John O. Roberts v. Sean Leedy ( 2011 )

NUMBER 13-10-182-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ALLEN JOSEPH FRUGE
a/k/a ALLEN FRUGE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court
of Jefferson County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Vela, and Perkes
Memorandum Opinion by Justice Vela
Appellant, Allen Joseph Fruge a/k/a Allen Fruge was indicted for the murder of
Coty Brynne Day. See TEX. PENAL CODE ANN. § 19.02(b) (Vernon 2003). After the jury
convicted Fruge of the lesser-included offense of manslaughter, see id. § 19.04(a), it
assessed punishment at twenty years‟ imprisonment. In four issues, Fruge argues the
trial court erred by (1) excluding evidence and (2) assisting the State during its
cross-examination of a defense witness. We affirm.1
I. DISCUSSION
A. Guilt-Innocence Phase
In issue one, Fruge argues the trial court violated Article 38.05 of the Texas Code
of Criminal Procedure by assisting the State during its cross-examination of a defense
witness. When the prosecutor attempted to cross-examine Fruge‟s stepfather, Darrell
Scott, about a document marked State‟s exhibit 24, Scott stated that he needed his
glasses and that he did not bring them to the courtroom. The trial court asked Scott,
“What are they, reading glasses?”, and he said, “Yes, sir.” Despite the fact that Scott did
not have his glasses, the prosecutor asked him, “Is that his [Fruge‟s] signature on the
bottom of [exhibit] 24?” He replied, “It don‟t look like it. I can‟t really say.” After Scott
finished this sentence, the trial judge stated, “Hold on for a second. I‟ll be right back.”
After the judge returned to the bench, defense counsel stated, “[I]t appears to me the
Court is retrieving some reading glasses and I expect that the Court will tender those
glasses to the witness. . . .” Defense counsel objected to the trial court‟s action “as being
an improper participation by the judge in the case and also as a comment on the evidence
and comment on the credibility of the witness and we object to the Court assisting the
prosecution in the prosecution of this case by his actions.” The trial court overruled the
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Fruge does not challenge the legal sufficiency of the evidence to support his conviction. As this
is a memorandum opinion, and the parties are familiar with the facts, we will not recite them here except as
necessary to explain the Court‟s decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
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objection, and Scott, while wearing the glasses given to him by the judge, examined
State‟s exhibit 24.
1. Preservation of Error
Rule 33.1 of the Texas Rules of Appellate Procedure governs preservation of
error, and states, in part:
(a) In General - As a prerequisite to presenting a complaint for appellate
review, the record must show that:
(1) the complaint was made to the trial court by a timely request,
objection, or motion that:
(A) 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.
This rule encompasses the concept of “party responsibility.” Reyna v. State, 168
S.W.3d 173, 176 (Tex. Crim. App. 2005). In other words, “[t]he complaining party bears
the responsibility of clearly conveying to the trial judge the particular complaint, including
the precise and proper application of the law as well as the underlying rationale.” Id. at
177. “To avoid forfeiting a complaint on appeal, the party must „let the trial judge know
what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge
to understand him at a time when the judge is in the proper position to do something about
it.‟” Pena v State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (quoting Lankston v.
State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). This method gives the trial court
and the opposing party a chance to correct the error. Id. “Whether a party‟s particular
complaint is preserved depends on whether the complaint on appeal comports with the
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complaint made at trial. In making this determination, we consider the context in which
the complaint was made and the parties‟ shared understanding at that time.” Id.
(footnote omitted).
2. Analysis
Fruge‟s complaint on appeal specifically concerns a violation of Article 38.05,
which states:
In ruling upon the admissibility of evidence, the judge shall not discuss or
comment upon the weight of the same or its bearing in the case, but shall simply
decide whether or not it is admissible; nor shall he, at any stage of the proceeding
previous to the return of the verdict, make any remark calculated to convey to the
jury his opinion of the case.
TEX. CODE CRIM. PROC. ANN. art. 38.05 (Vernon 1979).
Defense counsel‟s objection at trial did not mention Article 38.05; rather, his
objection was that the judge‟s action of giving the glasses to Scott constituted: (1) an
improper participation by the judge in the case; (2) a comment on the evidence; (3) a
comment on the credibility of the witness; and (4) assistance to the prosecution by the trial
court in prosecuting its case against Fruge. However, the judge‟s act of giving the
glasses to Scott did not fall within the purview of Article 38.05, his complaint on appeal,
because the action did not concern a ruling on the admissibility of evidence or a
pre-verdict remark calculated to convey to the jury the court‟s opinion of the case. Thus,
Fruge‟s complaint on appeal does not comport with the complaints made at trial. We
hold, therefore, that Fruge failed to preserve the complaint for appellate review. See
TEX. R. APP. P. 33.1(a)(1)(A); Pena, 285 S.W.3d at 464. Issue one is overruled.
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B. Punishment Phase
1. Exclusion of Stepfather’s Religious Principles
In issue two, Fruge argues the “trial court erred in denying [him] the right to present
testimony concerning the religious principles of [his] stepfather and its influence on
[Fruge] during the punishment phase of the trial.” When defense counsel asked Fruge‟s
stepfather, Darrell Scott, “[I]n your home, did you and do you now live by certain religious
principles?”, he said, “Yes, sir.” When defense counsel asked him to “describe . . . what
type of religious principles you enforce at your home?”, he said, “I enforce all my kids to
do right, to live—to live by God.” At that point, the prosecutor objected that “[t]he
religious principles of this witness, . . . are not germane to the punishment issue in this
case.” The trial court sustained the objection and did not admonish the jury to disregard
Scott‟s answer.
a. Preservation of Error
Assuming without deciding that the trial court erred in preventing defense counsel
from questioning Scott about Scott‟s religious principles and their influence on Fruge, we
note that Texas Rule of Evidence 103(a)(2) limits the scope of issues which may be
appealed when evidence is limited or excluded. Under the rule, “[e]rror may not be
predicated upon a ruling which . . . excludes evidence unless a substantial right of the
party is affected, and . . . the substance of the evidence was made known to the court by
offer, or was apparent from the context within which questions were asked.” TEX. R.
EVID. 103(a)(2). The offer of proof may be in question-and-answer form or in the form of
a concise statement by counsel. TEX. R. EVID. 103(b); Warner v. State, 969 S.W.2d 1, 2
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(Tex. Crim. App. 1998). “An offer of proof to be accomplished by counsel‟s concise
statement must include a reasonably specific summary of the evidence offered and must
state the relevance of the evidence unless the relevance is apparent, so that the court can
determine whether the evidence is relevant and admissible.” Warner, 969 S.W.2d at 2.
The primary purpose of an offer of proof is to enable us to determine whether the
exclusion was erroneous and harmful. MCCORMICK ON EVIDENCE § 51 (4th ed. 1992);
Accord, STEVEN GOODE ET AL., 1 TEXAS PRACTICE—GUIDE TO THE TEXAS RULES OF
EVIDENCE: CIVIL AND CRIMINAL § 103.3 (1993).
b. Analysis
Here, the substance of the excluded evidence; i.e., Scott‟s religious principles and
their influence on Fruge, was not made known to the trial court by offer. Further, the
substance of the excluded evidence was not apparent from the context within which
questions were asked. Defense counsel‟s question asked Scott to “describe . . . what
type of religious principles you enforce at your home?” The substance of the excluded
evidence is not apparent from the context of this. Because the substance of the
excluded evidence was not made known to the trial court by offer, and because the
substance of the excluded evidence was not apparent from the context within which
questions were asked, Fruge has failed to comply with Rule 103(a)(2). We hold that
Fruge failed to preserve any error with respect to the trial court‟s exclusion of Scott‟s
testimony. See TEX. R. EVID. 103(a)(2); Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim.
App. 1999) (holding that defendant‟s argument regarding exclusion of evidence was
waived because defendant did not make offer of proof regarding excluded testimony).
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Issue two is overruled.
2. Exclusion of Testimony Concerning Stepfather’s Need for Fruge
In issue three, Fruge argues the trial court erred by denying him the right to elicit
testimony that his stepfather “needed” Fruge, for the jury‟s consideration in assessment
of punishment. On direct examination, defense counsel asked Scott, “Do you expect,
based upon your observation of Allen [Fruge], that whenever he is back in society—the
type of person that you expect him to be?” In response, he said, “Yes, sir. Well, we talk
about some things about when you get out. Right now I‟m looking forward to whenever
he get [sic] out because right now I just found out I have—I may have cancer. So, I‟m
going to need his [Fruge‟s] help.” The prosecutor objected on the grounds that the
answer was “both irrelevant and nonresponsive to the question.” The trial court
sustained the objection and, upon the prosecutor‟s request, admonished the jury that
“[t]he last statement of the witness is to be disregarded. . . . Please do not consider that
in your deliberations.”
a. Standard of Review
A trial court‟s decision to admit or exclude evidence is reviewed under an
abuse-of-discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App.
2002). “The trial court abuses its discretion when the decision lies outside the zone of
reasonable disagreement.” McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App.
2008). “[I]f the trial court‟s evidentiary ruling is correct on any theory of law applicable to
that ruling, it will not be disturbed even if the trial judge gave the wrong reason for his right
ruling.” De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
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b. Analysis
The question posed to Scott referred to the “type of person” he expected Fruge to
be upon Fruge‟s release “back in society[.]” The last part of Scott‟s answer, which the
trial court admonished the jury to disregard, was that Scott needed Fruge because he
(Scott) “may have cancer.” That portion of Scott‟s answer was nonresponsive to the
question because Scott merely expressed his need for Fruge, and did not state what type
of person he expected Fruge to be upon returning to society after being incarcerated. A
trial court may properly instruct the jury to disregard a witness‟s nonresponsive answer.
See Morgan v. State, 515 S.W.2d 278, 281 (Tex. Crim. App. 1974) (stating that when a
witness‟s answer is “nonresponsive,” it can be “cured by a proper objection and motion
that the jury be instructed to disregard”). We hold that the trial court did not abuse its
discretion by sustaining the objection and admonishing the jury to disregard the last
portion of Scott‟s answer relating to his need for Fruge. Issue three is overruled.
3. Exclusion of Testimony Concerning Fruge’s Rehabilitation
In issue four, Fruge argues the trial court erred by denying him the right to elicit
testimony concerning “his rehabilitation through his dedication to God, for the jury‟s
consideration in assessing punishment.” During Fruge‟s direct examination, defense
counsel asked him, “Given your age and the verdict, you know, you will have an
opportunity to come back to society. Can you tell the ladies and gentlemen of the jury
what your intentions are in coming back to society?” To this, he said, “Well, since I‟ve
been incarcerated 22 months, I devoted myself to God.” The prosecutor objected to the
answer as “nonresponsive,” and the trial court sustained the objection.
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Here, defense counsel asked Fruge what his “intentions are in coming back to
society[.]” He testified that while incarcerated for twenty-two months, he “devoted
[himself] to God.” Thus, Fruge‟s answer was nonresponsive to the question because
Fruge did not state what his intentions were in returning to society; rather, he stated that
while incarcerated, he devoted himself to God. We hold that the trial court did not abuse
its discretion by sustaining the objection. See id. Issue four is overruled.
II. CONCLUSION
We affirm the trial court‟s judgment.
ROSE VELA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of April, 2011.
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