Tex. Crim. App. 2016). Also, under a proper rule 403 analysis, we consider whether there is any tendency of the evidence to confuse or distract the jury from the main issues as well as any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence. See id. (discussing Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006)).
In deciding whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice, we may consider many factors. Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009). These factors include "the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black-and-white, whether they are close-up, whether the body depicted is clothed or naked, the availability of other means of proof, and other circumstances unique to the individual case." Id. "The admissibility of photographs over an objection is within the sound discretion of the trial judge." Id. "Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself." Id. Even so, however, "[c]hanges rendered by the autopsy process are of minor significance if the disturbing nature of the photograph is primarily due to the injuries caused by the appellant." Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002). Moreover, autopsy photographs of gunshot wounds, including close-ups of the bullet wounds, even if gruesome, are admissible to assist the medical examiner in explaining the injuries and rebutting a self-defense theory. See Williams, 301 S.W.3d at 694.
The photographs in question, State's exhibits 280-336, are all color photos of Malone's face, his body, and gunshot entry or exit wounds. All of them appear to be from what Dr. Quinton called the first part of the autopsy, or the "external examination." The victim is lying unclothed on the examination table. The photos do not show any opened body cavities, peeled back skin, or mutilation of the body caused by the autopsy itself. Many of the photos (State's exhibits 282, 285, 292-326, 328-335) document various external injuries, i.e., the gunshot wounds on the victim. Other photos are close-up shots of Malone's face, chest, or limbs. These photos (State's exhibits 280-81, 283-84, 287, 327, 336) show the tattoos on Malone's face and body. This was another aspect of the intake process as described by Dr. Quinton—documentation of any identifying marks on the body. Still other photos (State's exhibits 286 and 290-291) are wide-angle, overview shots of the victim's nude body as it looked when it was brought to the examiner. State's exhibit 286 shows a lower-half overview of Malone's nude body, with exposed genitalia. State's exhibits 290-91 similarly show Malone's body as it was received by the medical examiner. The body is nude, the genitals are visible, and one can see various items used by medical personnel such as bags over the hands and feet, an IV line attached to the left arm, a resuscitation tube, and a bag that contained Malone's clothes. State's exhibits 287 and 288 depict bruising to Malone's eye or temple area and face, but no apparent gunshot wounds are shown. State's exhibit 289 is a shot of Malone's open mouth that shows a missing front tooth.
Appellant argues that all the photographs included in his point of error are irrelevant and prejudicial, and that all of them are cumulative because the State used other photos and did not refer to the challenged photos when it examined Dr. Quinton. Furthermore, appellant argues that some of the photos discussed above have no relevance at all, i.e., State's exhibit 286, exhibits 287-289, and 290-291. Appellant also argues that State's exhibits 292-336 "basically show wounds that had been described in photographs that Appellant is not objecting to on appeal," e.g., State's exhibits 258, 259, 261, 262, 263, 267, 268 and 269.
The State does not dispute that exhibits 292-336 depict the same external wounds that are shown in other (admitted) photographs whose admissibility is not challenged on appeal. But it points out that more photos of the same relevant (and undisputed) content should not automatically render exhibits 229-336 irrelevant. It also argues, referring to exhibit 286, that the exposed genitalia visible in the photograph do not render an otherwise relevant photo irrelevant, and it points out that a gunshot wound to Malone's right forearm can be seen in the photo. The lower portion of Malone's nude body that is visible in the photo merely shows what it looked like during the autopsy. No mutilation of the body from the autopsy itself can be seen in the photo. And like exhibit 286, exhibits 290-91 merely show what Malone's body looked like when it was received by the medical examiner. State's exhibits 287-288 show the face of the deceased but no apparent external wounds, yet they also show bruising to the eye and temple area, and the evidence showed that a physical confrontation between Malone and appellant preceded the shooting. As for exhibit 289, a photo of Malone's face that shows a missing front tooth, an initial intake photo of Malone's face that likewise shows a missing front tooth was admitted as State's exhibit 257, and its admission is not challenged on appeal.
Appellant argues the autopsy photos were "prejudicial," but he does not explain how or why they carried a substantial danger of unfair prejudice. See, e.g., Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012) ("All evidence is prejudicial to one party or the other—it is only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value that Rule 403 is applicable."). Most of the photos simply show the injuries appellant inflicted on Malone when he shot him ten times, or during the confrontation that preceded the shooting—something that aided the State in proving appellant murdered Malone and that the shooting was not justified by self-defense. Moreover, the jury was equipped to evaluate the probative force of the photos, rather than give the nudity, medical gear and equipment, or the tattoos undue weight. See, e.g., Gigliobianco, 210 S.W.3d at 642. The medical examiner testified that he received Malone's body with evidence of medical treatment. The autopsy report (its admission is unchallenged on appeal) documented the evidence of medical treatment on the victim and stated that the victim's clothing had been removed. It is unlikely the jury failed to understand that the medical gear or equipment visible in the photos was part of the medical treatment administered prior to the victim's death, nor is it likely the jury found the medical equipment or nudity more disturbing than the numerous bullet entry and/or exit wounds on the victim's body. These are bullet wounds that, as appellant acknowledges, are documented by other photographs whose admissibility is not challenged on appeal. Additionally, appellant does not argue, and the record does not show, that the complained-of photos were ever published to the jury. Indeed, appellant points to the fact the prosecutor did not use them to show they were cumulative. Rule 403, however, does not apply to all cumulative evidence—only needlessly presented cumulative evidence. See TEX. R. EVID. 403. The trial court admitted the photos knowing the State did not intend to present all of them, and that is what the record shows. We conclude that to the extent appellant objected in the trial court on the grounds he now asserts, the trial court did not err in overruling the rule 401 and rule 403 objections.
Furthermore, even if we assume the trial court erred, by relying on rules 401 and 403 appellant argues non-constitutional error, and we disregard non-constitutional errors that do not affect appellant's substantial rights. TEX. R. APP. P. 44.2(b); Chaddock v. State, 203 S.W.3d 916, 928 (Tex. App.—Dallas 2006, no pet.). We do not reverse for a non-constitutional error if, after examining the record as a whole, we are fairly assured the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Chaddock, 203 S.W.3d at 928. When determining the harm flowing from erroneously overruling a rule 403 objection, we consider the existence and strength of other evidence, the emphasis given to the erroneously admitted evidence, and any limiting instructions. Id.
The record in this case does not show the jury ever reviewed the photos. In fact, the jury sent out a note asking if it could "receive" appellant's "criminal history," which had been admitted as State's exhibits 348-51 and exhibit 410, and another note asking if the victim's family would get any portion of a fine assessed, "even if it is never paid," but there are no notes requesting any unpublished autopsy photos. See Gutierrez v. State, 585 S.W.3d 599, 616-18 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (admission of thousands of images of bestiality pornography harmless where State did not emphasize the bestiality pornography, the testimony about it was brief, it was not published to the jury, the nature of the other evidence of guilt was significant, and jury instructions limited jury's consideration of the evidence to the permissible uses); Martin v. State, 67 S.W.3d 340, 346 (Tex. App.—Texarkana 2001, pet. ref'd) (error, if any, from trial court's refusal to give instruction regarding whether confidential informant trespassed while videotaping defendant's residence harmless in prosecution for possession of methamphetamine; although videotape was mentioned, it was not shown to the jury). After reviewing the record as a whole, including the other evidence of guilt, we therefore conclude that any error in admitting the complained-of photos was harmless. We overrule appellant's first point.
II. Gang Membership
In his second point, appellant contends it was prejudicial error for the trial court to permit the introduction of evidence of his gang affiliation during the punishment phase.
During the punishment phase of the trial, the State offered evidence of appellant's affiliation with a criminal street gang, "44OG," or "44 Oakland Gangster," a reference to a block number and the former name (Oakland Avenue) of the street where the shooting occurred, Malcolm X Blvd. The trial court held a hearing outside the jury's presence to determine the admissibility of a Dallas Police Department gang unit detective's testimony. At that hearing, the gang unit detective, Paul Inman, testified regarding appellant's affiliation with 44OG, whose territory includes the block where the shooting occurred. Appellant had self-identified to law enforcement as a 44OG member since 2006, and he had been in the gang since he was "jumped in" at around the age of ten. According to Inman's testimony in front of the jury, being "jumped in" involved the following:
A person is put in a circle and his fellow gang members want to make sure that he is worthy, tough enough to be in a gang. So for a certain amount of time he has to fight them off. So he gets in the middle and they start fighting and, you know, jumped in and multiple people will attack him simultaneously for a certain amount of seconds.The detective explained during the hearing that 44OG was known for "all types of offenses," including robberies, assaults, aggravated assaults, murders, and selling drugs. The detective gave a detailed history of 44OG, from its formation to a turf war between 44OG and another gang, Park Row, that occurred about a year before the trial. The detective testified that appellant's criminal history of selling drugs, aggravated assault, and (now) murder was consistent with his identity as a member of 44OG. The record also includes a photograph of appellant displaying the hand sign "44," which is associated with 44OG.
After hearing the proposed testimony, the defense objected to any testimony regarding the specific acts of other gang members, arguing that what other members of the gang did was not relevant to appellant. In addition to the logical relevance objection, defense counsel asked the trial court to weigh the probative value and the prejudicial effect of any specific-acts gang evidence, arguing the prejudicial effects of such testimony substantially outweighed the probative value. Defense counsel summarized his objection as follows:
So, Judge, allowing a detective to come in and talk about a particular gang, talk about Mr. Ward being a member of that gang, it is one thing to allow testimony that he is a member of a gang. It is another thing to say, here is what other members of that gang have done or here is what people around the 4400 block of Malcolm X have done or here is what people in South Dallas do.The State cited appellant's gang tattoos, his criminal history, his history of identifying himself to law enforcement as a member of 44OG, and his association with other individuals that had committed criminal acts, arguing the evidence was "clearly relevant" and that the known criminal activities of 44OG corresponded "with the criminal history and the criminal activities of appellant." The trial court overruled the defense's objection as to the types of offenses the gang was known for, but sustained the objection in part, instructing the detective not to go into any "specific acts" of the gang unless they involved appellant.
So, Judge, both on the issue of relevance and on the issue of the prejudicial effect outweighing, substantially outweighing the probative value, we are objecting.
In front of the jury, the detective gave a more succinct history of 44OG before moving on to appellant's affiliation with the gang. The detective testified that appellant has various gang-related tattoos, including a red "44" in large numbers on the front of his neck, five-pointed stars on his chest, and "money bag" tattoos. The detective mentioned the sale of narcotics, assault, and aggravated assault as the types of crimes 44OG members had been involved in. The State offered (and the court admitted) State's exhibits 348 and 349, certified copies of appellant's five prior judgments of conviction for felony offenses, i.e., two drug offenses, family-violence assault (impeding breath/circulation), aggravated assault with a deadly weapon, and forgery. In addition, the State offered exhibits 350, 351, and 410, the judgments from appellant's three prior misdemeanor convictions. The jury assessed appellant's punishment at 80 years in prison.
We review trial court decisions admitting or excluding evidence for an abuse of discretion, and under this standard the trial court's decision admitting or excluding evidence will be upheld so long as it is within the "zone of reasonable disagreement." Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018).
Deciding what punishment to assess is a "normative process" that is "not intrinsically factbound." Id. The code of criminal procedure provides in part that at the punishment stage, both parties may offer evidence:
[A]s to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1).
Within the limits imposed either by the Legislature or the Constitution, trial courts have "wide discretion to deem virtually any matter relevant to a proper sentence." Beham, 559 S.W.3d at 480. "[E]vidence that the defendant is an active member of a gang that regularly engages in criminal activities . . . is almost always relevant for sentencing purposes." Id. at 479. "The normative impact of this kind of evidence comes not in the form of the arbitrary label the gang attaches to itself, but rather in the kinds of gang-related activities the defendant thinks worthy of praise and emulation." Id. at 482. Evidence of gang membership, combined with the knowledge that the gang is often engaged in violent and felonious conduct, "makes the normative impact of this evidence incrementally greater," which is "enough to satisfy the relevance standard." Id. at 481. Moreover, "[t]o meet the threshold requirement of relevance, evidence need only have a tendency to make the ultimate fact more or less likely than it would be without; it need not prove the point by itself." Id. at 482 (trial court did not abuse its discretion in considering evidence that the defendant held himself out as a gang member "to be normatively relevant as character evidence.").
Appellant's criminal history matched the sort of criminal activities the 44OG gang was known for, and he was a well-documented and established member of that gang. Appellant had prior convictions for selling narcotics, assault, and aggravated assault, among other offenses. The gang evidence showed these were not just past errors, but the activities of a gang he had openly associated with for years. Appellant's gang membership, combined with evidence the gang was a known criminal organization, also made it less likely appellant had any intention of altering his behavior. We conclude the trial court did not abuse its discretion in determining the 44OG-related evidence was relevant to appellant's sentencing.
In addition, if we assume the trial court erred, appellant argues his gang-evidence point as non-constitutional error, and non-constitutional error must be disregarded unless the record shows it affected the defendant's substantial rights. TEX. R. APP. P. 44.2(b). The admission of evidence regarding appellant's 44OG membership was harmless given appellant's lengthy criminal history. Appellant had been convicted of selling narcotics, assault, and aggravated assault, among other offenses. To show harm, appellant cites the following portion of the State's closing argument at punishment: "And so when you convicted him of murder, in just 15 minutes, you only knew him as Jeremy Ward. But now you know that he is the 44 OG, five[-]time convicted felon, gun[-]toting, woman[-]beating, and now convicted murder. That's who he is." Appellant argues there is "no doubt the State used the gang evidence to seek an enhanced sentence," and he points out that he "did not receive a minimum sentence." But setting aside the gang-related evidence, appellant had a lengthy criminal history and he was, as the State noted in its closing argument, a five-time convicted felon. The fact he had been "jumped" into a gang at around the age of ten offered, if anything, a possible mitigating factor for the jury to consider. We conclude the trial court did not err in admitting the disputed evidence and that, alternatively, the record contains a fair assurance the admission of the gang-related evidence did not affect appellant's substantial rights. We overrule his second point.
III. Fundamental Error
In his third point of error, appellant argues the trial court committed fundamental error when it permitted a State's witness to testify that she did not believe appellant's statement that he acted in self-defense.
The witness, Detective Estell Montenegro of the Dallas Police Department, testified during the guilt-innocence portion of the trial as follows:
Q. [STATE:] And during the course of your interview with Mr. Ward, did you believe that he was honest and forthcoming with information as it related to the offense that had taken place?
A. [MONTENEGRO:] There was some honesty, there was some inconsistencies.
Q. And that was based on your observation of the video prior to your interview with Mr. Ward?
A. That is correct.The defense did not object to this testimony.
Appellant admits there was no trial objection to the detective's testimony, but he contends the detective opining that appellant was not telling the truth "was not admissible for any reason," and that this error affected an "absolute" or "waivable-only" right that need not have been preserved via an objection in the trial court.
As we have noted before, however, the Texas Court of Criminal Appeals has explained that rights not requiring an objection are a "narrow exception" to the general rule that error must be preserved. See Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014); Williams v. State, No. 05-18-00760-CR, 2019 WL 5119043, at *4 (Tex. App.—Dallas Oct. 7, 2019, pet. ref'd.) (mem. op., not designated for publication). Indeed, the court of criminal appeals has "consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence." Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); see also Williams, 2019 WL 5119043, at *4.
In this case, appellant does not adequately explain why his complaint was not forfeitable. And after reviewing the complaint and the record, we see no reason why it should not have required an objection to preserve error. See, e.g., Proenza v. State, 541 S.W.3d 786, 797 (Tex. Crim. App. 2017) (the trial court has no duty to exclude hearsay evidence absent an objection and "would probably fall into error" if it did); Fuller, 253 S.W.3d at 232 (in a capital murder trial, complaints about State's expert's qualifications and scientific reliability of his testimony were forfeited for failure to object); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) ("That the State refrain from introducing evidence that violates the defendant's rights under the Equal Protection Clause is neither an absolute, systemic requirement nor a right that is waivable only."). We conclude appellant's complaint was not preserved for appellate review, and we overrule his third point of error.
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
181498F.U05
JUDGMENT
On Appeal from the 194th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F18-75030-M.
Opinion delivered by Justice Myers. Justices Whitehill and Pedersen, III participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 13th day of May, 2020.