Marcus Durham v. State ( 2014 )

NUMBER 13-12-00394-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARCUS DURHAM, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion by Justice Perkes
Appellant Marcus Durham appeals his conviction of assault—family violence
(impeding breath or circulation), a third-degree felony. See TEX. PENAL CODE ANN. §
22.01(b)(2)(B) (West, Westlaw through 2013 3d C.S.). Appellant pleaded not guilty, but
a jury found him guilty and assessed punishment at seven years’ confinement in the
Texas Department of Criminal Justice, Institutional Division. By two issues, appellant
argues the trial court should not have admitted: (1) testimony of a former girlfriend
Kimberly Flores that exceeded the scope of the rebuttal; and (2) Flores’s testimony that
appellant offered to marry her and pay her his federal income tax rebate to not testify
against him. We affirm.
I. BACKGROUND
Kimberly Flores called 911 after appellant, her boyfriend at the time, allegedly hit
and choked her. The responding officers observed bruises on Flores’s face, neck, arms,
and legs. Flores showed a female officer bruises on Flores’s chest and hip. Another
officer took photographs, which were admitted at trial, of the bruises on Flores’s body.
Flores testified appellant head butted, kicked, bit, and “slapped me around. He
grabbed ahold of my neck until I could not breathe. I almost passed out.” In the
admitted photographs, Flores identified bite marks and bruises. Another officer noted
the bruising on Flores’s neck in the photos. After the State rested, appellant’s father
testified appellant stayed at his house rather than with Flores on the night of the alleged
altercation.
II. REBUTTAL EVIDENCE
By his first issue, appellant argues the trial court erred by allowing the State to
re-call Flores for rebuttal testimony. The following exchange between the State and
Flores at the beginning of her rebuttal examination helps to explain the State’s decision
to re-call her:
Q: Okay. Ms. Flores, after you testified a few minutes ago during the
break, you and I talked out in the hallway there, right?
A: Yes, sir.
Q: And you reminded me about something that I forgot to ask about?
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A: Yes, sir.
Q: And specifically, what was that?
Defense counsel objected on the grounds that “what was forgotten to be testified
to is outside the scope of rebuttal.” The trial court overruled the objection, and Flores
testified that the altercation between appellant and her resulted from him asking her if she
was pregnant. Flores confirmed that about one week after the fight she discovered she
was pregnant. She further testified that she had a miscarriage later in the pregnancy.1
“Rulings of the court on questions regarding the order of proof will not be disturbed
in the absence of a showing of an abuse of discretion.” Laws v. State, 549 S.W.2d 738,
741 (Tex. Crim. App. 1977); see Barnard v. State, 87 Tex. Crim. 365, 367 (1920) (holding
that order of testimony “is confided largely to the discretion of the trial courts; and their
actions regulating same will ordinarily be upheld, unless by some unusual variance from
the customary procedure some injury appears probable . . . .”). Under this standard, we
uphold the trial court’s ruling so long as it was within the zone of reasonable disagreement
and correct under any theory of law applicable to the case. Winegarner v. State, 235
S.W.3d 787, 790 (Tex. Crim. App. 2007).
In general, “[t]he prosecution is entitled on rebuttal to present any evidence that
tends to refute the defensive theory of the accused and the evidence introduced in support
of it.” Laws, 549 S.W.2d at 741; see TEX. CODE CRIM. PROC. ANN. art. 36.01 (West,
Westlaw through 2013 3d C.S.); Flannery v. State, 676 S.W.2d 369, 370 (Tex. Crim. App.
1984) (en banc) (per curiam). In addition, “[t]he court shall allow testimony to be
1 There was no testimony or indication that the miscarriage was related to the underlying altercation
in this case.
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introduced at any time before the argument of a cause is concluded[] if it appears that it
is necessary to a due administration of justice.” TEX. CODE CRIM. PROC. ANN. art. 36.02
(West, Westlaw through 2013 3d C.S.).
Even when rebuttal evidence does not refute a defensive theory or could have
been presented during the State’s case-in-chief, Texas has long refrained from imposing
the common-law strictures governing order of presentation to exclude evidence. See
Lackey v. State, 638 S.W.2d 439, 457 (Tex. Crim. App. 1982) (en banc) (“This Court has
often held that this statute [Texas Code of Criminal Procedure article 36.02] and its
predecessors mean that testimony may be introduced in the rebuttal portion of a trial
whether it specifically rebuts other testimony or not.”); Laws, 549 S.W.2d at 741
(overruling complaint that the State’s rebuttal evidence did not relate to defensive
theories); McClellan v. State, 118 Tex. Crim. 473, 476 (1931) (“Whether the testimony
proposed to be introduced [at rebuttal] is in rebuttal or not is immaterial[] if it appear[s] to
be necessary to a due administration of justice.”); Townsley v. State, 103 Tex. Crim. 508,
514–15 (1926) (“The strict rule with reference to direct and rebuttal testimony is not
enforced in this state in the trial of criminal cases . . . .”); Hardy v. State, 89 Tex. Crim.
469, 473 (1921) (responding to complaint that State presented non-rebuttal evidence,
explaining, “The common-law rule does not apply in this state in criminal cases.”);
Barnard, 87 Tex. Crim. at 367 (“The order of testimony is not fixed by ironclad rules under
our practice . . . .”); Montgomery v. State, 68 Tex. Crim. 78, 83 (1912) (“[T]he common-
law rule is practically abrogated by the provision of our Code of Criminal Procedure [article
36.02] which authorizes the court to admit testimony at any time before argument is
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concluded . . . .”); Upton v. State, 33 Tex. Crim. 231, 232 (1894) (“It was not necessary
that the evidence introduced should have been in rebuttal.”).
Although Flores’s rebuttal testimony did not counter any defensive theory, we
disagree that the trial court erred in admitting the evidence because the court had
discretion to admit relevant evidence, regardless of whether it was better suited for the
State’s case-in-chief than rebuttal. See TEX. CODE CRIM. PROC. ANN. art. 36.02; Lackey,
638 S.W.2d at 457; Laws, 549 S.W.2d at 741; McClellan, 118 Tex. Crim. 473, 476;
Townsley, 103 Tex. Crim. at 514–15; Hardy, 89 Tex. Crim. at 473; Barnard, 87 Tex. Crim.
at 367; Montgomery, 68 Tex. Crim. at 83; Upton, 33 Tex. Crim. at 232. There being no
abuse of discretion, we overrule appellant’s first issue.
III. HEARSAY
By his second issue, appellant contends the trial court erred in overruling his
objection to Flores’s direct-examination testimony that appellant offered to marry her and
pay her to not testify against him. When she presented this testimony, defense counsel
objected, asserting, “Your Honor, I’m going to have to object to the latter parts of Ms.
Flores’s comments—comments on what—against what’s my client’s requests are.” The
trial court overruled the objection.
On appeal, appellant characterizes the trial objection as a hearsay one. We are
not convinced the trial court was made aware that the objection hinged on hearsay. To
object, a party must timely object, stating the “specific ground of objection.” TEX. R. EVID.
103(a). To preserve error, a party must timely object “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). Having timely and specifically objected at trial,
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the error alleged on appeal must comport with the trial objection. See id.; Heidelberg v.
State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (“legal basis of a complaint raised on
appeal cannot vary from that raised at trial”).
Here, it is unclear from the objection and context what the objection specifically
targeted. We hold appellant’s hearsay objection is unpreserved for our review. See
TEX. R. APP. P. 33.1(a); Heidelberg, 144 S.W.3d at 537. Even had error been preserved,
appellant’s statements offered against him were non-hearsay admissions under Texas
Rule of Evidence 801(e)(2)(A). See TEX. R. EVID. 801(e)(2)(A); Trevino v. State, 991
S.W.2d 849, 853 (Tex. Crim. App. 1999) (en banc) (“[W]e agree with the State that Juan
Gonzales’[s] testimony that appellant told him not to say anything to [the] police” was
“admissible under Rule 801(e)(2)(A) as the admission[] of a party.”).2
We overrule appellant’s second issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
11th day of September, 2014.
2 Appellant also seems to challenge the relevance of the statements, but he did not object on
relevance grounds in the trial court. See TEX. R. APP. P. 33.1 (requiring a specific objection for
preservation); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (“The legal basis of a
complaint raised on appeal cannot vary from that raised at trial”). Appellant also claims the statements
were inadmissible under Texas Rules of Evidence 404(b) and 406, but appellant did not object under those
rules at trial, rendering them unpreserved. See TEX. R. APP. P. 33.1; Heidelberg, 144 S.W.3d at 537.
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