Court of Appeals of Texas, Sixth District, Texarkana
Submitted: February 7, 2017
Appeal from the 202nd District Court Bowie County, Texas
Trial Court No. 15F0208-202
Morriss, C.J., Moseley and Burgess, JJ.
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. 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
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.
No Abuse of Discretion in Limiting Opening
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
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.
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)).
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.
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.
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.
Paroline's Complaints Were Not Preserved
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. 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
"[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)).
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).
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.
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.
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 ...