Court of Appeals of Texas, Second District, Fort Worth
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY. TRIAL COURT JUDGE: HON. RALPH H. WALTON, JR.
FOR APPELLANT: E. MARK PILAND, GRANBURY, TX.
FOR STATE: ROBERT T. CHRISTIAN, DISTRICT ATTORNEY & PATRICK D. BERRY, ASSISTANT DISTRICT ATTORNEY, HOOD COUNTY DISTRICT ATTORNEY'S OFFICE, GRANBURY, TX.
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ. GARDNER, J., filed a dissenting opinion.
TERRIE LIVINGSTON, CHIEF JUSTICE.
In two points that concern the trial court's admission of evidence over his objections, appellant Clinton Ray Sanders appeals his felony conviction and ten-year sentence for assault against someone with whom he had a dating relationship. We affirm.
In October 2012, appellant was dating Krystle, who was living with her sister and appellant's nephew. One night that month, appellant and Krystle went to see appellant's brother, Roy. Appellant, Krystle,
and Roy drank alcohol together at Roy's residence before driving Krystle's car to a bar. At the bar, appellant, Krystle, and Roy all drank beer. They left the bar at around midnight.
On their way to Krystle's sister's house, Krystle heard appellant mumble something under his breath, stopped the car in the middle of a roadway, and said something to him. Appellant responded by hitting Krystle's left eye with a closed fist. Roy, who was sitting in the back seat, put his hand around appellant and asked appellant what he was doing. Appellant got out of the car, opened the door to the back seat, punched Roy, and walked away. Roy's head began bleeding.
Krystle and Roy traveled to Krystle's sister's house. Krystle's sister told Krystle to go to a hospital, and she did so. While there, Krystle met with nurses, doctors, and a sheriff's deputy. The deputy took photographs of Krystle's eye, which had become swollen and discolored. Krystle and Roy went to the sheriff's office a few days after the assault to give statements. Photographs taken at that time showed continued swelling and bruising on Krystle's eye along with blood stains in Krystle's car.
Upon appellant's arrest, he agreed to give an interview concerning Krystle's assault allegation. During the interview, he admitted that he had been to a bar with Krystle and Roy, that he had become intoxicated on the same night, and that he had gotten into an argument with Krystle that night. But appellant said that he did not know about the source of Krystle's black eye and did not remember hitting her.
A grand jury indicted appellant with assaulting Krystle. The indictment alleged that appellant had been previously convicted of assault against a member of his family or household. Appellant retained counsel, elected the jury to assess his punishment if he was convicted, filed a sworn application for community supervision, and pled not guilty. After receiving the parties' evidence and arguments, the jury found appellant guilty. In the punishment phase of the trial, the State proved that appellant had several prior misdemeanor convictions, and appellant produced testimony from his son and his daughter. The jury assessed appellant's punishment at ten years' confinement without recommending community supervision, and the trial court sentenced him accordingly. Appellant brought this appeal.
The Admission of Extraneous Offense Evidence in the Punishment Phase
In his first point, appellant argues that the trial court erred during the punishment phase of his trial when it allowed the State to introduce evidence of a fifteen-year-old " unprosecuted sexual assault allegation against [a]ppellant by a [twelve-year-old girl] who now denies it ever happened." We review a trial court's admission of evidence over a defendant's objection for an abuse of discretion. Sandone v. State, 394 S.W.3d 788, 791 (Tex. App.--Fort Worth 2013, no pet.); see Moreno v. State, 1 S.W.3d 846, 861 (Tex. App.--Corpus Christi 1999, pet. ref'd) (" The trial court has broad discretion in determining admissibility of evidence at the punishment phase of trial." ). An abuse of discretion
occurs when a trial court's decision is so clearly wrong as to lie outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g); Sandone, 394 S.W.3d at 791.
Appellant called his daughter to testify in the punishment phase of the trial. On direct-examination, the daughter testified, among other facts, that she had not seen appellant engage in family violence, that appellant had become depressed and had started drinking when he divorced his wife, and that appellant had various physical problems that impacted his ability to work. At the end of her direct-examination testimony, the daughter asked the jury to place appellant on community supervision.
At the beginning of its cross-examination, the State asked appellant's daughter about a written statement that she had made concerning appellant in 1998, when she was twelve years old. When the State offered the statement for admission, appellant objected on the grounds that he had not received notice of it and that its admission would be more prejudicial than probative. Although appellant's daughter proclaimed outside of the jury's presence that the statement was " a lie," the trial court overruled appellant's objection and admitted the ...