Lane Anthony Jordan v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00148-CR
___________________________
LANE ANTHONY JORDAN, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 1
Tarrant County, Texas
Trial Court No. 1571326
Before Gabriel, Kerr, and Bassel, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant Lane Anthony Jordan appeals from his conviction for misdemeanor
assault causing bodily injury to his girlfriend Nicole Stokes, arising from a physical
fight between the two. He first argues that the trial court abused its discretion and
violated his confrontation rights by excluding credibility evidence showing that
(1) Stokes was afraid of involvement by the Department of Family and Protective
Services (DFPS) because her children were in the home during the assault, (2) a
responding police officer found marijuana on Stokes’s dresser and allowed her to
flush it, and (3) Stokes was under the influence of marijuana the day of the assault. In
his second issue, Jordan contends that the trial court abused its discretion by allowing
one of the responding officers to testify regarding his opinion as to Jordan’s
truthfulness (invading the jury’s province) and whether a crime had been committed
(improperly bolstering Stokes’s later trial testimony). We conclude that the majority
of Jordan’s complaints were not preserved for our review and that even if preserved,
Jordan failed to show an abuse of the trial court’s discretion.
I. BACKGROUND
Jordan and Stokes were dating; Jordan would occasionally stay in Stokes’s
apartment with Stokes and her three young children. One night, Stokes returned
home to find that Jordan had been drinking. Jordan was angry that Stokes had not
been returning his calls, and the two began to argue. Stokes pushed Jordan when he
would not let her walk out of the room. Stokes stated that Jordan began hitting her
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face with his fists, causing her to black out. When she roused, the two fought over
her phone, and Stokes kicked, hit, and pushed Jordan to get away. Jordan averred
that Stokes started the fight and that when he tried to leave, Stokes pushed and hit
him in the mouth.
Both Stokes and Jordan called 911. When the police arrived, Jordan denied
hitting Stokes. Jordan’s lip was bleeding; Stokes’s face was injured and swollen, and
she had defensive wounds on her hands. Stokes eventually was diagnosed with a
concussion. While questioning Stokes, a responding officer (Corporal D. Scudder)
apparently found marijuana in Stokes’s dresser and told her to flush it down the toilet,
which she did. This exchange was captured by Scudder’s body-camera video. Also
shown on the video was Stokes’s statement that she could not “risk [her] kids,”
causing Scudder to respond that she would have to make a “report” to DFPS.
At trial, Jordan admitted that he had “popped” Stokes in the mouth but averred
that he was defending himself. Stokes testified that Jordan hit her first. The other
responding officer, Officer Thomas Gilbert, testified that based on his experience and
his investigation of the incident, he believed Jordan was not truthful when he
contended he was defending himself from Stokes. The jury found Jordan guilty of
misdemeanor assault causing bodily injury to a family member, to a household
member, or to a person with whom he had a dating relationship. The trial court
assessed his sentence at 365 days’ confinement, probated for 24 months, with an $800
fine. See Tex. Penal Code Ann. §§ 12.21, 22.01(a)(1), (b).
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II. CREDIBILITY EVIDENCE
In his first issue, Jordan asserts that the trial court abused its discretion by
excluding credibility evidence showing that Stokes had a reason to “exaggerate her
story to ensure [Jordan] was taken to jail instead of her” because (1) her children were
in the home, (2) Scudder had found marijuana on Stokes’s dresser, and (3) Stokes had
been under the influence of marijuana during the assault. He contends that these
exclusions weakened his self-defense claim and limited his cross-examination, thereby
violating his right to confrontation. We review the exclusion of defensive evidence
for an abuse of discretion, but review any unsuccessful confrontation objections de
novo. See Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016); Wells v. State,
558 S.W.3d 661, 666–67 (Tex. App.—Fort Worth 2017, pet. ref’d).
During trial and outside the presence of the jury, Jordan argued that if the State
admitted Scudder’s body-camera video, he wanted to be able to question Stokes about
her fear of DFPS involvement and about whether she had mixed alcohol with her
antidepressants the day of the fight, making her “aggressive.” The trial court noted
that the portion of the video the State indicated it would seek to admit—the first
seven minutes—did not contain information about mixing alcohol with
antidepressants or DFPS involvement.1 The trial court then stated that if those two
1
The first seven minutes showed Scudder and Gilbert arriving at the scene,
Gilbert questioning Jordan, Stokes’s description of the assault, and Scudder’s
statements to Stokes about the severity of her injuries.
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areas of questioning “become[] relevant” during Stokes’s cross-examination, “we can
take that up at that time”: “So we’ll take your requests up later when it becomes
something you need - - feel like you need to get into.” Jordan did not object.
During Scudder’s later testimony, the State offered (and the trial court admitted
over no objection) the first seven minutes of the body-camera video. Jordan asked
Scudder if it was possible that Stokes was “trying to bargain with” Scudder—placing
the blame on Jordan—to prevent Scudder from contacting DFPS. The State’s
relevance objection was sustained. But Scudder did testify in response to Jordan’s
questioning that when children are present at an alleged assault, police policy requires
officers to contact DFPS.
When Stokes testified, she stated that she had not had any alcohol the day of
the assault. On cross-examination, Stokes again denied that she had consumed any
alcohol that day. Jordan then attempted to question Stokes about the marijuana
found in her bedroom, and the State objected. Jordan asserted that he should be
allowed to ask about the presence and destruction of the marijuana “to show
[Stokes’s] potential bias.” The trial court sustained the State’s objection, noting that
the evidence was not relevant “to the question at hand” because “there was [no]
objection that I heard while the jury was out that [Stokes] was under the influence of
the marijuana.” The trial court did, however, allow Jordan to probe whether Stokes
had been “under the influence of anything” or “other medicine.” Stokes testified in
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response to Jordan’s questions that the only substance she had taken that day was her
antidepressant:
Q. In addition to potentially drinking alcohol, what other
substances were you on that day?
A. None, sir.
Q. You were taking antidepressants at the time.
A. Regular medication, yes, sir.
Q. Had you taken it that day?
A. Yes.
Q. What were you taking?
A. Lexapro.
Q. Lexapro. Okay. What does it say in regards to mixing
Lexapro and alcohol?
[State’s objection overruled.]
[A.] I haven’t had any issues. As long as it’s not in excess with
drinking, I’m allowed a glass of wine.
Q. . . . So you’re telling the jury that you can mix antidepressants
and alcohol?
A. With the Lexapro, as long as it is not in excess, I’m allowed a
glass of wine.
Q. And you were taking your Lexapro that day?
A. Yes, sir.
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On redirect, Stokes again testified that she had consumed no alcohol the day of the
fight. Jordan did not specifically ask Stokes if she had smoked marijuana that day,
even though the trial court had granted permission to do so. Jordan also did not
attempt to question Stokes about her fear of DFPS involvement.
The State argues that Jordan failed to preserve his appellate confrontation
arguments for our review by failing to raise this ground in the trial court. Indeed,
even constitutional arguments such as a violation of the Confrontation Clause must
be sufficiently raised in the trial court to preserve the issue for our review. See Golliday
v. State, 560 S.W.3d 664, 670 (Tex. Crim. App. 2018); Smallwood v. State, 471 S.W.3d
601, 614 (Tex. App.—Fort Worth 2015, pet. ref’d) (op. on reh’g); see also Tex. R. App.
P. 33.1(a)(1)(A). At no point did Jordan argue that the exclusion of the marijuana and
DFPS evidence violated his constitutional confrontation rights. Although he did
assert that such evidence would have shown Stokes’s bias, this legal basis was
insufficiently specific to inform the trial court that his objection was founded on the
constitutional right to confront Stokes. See Golliday, 560 S.W.3d at 670–71; Reyna v.
State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005); Smallwood, 471 S.W.3d at 614.
Accordingly, his admissibility arguments based on his constitutional confrontation
rights were not preserved for our review.
To the extent Jordan’s appellate arguments are not based on the Confrontation
Clause but on the Rules of Evidence, his contentions that he should have been
allowed to show that Stokes feared DFPS involvement and to ask Stokes if she had
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used marijuana the day of the assault are similarly not preserved. Other than obliquely
asking Stokes whether she had used “substances” other than alcohol that day, which
Stokes denied, Jordan did not question Stokes about her marijuana use. And although
Jordan unsuccessfully attempted to question Scudder about Stokes’s possible fear of
DFPS involvement, he did not try to question Stokes on the issue. Further, the jury
heard that police policy was to contact DFPS if children were present during an
assault. Jordan’s evidentiary arguments were, therefore, procedurally defaulted. See
Tex. R. App. P. 33.1(a)(1), (2) (requiring, to preserve error, that record show the
complaint was made to the trial court and the trial court ruled on the request); Templin
v. State, No. 02-17-00229-CR, 2019 WL 311145, at *3 (Tex. App.—Fort Worth
Jan. 24, 2019, no pet.) (mem. op., not designated for publication) (“[T]he same or
similar evidence was admitted elsewhere over no objection; thus, Templin failed to
preserve error on this issue . . . .”); Loredo v. State, 32 S.W.3d 348, 351 (Tex. App.—
Waco 2000, pet. ref’d) (holding complaint regarding exclusion of testimony on cross-
examination not preserved because “the trial court was never asked to rule on the
admissibility of the prior allegation as impeachment to show motive or bias for
testifying falsely”).
And Jordan has failed to show that the trial court abused its discretion under
the Rules of Evidence by refusing to allow him to question Stokes about whether she
had marijuana in her bedroom. When Jordan attempted to question Stokes about the
found marijuana, the trial court found that this line of inquiry was not relevant.
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Indeed, no evidence at that point indicated that Stokes had been under the influence
of marijuana. As such, any evidence that Stokes possessed marijuana was not relevant
to a fact of consequence and would have been impermissible character evidence. See
Tex. R. Evid. 401, 403, 608(b); Norrid v. State, 925 S.W.2d 342, 346–47 (Tex. App.—
Fort Worth 1996, no pet.).
We overrule Jordan’s first issue.
III. LAY OPINION
Jordan next asserts that the trial court abused its discretion by allowing Gilbert
to testify that he believed Jordan’s claim of self-defense was not “truthful or honest.”
See Tex. R. Evid. 701; Taylor v. State, 774 S.W.2d 31, 34 (Tex. App.—Houston [14th
Dist.] 1989, pet. ref’d). As Jordan asserted at trial, he argues this “truthfulness”
testimony invaded the province of the jury to determine credibility.
But Jordan has failed to preserve this error for our review. Immediately before
the State asked Gilbert whether he believed Jordan was truthful or honest about his
claim of self-defense, Gilbert testified that he did not “believe” self-defense was
involved:
Q. Did you [Gilbert] make a determination as . . . to who was the
primary aggressor?
A. I did.
Q. Who was that?
A. It would be [Jordan].
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....
Q. At any time during your interactions with [Jordan] on
November 20th, 2018, did he admit to doing anything more than
defending himself?
A. No.
Q. Did he ever admit to striking Ms. Stokes?
A. No.
Q. Now, [Jordan] was also checked out by EMS?
A. Yes.
....
Q. . . . Anything about their observations or treatment of him
that would cause you to believe that he was defending himself?
A. No.
Jordan did not object to this prior questioning, which also involved Gilbert’s opinion
as to Jordan’s truthfulness; thus, he failed to preserve his appellate argument. See Tex.
R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1)(A); Ethington v. State, 819 S.W.2d 854,
858 (Tex. Crim. App. 1991); Hunt v. State, No. 14-07-00286-CR, 2008 WL 850134, at
*3–4 (Tex. App.—Houston [14th Dist.] Apr. 1, 2008, pet. ref’d) (mem. op., not
designated for publication).2
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Even if preserved, Gilbert testified that his opinion was based on his
experience and training as a police officer and on his observations of Jordan at the
scene. Accordingly, Gilbert’s testimony was sufficiently based on his personal
knowledge, allowing him to testify to his objective perception of the offense that led
to his lay opinion regarding Jordan’s culpable mental state. See Fairow v. State,
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Jordan also argues that the trial court abused its discretion by allowing Gilbert
to testify that he believed Jordan had committed “[a]ssault bodily injury family
violence.” Even if the admission of this evidence were an abuse of discretion, Jordan
did not object to this testimony and, therefore, did not preserve any possible error for
our review. See Tex. R. Evid. 103(a)(1)(A).
We overrule issue two.
IV. CONCLUSION
Jordan procedurally defaulted his constitutional complaints and his evidentiary
complaints. Accordingly, we affirm the trial court’s judgment. See Tex. R. App. P.
43.2(a).
/s/ Lee Gabriel
Lee Gabriel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: September 24, 2020
943 S.W.3d 895, 899 (Tex. Crim. App. 1997). And even if the trial court’s admission
of Gilbert’s testimony were preserved and an abuse of discretion, the error would be
harmless because there was sufficient evidence introduced apart from Gilbert’s lay
testimony that sufficiently supported the jury’s implied rejection of Gilbert’s assertion
of self-defense, including Stokes’s statements that Jordan had been the aggressor. See,
e.g., Larrinaga v. State, No. 02-14-00199-CR, 2015 WL 4730710, at *5 (Tex. App.—Fort
Worth Aug. 6, 2015, pet. ref’d) (mem. op., not designated for publication); Clark v.
State, 305 S.W.3d 351, 357–58 (Tex. App.—Houston [14th Dist.] 2010), aff’d on other
grounds, 365 S.W.3d 333, 335 (Tex. Crim. App. 2012).
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