Brian O'Neal Richardson v. State ( 2011 )

Opinion issued June 30, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00200-CR

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BRIAN O’NEAL RICHARDSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Case No. 08CR1120

MEMORANDUM OPINION

          Without a sentencing recommendation from the State, appellant, Brian O’Neal Richardson, pleaded guilty to the offense of murder.[1]  Appellant elected to have the trial court assess punishment.  After hearing evidence relevant to sentencing, the trial court assessed punishment at 41 years in prison.  On appeal, appellant raises two issues in which he contends the trial court improperly admitted extraneous-offense evidence during the punishment hearing.

          We affirm.

Background

A grand jury indicted appellant for the murder of Gary Bell. The indictment provides, in relevant part, that on or about April 12, 2008, appellant “intentionally or knowingly” caused the death of Gary Bell by hitting Bell “with his hand or hands and/or by choking [Bell] with his hand or hands or with an object unknown to the Grand Jury and/or by asphyxiating [Bell] by ligaturing (hog-tying) the hands and legs of [Bell] and/or by drowning [Bell] with water.”  

Appellant was also charged by separate indictments with the offenses of felony theft, tampering with evidence, aggravated kidnapping, and assault of a public servant.  During the pretrial conference, appellant informed the trial court that he would plead guilty to the offense of murder and elected to have the trial court assess punishment.  The State informed the trial court that it had agreed to dismiss the felony theft, tampering with evidence, aggravated kidnapping, and assault of a public servant charges against appellant. 

Two days later, the trial court conducted the punishment phase.  Mary Jowers was the State’s primary witness. Jowers testified regarding the events surrounding Bell’s murder.  She stated that she had met Bell at a motel and agreed to have sex with him for $200, which Bell paid to her.  Jowers testified that after she and Bell smoked crack cocaine, she blacked out in the motel room.  When she woke up, Jowers believed that Bell had sexually assaulted her while she was unconscious.  Bell had also removed the $200 from her purse.

Bell drove Jowers to another motel, the Comfort Inn in Texas City.  Once there, Jowers went inside to speak to appellant.  Jowers had known appellant for approximately 22 months and testified that she had a sexual relationship with appellant and shared her prostitution profits with him. Jowers told appellant that Bell had raped her and taken $200 from her. 

Appellant got in a car and went after Bell who had already left in his car.  Meanwhile, Jowers went to Room 112 of the Comfort Inn.  After some time, appellant arrived at the room accompanying Bell. Another of Jowers’s acquaintances, William Perry, also arrived at the room.  The men questioned Bell about Jowers’s accusations.  Jowers testified that Bell admitted to sexually assaulting her and taking the $200 from her purse.  Jowers stated that appellant and Williams then “attacked” Bell by hitting and kicking him and took Bell into the bathroom.  She could hear water running and a sound she described as “like somebody wrestling.” 

Jowers testified that appellant came out of the bathroom and asked for belts that were in a suitcase.  Appellant took three belts into the bathroom.  At one point, Jowers looked into the bathroom.  She could see in the bathroom mirror that the men had Bell in the bathtub.  Jowers testified that at times appellant was alone in the bathroom with Bell and at other times Williams was with Bell. 

Another of the State’s witnesses, Arnold Garza, testified that he was also in the motel room that morning.  He stated that appellant brought him into the bathroom when Bell was in the bathtub. Appellant tried to justify what they were doing to Bell by explaining that Bell had raped and stolen money from Jowers. Garza did not see Bell because the shower curtain was drawn, but he could hear Bell kicking and asking for help.

Jowers testified that she eventually left the motel room.  When she returned, Bell was no longer in the bathroom. Jowers testified that she was “high” on drugs when she returned and did not ask where Bell was.  She stated that she knew that Bell must be somewhere in the room, but she did not hear him.  Jowers testified that for the rest of the day she and appellant ate, smoked crack cocaine, and had sex. 

Later that night, appellant asked Jowers to get a luggage cart.  She then learned that Bell’s body had been in the closet.  Appellant took Bell’s body out of the closet and loaded it onto the luggage cart. Jowers testified that Bell was not making any sound and was not moving at that point.  Jowers and appellant loaded Bell’s body into Bell’s car.  Appellant drove the car to Galveston with Jowers as a passenger.  Once in Galveston, appellant and Jowers placed Bell’s body in Galveston Bay.  Jowers testified that she, appellant, and Garza were arrested the next day in Houston while driving Bell’s car.

At the punishment hearing, appellant stipulated to evidence showing that Bell’s body was recovered from the water the next day, and photographs admitted into evidence show Bell’s body as it appeared when recovered from the water. Bell was found naked with his hands and feet bound with belts.  A shoelace was around his neck.  Appellant stipulated that the t-shirt that appellant wore during Bell’s beating had his, Jowers, and Bell’s DNA.  He also stipulated that the shoelace found around Bell’s neck had his and Bell’s DNA on it. 

The medical examiner, who conducted Bell’s autopsy, testified that he determined Bell’s cause of death to be multiple blunt force trauma, asphyxiation, drowning, and ligature restraint.  He concluded that the manner of death was homicide. 

The defense offered the testimony of a number of witnesses, including appellant.  In his testimony, appellant admitted that he had followed Bell and brought him back to the Comfort Inn after he learned from Jowers that Bell had raped her and had stolen her money.  In his testimony, however, appellant portrayed Williams as the primary actor, who beat and tied up Bell.  Appellant admitted to assisting Williams by, for example, retrieving the belts used to tie up Bell and to holding Bell’s hands and legs.  Appellant denied hitting Bell or tying the ligature around Bell’s neck. Appellant testified that he assisted Williams with regard to the violence visited upon Bell because he was afraid of Williams and claimed that Williams threatened appellant’s family.  Appellant also admitted to disposing of Bell’s body after Williams left the motel room and never returned.

Appellant stipulated that he was previously convicted of theft of a firearm, theft from a person—which was reduced from aggravated robbery—forgery, felony theft, unauthorized use of a motor vehicle, evading arrest, and two offenses of burglary of a motor vehicle. Appellant testified that he had not been previously convicted of a violent crime or an assaultive offense. The defense also called several other witnesses to testify on appellant’s behalf, including appellant’s mother. 

At the conclusion of the hearing, the trial court stated that appellant had pleaded guilty and been found guilty of the offense of murder. The trial court further stated that it had “listened carefully to the evidence” and “reviewed the presentence investigation [report].”  The trial sentenced appellant to 41 years in prison.  This appeal followed.

Admission of Extraneous Offense Evidence

Appellant presents two issues on appeal in which he contends that the trial court abused its discretion in permitting the State to ask his mother whether she had heard that appellant had been indicted for the offenses of assault on a public servant.  

Relevant Portions of the Record

During the defense’s case in chief, the following exchange occurred between defense counsel and appellant’s mother:

[Appellant’s counsel]:  What—have you ever known your son to be violent or assaultive before?

[Appellant’s mother]:  It would take a lot.  He would have to be pushed to a certain extent.  I believe that everyone has a breaking point.

Q.  Have you—would you describe—

A.  I’ve never seen him violent where he wants to take someone’s life or hurt somebody—

Q.  Your son—

A.  —draw blood from [sic] or anything of that nature.

Q.  [H]as your son ever been convicted of anything violent?

A.  No, sir.

Q.  Or assaultive?

A.  Not that I know of.

Q.  Have you ever witnessed him being violent or assaultive to anybody?

A.  No. sir. 

          When appellant’s mother was cross-examined by the State, the following dialogue occurred:

[State’s counsel]:  The Defense counsel asked you have you ever known your son to be violent or assaultive. Ms. Richardson, I’m Larry Drosnes, Assistant Criminal District Attorney.  And you and I’ve never talked before, have we?

[Appellant’s mother]:  No, sir.

[State’s counsel]: Had you heard, Ms. Richardson, that your son was indicted for assault on—

[Appellant’s counsel]:  Your Honor, I object to that.  We had an agreement before this trial started that those would not be brought in at the punishment phase of the trial.  They have been dismissed.  I took the District Attorney’s Office at their word that they would not present those in the punishment phase or any of the cases that were dismissed in the punishment phase.

[State’s counsel]: I believe he opened the door—

[Appellant’s counsel]:  And I asked her has she ever witnessed him being assaultive.  And as the Court’s well aware, opening the door is narrowly construed.  So, he would be allowed to bring in evidence that she did witness.  My questions were has he ever been convicted of an assaultive or violent offense.  Then I asked her has she ever witnessed him being assaultive or violent.  So that would open the door—as the Court’s aware, opening the door is narrowly construed.  So, he would be allowed to show that he has been convicted or that she has witnessed. 

[State’s counsel]:  The question that was asked, you can look it up.  He said, “Have you ever known your son to be violent or assertive” [sic].  He’s opening the door.  He’s suggesting that he’s never been violent or assertive [sic].  But he’s opening the door for me to just ask that “have you heard” question.

[Appellant’s counsel]:  The Court knows that he was indicted and the cases were dismissed.  If he’s going to get into the facts of the case—

[State’s counsel]:  No.  I didn’t ask for the facts.

THE COURT:  This is the ruling.  I believe the question was, “Are you aware of any violent or assaultive nature?”  I would allow some questions in that area.  Objection overruled.

[State’s counsel]:  Thank you, Your Honor.

[State’s counsel]:  Ms. Richardson, have you heard that your son while he was in the Galveston County jail was indicted for the offense of assault on a public servant for two deputies in the county jail?

[Appellant’s mother]:  I heard something of that nature.

[State’s counsel]:  That’s all I have, Your Honor.  I pass the witness.

[Appellant’s counsel]: No further questions. 

Failure to Preserve Issues

In his first issue, appellant contends that the trial court abused its discretion when it overruled his objection to the admission of his mother’s testimony regarding the assault-of-a-public-servant offenses because the State failed to prove the offenses beyond a reasonable doubt.  In his second issue, appellant contends that the State failed to give him adequate notice that it would offer evidence of the subject offenses.

We agree with the State that appellant has failed to preserve either appellate issue.[2]  To preserve a complaint for our review, a party must have presented to the trial court a 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); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998). The contention on appeal must comport with the specific objection made at trial.  Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Rothstein v. State, 267 S.W.3d 366, 373 (Tex. App.—Houston [14th Dist.] 2008 pet. ref’d) (“An objection stating one legal theory may not be used to support a different legal theory on appeal.”).

Here, appellant objected only to the subject testimony on the ground that the State was violating the plea agreement by eliciting testimony regarding the extraneous assault offenses.  Appellant made no objection in the trial court that the extraneous offense evidence should not be admitted because the State did not prove the assault-of-a-public-servant offenses beyond a reasonable doubt.  Appellant also did not object on the ground that the State had not provided adequate notice of its intent to offer the evidence. 

Appellant contends that error was preserved in a pre-trial filing entitled, “Defendant’s Written Objection to Admissibility of Extraneous Offenses, Request for Procedural Determination by Trial Court with Findings of Fact and Conclusions of Law, and for Limiting Instructions.”  In his brief, appellant writes that in this filing he “specifically invoked Texas Rules of Evidence 401, 402, 403, and 404(b), and Fifth, Sixth, Fourteenth Amendments to the United States Constitution, Article 1, Sections 1.04, 1.05, and 1.051 of the Texas Code of Criminal Procedure.”  With regard to the written objections contained in this filing, the trial court ruled in a pre-trial hearing as follows: “At least at this point, we’ll treat this as a Motion in Limine, not making any predetermination as to whether it will be admissible or not.  I would ask you both to approach before mentioning it in front of the jury.”

A motion in limine “is a preliminary matter and normally preserves nothing for appellate review.”  Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (citing Gonzales v. State, 685 S.W.2d 47, 50 (Tex. Crim. App. 1985)); Johnson v. State, 981 S.W.2d 759, 760 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (“The general rule is that a motion in limine does not preserve error.”).  To preserve error regarding the subject matter of a motion in limine, the appellant must object at the time the subject is raised during the trial.  Fuller, 253 S.W.3d at 232; see also Tex. R. App. P. 33.1(a)(1)(A).  Appellant did not object to the testimony regarding the assault offenses on the grounds he now raises on appeal at the time the testimony was elicited.  Thus, the pre-trial motion cited by appellant does not preserve the error he asserts in each of his appellate issues.  See Wilson, 71 S.W.3d at 349; see also Tex. R. App. P. 33.1(a)(1); Mosley, 983 S.W.2d at 265.

Harmless Error

Even if we assume that the trial court abused its discretion by admitting the extraneous-offense testimony, we will not reverse the judgment if the error was harmless.  See Tex. R. App. P. 44.2(b).  More precisely, we will not reverse a trial court’s judgment based on the erroneous admission of evidence unless the error affects a substantial right.  See id.; Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see also Ruiz v. State, 293 S.W.3d 685, 695 (Tex. App.—San Antonio 2009, pet. ref’d) (holding that admission of extraneous-offense evidence during punishment phase, when State failed to provide notice required by statute, is non-constitutional error).  “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.”  See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).  Stated conversely, a substantial right is not affected by the erroneous admission of evidence “if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.”  Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

          Here, the record does not show that appellant’s substantial rights were affected.  The record contains ample evidence on which the trial court might have based its sentence—namely, the evidence showing the particularly violent and brutal nature of the crime.  The evidence showed that Bell was bound, beaten, strangled, and drowned.  Appellant then dumped Bell’s nude body into Galveston Bay.  At the punishment hearing, the medical examiner characterized the methodology used to asphyxiate Bell as “torture.” 

          The trial court also heard evidence that appellant had been previously convicted of aggravated robbery, forgery, felony theft, unauthorized use of a motor vehicle, evading arrest, and two offenses of burglary of a motor vehicle.  In addition, the evidence showed that after Bell’s murder, appellant stole Bell’s car and was driving it when he was arrested.  Although these were non-violent crimes, the evidence showed that appellant had a lengthy criminal history. 

          Moreover, although appellant’s mother testified that she had heard that appellant had been indicted for the offenses of assault of a public servant, no evidence was admitted regarding the details of the unadjudicated offenses.  We further note that the State did not rely on or reference the subject extraneous evidence in its closing argument.  Lastly, the trial court was free to disbelieve appellant’s testimony that he played only a small role in Bell’s death. 

In sum, the admission of the complained-of extraneous offense evidence did not have a substantial and injurious effect or influence on the sentence imposed.  See King, 953 S.W.2d at 271.  After examining the record as a whole, we are fairly assured that any error did not influence the trial court in sentencing appellant, or had but a slight effect.  See Motilla, 78 S.W.3d at 355.  Therefore, any error by the trial court in admitting evidence of the extraneous offenses was harmless. 

Conclusion

          We affirm the judgment of the trial court.

Laura Carter Higley

                                                                   Justice

Panel consists of Justices Jennings, Higley, and Brown.

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

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[1]           See Tex. Penal Code Ann. § 19.02(b) (Vernon 2003).

[2]           Appellant frames his first issue in terms of sufficiency of the evidence.  A challenge to the legal sufficiency of the evidence supporting a conviction cannot be forfeited for failure to object at trial.  See Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004).  However, when an appellant complains on appeal of the sufficiency of the evidence of an extraneous offense at punishment, his complaint is not truly about sufficiency.  Instead, his complaint pertains to the admission of the evidence.  See Malpica v. State, 108 S.W.3d 374, 378–79 (Tex. App.—Tyler 2003, pet. ref’d.).  Such complaint is a claim of evidentiary trial error, a complaint that is forfeited for failure to object in the trial court.  See Moff, 131 S.W.3d at 490.