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Paroline v. State

Court of Appeals of Texas, Sixth District, Texarkana

March 30, 2017

KAREN MAY PAROLINE, Appellant
v.
THE STATE OF TEXAS, Appellee

          Date Submitted: February 7, 2017

         On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 15F0208-202

          Before Morriss, C.J., Moseley and Burgess, JJ.

          OPINION

          Bailey C. Moseley Justice

On the night of March 21, 2015, Karen May Paroline used Sherman Prewitts' debit card to fill her automobile with gasoline at Love's Truck Stop in Leary, Texas, and used the card to make purchases and cash withdrawals from his bank account. The State alleged that Prewitt had only authorized her to use the card to put in $5.00 worth of gasoline in her car, but that she exceeded Prewitt's authority. She is alleged to have used his debit card to fill her automobile with gasoline, draw money from the bank account, and make unauthorized purchases at multiple places by duping him into believing that she was attempting to use his card to reimburse his account. The evidence elicited by the State suggested that Paroline then abandoned Prewitt at the Texarkana Walmart, some distance from where the two had begun. As a result, Paroline was indicted for exploitation of a disabled individual.[1] A Bowie County jury found Paroline guilty, and after punishment was enhanced for two prior felony convictions, the jury assessed her punishment at fifty-five years' imprisonment.[2]

         On appeal, Paroline asserts that the trial court erred (1) by improperly limiting her opening statement, (2) by admitting Prewitt's medical records, (3) by allowing Prewitt's social worker and Prewitt's mother to testify in violation of Rule 701 of the Texas Rules of Evidence, and (4) by admitting evidence in the punishment hearing of an extraneous offense in violation of Article 37.07 of the Texas Code of Criminal Procedure. In addition, Paroline challenges the sufficiency of the evidence showing that Prewitt is a disabled individual. We find (1) that the trial court did not abuse its discretion in limiting Paroline's opening statement, (2) that Paroline failed to preserve her asserted errors regarding the admission of Prewitt's medical records, the testimony of his social worker, and the testimony of his mother, (3) that sufficient evidence supports the jury's finding that Prewitt is a disabled individual, and (4) that any error in the admission of extraneous-offense evidence during the punishment phase did not affect Paroline's substantial rights. We affirm the judgment of the trial court.

         I. No Abuse of Discretion in Limiting Opening Statement

         In her first point of error, Paroline complains that the trial court erred by improperly limiting her opening statement when it prevented her from referring to a sexual relationship between Paroline and Prewitt. This, she argues, prevented her from informing the jury of their prior relationship and allowing the jury to assess the veracity of the State's witnesses. In addition, she asserts that this prevented her from making a meaningful opening statement in violation of Article 36.01 of the Texas Code of Criminal Procedure and her right to due process.

         Initially, we note that "[t]he right to make an opening statement is a statutory right and not a constitutional imperative or mandate." Moore v. State, 868 S.W.2d 787, 788-89 (Tex. Crim. App. 1993) (citing Dunn v. State, 819 S.W.2d 510, 524 (Tex. Crim. App. 1991)). The right to make an opening statement is contained in Article 36.01 of the Texas Code of Criminal Procedure. Id. at 789; see Tex. Code Crim. Proc. Ann. art. 36.01(a)(5) (West 2007). Since it is a valuable right, denial of a timely request to present an opening statement may constitute reversible error. Moore, 868 S.W.2d at 789. However, when the defendant makes an opening statement, "the character and extent of such statement are subject to the control of the trial court . . . ." Norton v. State, 564 S.W.2d 714, 718 (Tex. Crim. App. [Panel Op.] 1978) (quoting McBride v. State, 7 S.W.2d 1091 (Tex. Crim. App. 1928)). The proper function of the defendant's opening statement is to state "the nature of the defenses relied upon and the facts expected to be proved in their support." Tex. Code Crim. Proc. Ann. art. 36.01(a)(5); see also Norton, 564 S.W.2d at 718; Guillory v. State, 397 S.W.3d 864, 868 (Tex. App.-Houston [14th Dist.] 2013, no pet.). Further, it is incumbent on the defendant to exercise good faith in spelling out in opening statements what she anticipates the evidence will show. See Norton, 564 S.W.2d at 718.

         We review the trial court's rulings on opening statements for abuse of discretion. See Donnell v. State, 191 S.W.3d 864, 867 (Tex. App.-Waco 2006, no pet.). It is an abuse of discretion only if the trial court's ruling is outside the "zone of reasonable disagreement." Id. (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g)).

         In this case, at a pretrial hearing, the trial court granted the State's motion in limine and forbade any evidence of sexual conduct between Paroline and Prewitt before a hearing on its admissibility was held outside the presence of the jury. When Paroline advised the court that it would come up in her opening statement, the court clarified that she could refer to their prior dealings with each other, just not to sexual conduct between the two. Before opening statements, Paroline reiterated her objection to the court's ruling constraining any mention in her opening statement of a possible sexual relationship between her and Prewitt, and the court reaffirmed its ruling.

         In her opening statement, Paroline told the jury that they would hear evidence that she and Prewitt were not strangers, that there was a relationship between Prewitt and her, and that the evidence would show that Prewitt intentionally misidentified her to authorities investigating the situation because they were friends. At trial, although Prewitt was asked multiple times by both the State and Paroline if he knew Paroline before the night of the incident, he denied knowing her each time he was asked. Further, Paroline presented no evidence to show that there was any sexual contact or relationship between Paroline and Prewitt.

         Since the trial court allowed Paroline to advise the jury that the evidence would show that she and Prewitt were friends and had a relationship, and since there was no evidence later produced at trial of any sexual relationship between them, we cannot say that the trial court's limitation on her opening statement was an abuse of discretion. See Norton, 564 S.W.2d at 718. We overrule Paroline's first point of error.

         II. Paroline's Complaints Were Not Preserved

         In her second point of error, Paroline complains that the trial court erred in admitting Prewitt's medical records through the testimony of his social worker, Laura Shackelford, under Rule 701 of the Texas Rules of Evidence.[3] In addition, Paroline complains that the trial court allowed Shackelford to testify that Prewitt's behavior was consistent with an individual having autism. Paroline complains in her third point of error that the trial court erred in admitting the testimony of Prewitt's mother, Beth Prewitt (Beth), that Prewitt was autistic, in violation of Rule 701. However, Paroline failed to preserve these complaints.

         Since "[p]reservation of error is a systemic requirement on appeal, " we are directed to address it on our own motion, even if the parties have not raised it. Ford v. State, 305 S.W.3d 530, 532-33 (Tex. Crim. App. 2009) (citing Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)); Reece v. State, 474 S.W.3d 483, 487 (Tex. App.-Texarkana 2015, no pet.). Unless an issue has been preserved for appeal, we should not address its merits. Reece, 474 S.W.3d at 487 (citing Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh'g) (per curiam)).

         To preserve error for our review, the record must "demonstrate (1) the complaining party made a timely and specific request, objection, or motion; and (2) the trial judge either ruled on the request, objection, or motion, or he refused to rule and the complaining party objected to that refusal." Id. (quoting Haley v. State, 173 S.W.3d 510, 516 (Tex. Crim. App. 2005) (citing Tex.R.App.P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003))). Also, "the objection must be specific, timely, and made each time inadmissible testimony or evidence is offered, " unless the party "either obtains a running objection or requests a hearing outside the presence of the jury." Id. at 488 (citing Haley, 173 S.W.3d at 516-17).

         Further, the "point of error on appeal must comport with the objection made at trial." Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

[U]nder Rule 33.1, the party's objection unless it is apparent from the context, must be specific enough to "let the trial judge know what he wants [and] why he thinks himself entitled to it, and [to] do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it."

Reese, 474 S.W.3d at 488 (quoting Resendez v. State, 306 S.W.3d 308, 312-13 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992))); see also Tex. R. App. P. 33.1(a)(1)(A).

         In this case, Prewitt's medical records were admitted as the business records of Community Healthcore, through its custodian of records, Cynthia Edwards. The only objections Paroline made to the admission of the medical records were that the records were testimonial and that their admission violated her right to confront and cross-examine the doctor making any findings that appeared in the records. Later, in a hearing outside the presence of the jury, Paroline objected on the same basis of the right of confrontation to the testimony of Shackelford to the extent that she was relying on the medical records. After her clearly delineated objection was overruled, Paroline requested, and was granted, a running objection to Shackelford's testimony. In addition, Paroline requested, and was granted, a running objection to the content of the medical records, this objection being likewise based on an alleged violation of her right of confrontation. However, Paroline never complained to the trial court that the medical records were inadmissible under Rule 701, the objection she now argues on appeal. Therefore, her complaint as to the admission of the medical records on appeal does not comport to her objection in the trial court. Consequently, we find that Paroline has not preserved this complaint on appeal. See Reece, 474 S.W.3d at 488.

         During Shackelford's testimony, the State asked her if, based on her contact with Prewitt, the behavior she observed was consistent with an individual having autism. Paroline objected that the testimony was outside Shackelford's expertise. After the objection was overruled, Shackelford testified in the affirmative. Paroline complains on appeal that the admission of the testimony was error since Shackelford had not been qualified as an expert. Paroline fails to take into account that when Shackelford was again asked whether Prewitt's behavior was consistent with him being autistic, she again answered in the affirmative, this time without objection. Since Paroline neither objected to the subsequent ...


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