Terry Lee McElroy v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-18-00161-CR
TERRY LEE MCELROY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
TRIAL COURT NO. CR18461
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MEMORANDUM OPINION 1
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A jury convicted Appellant Terry Lee McElroy of continuous sexual abuse
of a child under fourteen years of age. Appellant pleaded true to two prior felony
convictions, and the trial court sentenced him to a mandatory life sentence.
Appellant brings a single issue on appeal, arguing that the trial court reversibly
erred in sustaining the State’s objection to his voir dire question. Because, on
1
See Tex. R. App. P. 47.4.
this record, the trial court committed no reversible error, we affirm the trial court’s
judgment.
In a hearing outside the presence of the jury, styled a hearing on the
State’s motion in limine, Appellant stated his intention to ask the following
question on voir dire:
You have heard evidence that the Defendant has been previously
convicted of a crime. Could you still give him a fair trial and listen to
the evidence presented in this trial and decide the case based upon
the evidence presented in this trial or would the knowledge that he
had had that conviction prevent you from being able to fairly assess
the evidence in this specific case?
The State objected to the question as an improper commitment question
under Standefer v. State. 2 In response to the State’s objection, the following
exchange took place:
[STATE]: . . . [W]e don’t have an objection to instructing the jury that
there has to be evidence to prove this case beyond a reasonable
doubt and that the State must prove their case beyond a reasonable
doubt and you can’t base it only and solely on the fact that he,
meaning the Defendant, has been previously convicted of a bad act
or other sexual offense.
We submitted a proposed instruction to the Court for your
consideration to -- to get to --
THE COURT: Okay. And you have submitted that. And then
you reviewed the State’s proposed instruction. And what is your
objection to the State’s proposed instruction?
[APPELLANT]: I have no objection to the State’s instruction;
however, I don't believe it goes far enough. The legislature --
2
59 S.W.3d 177 (Tex. Crim. App. 2001).
2
THE COURT: Okay. Here’s what I’m going to do. . . .
. . . I have reviewed the instruction asked by the State or
proposed by the State in this particular case. I think that the
instruction proposed by the State, first of all, follows, for the most
part, the statute.
Secondly, it’s very similar to the instruction usually given in the
charge by the Court to the jury, and I’m going to deny your
requested instruction on behalf of the Defendant. And if you would
print that out, obviously, and have that marked by the court reporter
so that it is in the record. And the Court is going to accept the
State’s proposed instruction on this issue and tell the Defendant if it
wishes to, it may use this instruction -- or the State can in voir dire.
In order to preserve a complaint for appellate review, a party must make a
timely objection to the trial court, stating the specific grounds for the ruling he
desires the trial court to make. 3
As our sister court in Houston has explained,
Texas Rule of Appellate Procedure 33.1 sets forth clear
requirements for the preservation of error. It provides: “As a
prerequisite to presenting a complaint for appellate review, the
record must show” that “the complaint was made to the trial court by
a timely request, objection, or motion that stated the grounds for the
ruling that the complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context.” Tex.
R. App. P. 33.1(a)(1)(A) (emphasis added). The record also must
show that the trial court either “ruled on the request, objection, or
motion, either expressly or implicitly” or “refused to rule on the
request, objection, or motion, and the complaining party objected to
the refusal.” Tex. R. App. P. 33.1(a)(2)(A), (B). A complaint must
“be clear enough to provide the judge and the opposing party an
opportunity to address and, if necessary, correct the purported
3
Tex. R. App. P. 33.1(a); King v. State, 953 S.W.2d 266, 268 (Tex. Crim.
App. 1997).
3
error.” Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011)
(citing Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009)). 4
We have examined the record and nowhere during the relevant exchange
does it appear that the lawyers and the judge are all in the same conversation.
Appellant’s counsel states he wants to ask the question before us during voir
dire. The State responds with an objection and shifts the conversation to a
requested jury instruction. The trial judge inquires whether Appellant’s counsel
objects to the State’s requested instruction. He responds that he does not, but
shifts the conversation to his motion to quash the indictment, which was denied.
As the Austin Court of Appeals has pointed out,
It is axiomatic that motions in limine do not preserve error. Webb v.
State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988); Maynard v.
State, 685 S.W.2d 60, 64 (Tex. Crim. App. 1985). This is true
whether the motion is granted or denied. Willis v. State, 785 S.W.2d
378, 384 (Tex. Crim. App. 1989); Webb, 760 S.W.2d at 275. A
ruling on a motion in limine does not purport to be one on the merits
but one regarding the administration of the trial. The remedy for a
violation of a ruling on a motion in limine rests with the trial court.
Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972);
Wade v. State, 814 S.W.2d 763, 765 (Tex. App.—Waco 1991, no
pet.). The trial court may hold the litigant or attorney in contempt or
use other remedies or sanctions. Brazzell, 481 S.W.2d at 131. Even
if there has been a violation of the order on the motion in limine, it is
incumbent that a party object to the admission or exclusion of
evidence or other action in order to preserve error for appeal. Id.[5]
4
Joyner v. State, No. 01-16-00775-CR, 2018 WL 1725905, at *1 (Tex.
App.—Houston [1st Dist.] Apr. 10, 2018, pet. filed).
5
Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref’d).
4
The State argues that the proposed question was an improper commitment
question under Standefer v. State 6 because it sought to commit the venire to a
verdict contrary to the law, specifically Article 38.37 of the Texas Code of
Criminal Procedure.
Although there was a discussion of an instruction, that instruction appears
to be a jury charge instruction, not a voir dire question. Indeed, the trial judge
specifically said, “I’m going to deny your requested instruction on behalf of the
Defendant. [sic]”
Appellant responded,
Your Honor, we filed, as a prerequisite to or requisite, however you’d
like to couch it -- a motion to quash is typically the vehicle which
constitutionality is charged. We filed a motion to quash.
The trial judge announced he was denying the motion, without further
explanation.
We have searched the record for evidence of Appellant’s preservation of
his complaint that the trial court improperly sustained the State’s objection to his
proposed voir dire question. Indeed, we find no ruling sustaining or overruling
the State’s objection. Appellant referred to a motion to quash in response to the
trial court’s ruling granting the State’s proposed jury instruction. The only motion
to quash we find in the record is a motion to quash the indictment. We find no
other attempt to preserve his complaint on appeal and no ruling on his proposed
6
59 S.W.3d at 180–81.
5
voir dire question. Accordingly, we overrule Appellant’s sole issue and affirm the
trial court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: WALKER and PITTMAN, JJ.; and LEE ANN DAUPHINOT (Senior
Justice, Retired, Sitting by Assignment).
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 21, 2018
6