Clarence Semere, II v. State ( 2012 )

Opinion issued May 31, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00482-CR

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Clarence Semere II, Appellant

V.

The State of Texas, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Case No. 1266797

MEMORANDUM OPINION

Appellant Clarence Semere II was convicted of burglary of a habitation.    After finding two prior felony enhancements to be true, the jury assessed punishment at forty years’ confinement.  In one point of error, appellant argues that the “trial court erred in excluding mitigation evidence at the punishment stage of trial.”  We affirm.

BACKGROUND

On May 13, 2010, Jeffrey Meadows discovered his apartment had been broken into and that electronics, money, and jewelry were stolen.  Witnesses testified to seeing appellant carrying electronics through the apartment complex that same day, and several of the stolen items were found in an apartment leased by Kendreia Skillern, appellant’s girlfriend.  Appellant was charged with and convicted for the break-in of Meadows’s apartment. 

A.   Punishment Phase Testimony

At the punishment phase of trial, Skillern testified that she is now married to appellant, and that he is a loving, supportive father to their 14-month-old child and to her 6-year-old child from a previous relationship.  Skillern sees traces of mental health problems in appellant, based on her experience with her family members diagnosed with bipolar disorders and schizophrenia.  She explained that appellant has had trouble securing employment because of his criminal record, but that he has done what he can to provide for her and the children.  Finally, Skillern described appellant as a kind, friendly person who lacked much of a support system from his family.  On cross-examination, she acknowledged that appellant had been convicted of assaulting her and of violating a protective order protecting her.

Appellant’s mother, Debra Thompson, testified that her relationship with appellant’s father was very abusive.  She noted that appellant was a lovable child, who always wanted to be accepted.  She stated that “[h]e would do things, and he would know the consequences behind it, but it was signs of mental problems that I should have looked at.”  She remained in a relationship with appellant’s father for 13 years, during which time he was physically abusive to her and mentally abusive to her children, including appellant.  Appellant would try to protect Thompson from his father.

Thompson explained that appellant was unable to excel in school, and that he would get in trouble at school and ran away repeatedly.  She saw that he was angry, impulsive, and unpredictable, but she never sought medical attention or counseling because she did not know about such things and was a single mother just trying to get by raising her kids. Appellant was not responsive to her attempts to teach him “about doing the right thing,” but he had a strong work ethic and always wanted to be productive.  In her opinion, being a convicted felon has really hampered his efforts to find and keep a job.

Thompson attributed to some of appellant’s problems to her failure to give him what he needed as a child.  She testified that while appellant had problems when he was younger, he is now trying to settle down to a better life with his wife and child. 

B.   Objections to Punishment-Phase Testimony

During Thompson’s punishment-phase testimony, the court sustained seven objections by the State on various grounds, including (1) not relevant, (2) not responsive, and (3) asked and answered.  One sustained relevance objection was directed at a question about Thompson’s work in penitentiary security that inquired as to her “observations in general about inmates.”  Another questioned whether her other two children gave her trouble when they were younger.  A third inquired whether, in hindsight, Thompson would have done something different raising appellant.  These three topics were abandoned after the relevance objections were sustained. 

The subjects of the other four sustained objections were (1) the frequency of appellant’s father’s abusiveness (objection: “relevance and nonresponsive”), (2) the reasons why Thompson did not seek medical help for appellant’s childhood behavior problems (objection: “nonresponsive”), (3) appellant’s difficulty in securing employment because of his criminal record (objection: “asked and answered”), and (4) Thompson’s view about what “type of person” appellant is. (objection: “form of the question”). 

Although these objections were sustained, each topic was discussed elsewhere during Thompson’s testimony without objection. 

MITIGATION EVIDENCE 

In one issue, appellant argues that the trial court erred in excluding mitigation evidence at the punishment phase of trial.  See Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2011) (providing that, at punishment stage, “evidence may be offered by the state and the defendant as 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”).  He emphasizes the importance of mitigation evidence in punishment and asserts that the evidence of appellant’s abusive family environment as a child was relevant for the jury’s consideration.  Appellant does not contend that any particular evidence was excluded; rather, he argues that his “effort to paint [a] mitigation picture was fragmented . . . because the prosecutor repeatedly and successfully objected to nonresponsive answers and to relevance” during Thompson’s testimony.  Specifically, he argues that many of the topics about appellant’s childhood were “worthy of an explanation rich in detail” but that counsel’s “effort to provide more detail was cut off with repetitive objections and adverse rulings.”  He specifically pinpoints the frequency of his father’s abuse as a topic that was not fully vetted because of the State’s repeated objections.  Because he was allegedly harmed by his counsel’s inability to pursue further this and other issues from his childhood, he seeks a new punishment hearing. 

In response, the State argues that appellant has presented nothing for this Court’s review because (1) the trial court did not exclude any mitigation evidence, (2) appellant did not complain to the trial court that any mitigation evidence was relevant to sentencing and admissible under article 37.07, and (3) appellant failed to make a record in the trial court about the allegedly excluded mitigation evidence.  Thus, the State contends, appellant has failed to demonstrate that the trial court erred. 

APPLICABLE LAW

Regardless of a defendant’s plea or whether punishment is assessed by the judge or jury, evidence may, as permitted by the Rules of Evidence, be offered by the State and the defendant as to any matter the court deems relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07 § 3.  The trial court is thus required to afford a defendant an opportunity to present evidence regarding punishment after the defendant has been found guilty. Borders v. State, 846 S.W.2d 834, 835–36 (Tex. Crim. App.1992).

The trial court is given wide discretion in evidentiary rulings.  Williams v. State, 535 S.W.2d 637, 639–40 (Tex. Crim. App. 1976).  We review a trial court’s exclusion of evidence under an abuse of discretion standard of review.  Harris v. State, 152 S.W.3d 786, 793 9Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).  A trial court has not abused its discretion unless it has acted arbitrarily and unreasonably, without reference to any guiding rules or principles.  Harwood v. State, 961 S.W.2d 531, 536 (Tex. App.—San Antonio 1997, no pet.).  To be entitled to a new sentencing hearing, appellant must show that the trial court denied him the opportunity to present evidence in mitigation of punishment.  Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992) (per curiam). 

Generally, any harm in the improper exclusion of evidence is cured by admission of the same or similar evidence elsewhere during trial.  Rische v. State, 746 S.W.2d 287, 291 (Tex. App.—Houston [1st Dist.] 1988) (“Where the same or similar evidence is elicited from another source, the exclusion of such evidence may be harmless.”), rev’d and remanded on other grounds, 755 S.W.2d 477 (Tex. Crim. App. 1988); Womble v. State, 618 S.W.2d 59, 62 (Tex. Crim. App. 1981) (“This court has consistently held reversal is not required by exclusion of evidence where the same testimony was later admitted without objection.”). 

To preserve error, a defendant is generally required to make a timely objection in the trial court. Tex. R. App. P. 33.1.  If the substance of excluded evidence is not apparent from the context, the defendant should make a timely offer of proof on the record.  Tex. R. Evid. 103(a)(2),(b).

Analysis

Appellant’s brief does not argue that the trial court erred by sustaining the State’s relevance objections to the questions about (1) Thompson’s impressions of prison inmates, (2) whether Thompson’s other children had behavior problems growing up, and (3) whether Thompson would have done things differently in hindsight. Accordingly, although these topics were not explored elsewhere, we need not analyze whether they were relevant to mitigation.    

Appellant acknowledges that his abusive childhood was a topic of punishment-phase testimony and that no record was made in the trial court as to the substance of the additional testimony he now argues was excluded.  He nonetheless requests that we find that exclusion occurred and was harmful rather than leaving any relief to post-conviction habeas proceedings. 

We agree with the State that, as a threshold matter, appellant has not actually demonstrated that the trial court excluded any mitigation evidence.  While appellant focuses in his brief here on the lack of testimony about the frequency that appellant was abused by his father, the trial court did not exclude that testimony.  The State did not object to appellant’s counsel’s inquiry about the frequency of abuse, but rather objected to Thompson’s answer that was not responsive to that question:

Q.      Was he ever abusive to the children?

A.      Mentally, yes.

Q.      Was he ever abusive to Clarence?

A.      One incident in particular that I can remember, yes.

Q.      Just one time or many?

A.      He was mentally abusive as far as I was concerned. All of the abuse that he was doing to me affected him.

[State];        Objection, relevance and nonresponsive.

THE COURT:      Sustained.

Q.      Again, was he abusive to Clarence?

A.      Yes.

Q.      In what way? 

A.      He — if Clarence would try to intervene because he was being abusive to me, he would go after — towards him to try to attack him; and I would have to try to keep him away from him. 

Appellant’s counsel never again inquired about the frequency of abuse.  And appellant never argued to the trial court that he was not able to adequately develop the childhood abuse facts underlying his mitigation theory.

Our own review of the record satisfies us that the subjects of the other three sustained objections—i.e., (1) why Thompson did not seek medical help for appellant’s childhood behavior problems, (2) appellant’s difficulty in finding a job with his criminal record, and (3) Thompson’s view about the type of person appellant is—were fully explored elsewhere during Thompson’s testimony. Appellant does not argue otherwise.

Because appellant has not demonstrated that the trial court actually excluded evidence, he cannot demonstrate error or harm.  We thus overrule appellant’s sole issue.

CONCLUSION

We affirm the trial court’s judgment.

                                                                   Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Do not publish.   Tex. R. App. P. 47.2(b).