Tammie Dean Lovell v. State ( 2006 )

MARY'S OPINION HEADING

NO. 12-04-00291-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TAMMIE DEAN LOVELL,                         §                      APPEAL FROM THE 349TH

APPELLANT

V.                                                                    §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                   §                      HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

            Pursuant to Texas Rule of Appellate Procedure 50, we withdraw our opinion of March 22, 2006 and substitute the following opinion in its place.

            A jury convicted Appellant Tammy Dean Lovell of interference with child custody, and the trial court assessed her punishment at 360 days of confinement.  In two issues, Appellant contends that the trial court reversibly erred in overruling her objections to certain testimony.  We affirm.

Background

            Appellant and Gary Lovell are the parents of a daughter, J.B.L., who was born May 18, 2000. Appellant and Gary were married for only a short time and divorced in January 2001.  Gary Lovell was named managing conservator, and Appellant was named possessory conservator. In December of 2002, a modification order was entered that named Gary and Appellant joint managing conservators and included a standard possession order.  According to the order, Appellant had possession of J.B.L. the first, third, and fifth weekends of each month.

            On the afternoon of Friday, October 24, 2003,¹ the headmaster of Jordan School reported that Appellant had appeared at the school and taken J.B.L. without permission.  Crockett Police Officer Ben Gardner was dispatched to the school to assist in the investigation.  The child was eventually returned after seven days.  A probable cause affidavit was presented to a magistrate, and an arrest warrant was issued for Appellant.

            Appellant was charged by indictment with the offense of interference with child custody.  See Tex. Pen. Code Ann. § 25.03(a)(1) (Vernon 2003).  A jury found Appellant guilty of the offense charged, and the trial court assessed her punishment at 360 days of confinement.  This appeal followed.

Opinion Testimony

            In her first issue, Appellant contends the trial court erred in failing to grant her objection to Officer Gardner’s testimony regarding her guilt or innocence because this was a conclusion to be reached by the jury.  The State contends that Appellant has forfeited her complaint about the testimony because her objection at trial does not comport with her complaint on appeal.  In addition, the State argues that during Appellant’s cross examination of Gardner, she proffered the same evidence she now complains of on appeal.

            Appellant complains about the following testimony: 

[PROSECUTOR]:                Q.            Now, officer, you filed charges of interference with child custody, did you not?

[GARDNER]:                       A.            Yes, sir.

[PROSECUTOR]:                Q.            Do you feel based on your investigation that she violated the law?

                [DEFENSE COUNSEL]:     Your Honor, I am going to object.  That calls for a legal conclusion.

                [THE COURT]:                    Overruled.

[GARDNER]:                       A.            Will you repeat the question again, please.

[PROSECUTOR]:                Q.            You filed charges, interference with child custody?

[GARDNER]:                       A.            After talking to the D.A., yes.

[PROSECUTOR]:                Q.            Based on your investigation, do you feel that she violated the law?

[GARDNER]:                       A.            Yes.

Defense counsel’s cross examination of Gardner included the following exchange:

[DEFENSE COUNSEL]:     Q.            Okay.  This is a copy of the court documents that you were relying on; is it not?  You gave your opinion, I suppose an expert opinion on criminal acts, that you believed a criminal act was committed?

[GARDNER]:                       A.            Yes, ma’am, and referring [sic] with the D.A.

Error Preservation

            The State asserts that Appellant failed to comply with Texas Rule of Appellate Procedure 33.1 because Appellant did not bring the alleged error to the trial court’s attention with sufficient specificity to make the trial court aware of the complaint. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion.  Tex. R. App. P. 33.1(a)(1); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).  Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule.  Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).  In the instant case, an objection was made and the court ruled on the objection.  Although the complaint now raised by Appellant may be characterized as somewhat different than the objection at trial, we conclude that it is not so different as to preclude our consideration of the issue.  We also conclude that error was not forfeited by defense counsel’s mere restatement of the objectionable testimony.

Standard of Review

            We review a trial court’s ruling admitting testimony under an abuse of discretion standard, meaning that we will uphold the trial court’s decision if it is within “the zone of reasonable disagreement.”  Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).  We review the trial court’s ruling in light of the evidence before the trial court when the ruling was made.  Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).

Applicable Law

            The opinion of a nonexpert witness is not admissible unless the opinion is (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.  Tex. R. Evid. 701.  If the opinion is otherwise admissible, the testimony is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.  Tex. R. Evid. 704.  However, an opinion is inadmissible if it is a legal conclusion or amounts to little more than choosing sides as to how the case should be ultimately decided.  Gross v. State, 730 S.W.2d 104, 106 (Tex. App.–Texarkana 1987, no pet.).  The expression of guilt or innocence in any case is a conclusion to be reached by the jury based upon the instruction given them in the court’s charge, coupled with the evidence admitted by the judge through the course of the trial.  Boyde v. State, 513 S.W.2d 588, 590 (Tex. Crim. App. 1974).  No witness is competent to voice an opinion as to guilt or innocence.  Id. 

Analysis

            Here, Gardner was asked whether he felt, based upon his investigation, that Appellant violated the law.  He answered the question in the affirmative.  Although Gardner did not use the word “guilty,” his statement that he believed Appellant violated the law is, in substance, an opinion that he believes Appellant is guilty.  Therefore, the trial court should have sustained Appellant’s objection.  See Huffman v. State, 691 S.W.2d 726, 730 (Tex. App.–Austin 1985, no pet.) (error to ask deputy sheriff if he felt a crime had been committed where appellant claimed he shot victim in self defense). However, a trial court’s error in admitting evidence should be disregarded unless the error affected Appellant’s substantial rights.  See Tex. R. App. P. 44.2(b).  A substantial right is affected when the error had a substantial and injurious effect or influence in the determination of the jury’s verdict.  King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).  An accused’s substantial rights are not affected by the erroneous admission of evidence if the court, after examining the  whole record, has fair assurance that the error did not influence the jury or had but a slight effect.  Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).

            A person interferes with child custody if the person takes or retains a child younger than 18 years when the person knows that the taking or retention violates the express terms of a judgment or order of a court disposing of the child’s custody.  Tex. Pen. Code Ann. § 25.03(a)(1).  The State introduced the modification order into evidence.  The order gave Appellant possession of J.B.L. on the first, third, and fifth weekends of each month.  Gary Lovell testified that Appellant lives in the Houston area.  He said that he and Appellant had agreed during July, August, and September that Appellant could have J.B.L. for seven consecutive days each month instead of the weekend possession.  In each of those months, Appellant called and requested specific dates for her seven days. If there was a problem with the dates, Lovell would call her back.  Lovell testified that in early October, Appellant left a message on his answering machine that she wanted to pick up J.B.L. on Sunday, October 26, 2003,  to exercise her seven day visitation. Appellant left a second message on October 24 saying that she would pick up J.B.L. on Saturday, October 25.² Lovell testified that he called Appellant and told her she could not pick up J.B.L. on Saturday because J.B.L. had other activities scheduled.  He further testified that, while talking to Appellant, he replayed the earlier message in which Appellant asked to pick up J.B.L. on October 26.   He stated that Appellant became angry and hung up.

            Appellant admitted that, according to the modification order, she was to have possession of J.B.L. the first, third, and fifth weekends of each month.  The day she picked up J.B.L., October 24, 2003, was the fourth weekend of the month.  Consequently, Appellant’s own testimony establishes that her taking possession of J.B.L. on October 24 was contrary to the terms of the modification order.  She contends, however, that she had requested possession for October 24 according to the arrangement she and Lovell had established during the summer.  She also confirmed that she had requested possession of J.B.L. for the last week of October.  She testified that her first message was that she would like to have J.B.L. on “Friday the 26th through Friday the 31st,” not on Sunday, October 26, as Lovell had testified. Thus, according to Appellant’s recollection, she requested to pick up J.B.L. on Friday, October 24, but mistakenly said “Friday the 26th.”  She admitted that the second message was her voice, but stated that she did not remember making the call.  The contents of the first message were critical to Appellant’s contention that she had permission to pick up J.B.L.  However, three witnesses, in addition to Lovell, testified that they heard the first message.  Each confirmed that Appellant said she would pick up J.B.L. on Sunday and not on Friday as Appellant maintained.  The testimonies of Appellant, Lovell, and the three witnesses who confirmed Lovell’s recollection of the first message provided overwhelming evidence to support the jury’s verdict.

            We also note that Gardner was not the only law enforcement officer whose testimony was unfavorable to Appellant.  Two of the witnesses whose testimony supported Lovell’s recollection of the first message were the Houston County Sheriff and the investigator for the district attorney’s office.  Their testimonies confirmed Lovell’s recollection about the first message and also served to challenge Appellant’s credibility.  Moreover, Gardner did not hold himself out as an expert on the subject of Appellant’s guilt or innocence or represent that he was in a better position to assess Appellant’s guilt than the jury.³  During closing argument, the prosecutor identified Gardner and others as neutral witnesses.  He pointed out that

[y]ou heard from Ben Gardner, [and another witness], how seriously they took these charges.  You heard about their efforts with regard to not only in this county trying to find the child and trying to find the defendant in this case, but also giving notice in other counties, trying to find out where she lived down there in Harris County, trying to get deputies from that county to go by and look.

He made no reference to Gardner’s testimony about his belief that Appellant had violated the law.

            Appellant states in her brief that “the testimony of a police officer (fact witness) as to the guilt of the accused is prejudicial and would have the effect of influencing the jury.” However, she does not specify how the admission of Gardner’s opinion prejudiced her.  Based upon our consideration of the entire record, we conclude that the improperly admitted evidence had no substantial or injurious effect on the jury’s determination of the verdict.  Appellant’s first issue is overruled.

Extraneous Offense Testimony

            In her second issue, Appellant argues that the trial court erred when it failed to sustain Appellant’s objection to testimony concerning Appellant’s custody of her children. Specifically, she complains about the testimony from her father, William Reece, which was admitted over Appellant’s objection.  Defense counsel objected to the evidence as “going beyond the scope of this case.  This is not relevant and it is prejudicial.” Appellant states that she provided the prosecution with Notice and Request for Admission of Extraneous Facts, and the prosecution failed to comply with that request.  The State counters that Appellant’s second issue is moot because the record, as supplemented, contains the State’s Notice and three Supplemental Notices.  We received the record of the State’s notices on February 17, 2005.  After a review of the complete record, we agree with the State that Appellant’s complaints as set out in her second issue are moot.

Conclusion

            Having overruled Appellant’s first issue and having found her second issue moot, we affirm the judgment of the trial court.

                                                                                                   JAMES T. WORTHEN   

                                                                                                               Chief Justice

Opinion delivered July 12, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)

---

¹ We note that October 24, 2003 was the fourth weekend of the month.

² The first message was not played for the jury because it had been inadvertently erased after the tape was turned over to the investigator.  The second message was played for the jury.

³  Appellant notes in her brief that Gardner testified as a “fact witness.”  The only reference to Gardner as an expert came from Appellant’s trial counsel during the following exchange:

[DEFENSE COUNSEL]:     This is a copy of the court documents that you were relying on; is it not?  You gave your opinion, I suppose an expert opinion on criminal acts, that you believed a criminal act was committed?

[GARDNER]:                       Yes, ma’am, and referring [sic] with the D.A.

We interpret trial counsel’s reference to Gardner’s expert status as more of an assumption than a question.  Gardner’s answer does not clearly indicate that he characterized himself as an expert witness.