DAVID WAYNE BRUMFIELD v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice Campbell 1

In 2005, appellant pled guilty to the offense of injury to a child, a first-degree felony.   The trial court deferred finding appellant guilty, placed him on ten years' community supervision, and assessed a $3,000 fine.   In 2010, the State filed a motion to proceed to adjudication.   Appellant pled true to the State's motion.   The trial court adjudicated him guilty and assessed his punishment at ten years' imprisonment and a $5,000 fine.   In a sole point of error, appellant contends the trial court abused its discretion when it overruled his objections to the State's cross-examination of his fiancee, Danelda Austin, regarding his state of mind at the time his infant child's arm was broken.   Finding harmless error, we affirm.

Initially, the State claims appellant has waived any perceived error.   The State contends appellant raised an objection to speculation at trial, but now on appeal he relies on rule of evidence 602.   See Tex.R. Evid. 602 (prohibiting witnesses from testifying without evidence showing the witness has personal knowledge of the matter).   The State claims that urging one theory at trial and another on appeal is tantamount to a waiver of error.   See Tex.R.App. P. 33.1(a).   We conclude the State is arguing a distinction without a difference.

The prosecutor inquired of Austin what appellant's state of mind might have been when his child was injured, some five years before the motion to adjudicate was heard.   Appellant's objection that the questions called for speculation by Austin was overruled by the trial court.   Austin testified she did not even know appellant when the child was abused, and therefore could not answer the prosecutor's questions.   Appellant's speculation objection, though not artful, implied that Austin could not testify about appellant's state of mind at the time of the offense because she did not know him then.   This objection was in essence a complaint that Austin did not have “personal knowledge of the matter.”   See Tex.R. Evid. 602;  see also Willliams v. State, No. 05–03–00987–CR, 2004 WL 2804851, at *4 (Tex.App.—Dallas, Nov. 29, 2004, no pet.) (not designated for publication);  Spruiell v. State, No. 05–01–1414–CR, 2003 WL 21508441, at *5 (Tex.App.—Dallas, July 2, 2003, pet.ref'd) (not designated for publication).   The State's reliance on Joseph v. State, No. 05–09–00818–CR, 2011 WL 9802, at *5 (Tex.App.—Dallas, Jan. 4, 2011, pet.ref'd) (not designated for publication), and Tyner v. State, No. 05–02–01372–CR, 2003 WL 21962447, at *6 (Tex.App.—Dallas, Aug. 18, 2003, no pet.) (not designated for publication) is unpersuasive.   In both of those cases, the argument on appeal was a violation of Rule 701, rather than Rule 602.   See Tex.R. Evid. 701 (requiring opinion testimony to be rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony or the determination of a fact in issue).   Although there are similarities between rule 602 and rule 701, see e.g., Fairow v. State, 943 S.W.2d 895, 898 (Tex.Crim.App.1997) (holding that the perception requirement of rule 701(a) is consistent with the personal knowledge requirement of rule 602), the helpfulness component in rule 701(b) would not necessarily tie a rule 701 claim on appeal with a trial objection that is grounded in speculation.   We conclude the error was properly preserved under rule 602 by appellant's speculation objection.   See Tex.R. Evid. 602;  Tex.R.App. P. 33.1(a).

Standard of Review

In considering a trial court's ruling on the admissibility of evidence, an appellate court must determine whether the trial court abused its discretion.   Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002).   An appellate court must uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case.  Id. An appellate court must review the trial court's ruling in light of what was before the trial court at the time the ruling was made.  Id. Overruling appellant's speculation objection in this case does not constitute an abuse of discretion unless the trial court's decision lies “outside the zone of reasonable disagreement.”  Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App.2007).

Application of Law to Facts

In this case, the prosecutor clearly attempted to get Austin to speculate about how the injuries to appellant's child might have occurred:

[Prosecutor]:  So I'm asking you if he doesn't have a drug problem and you don't think he has an anger problem, how could that [injury to appellant's child in 2004] happen?

[Austin]:  I wasn't with him at the time so I cannot answer that.

[Prosecutor]:  There must have been something going on to make him do such a thing, don't you think?

[Counsel]:  And I'll object to speculation, calls for speculation.

[The Court]:  Overruled.

[Prosecutor]:  There's got to be some explanation for it, right?

[Austin]:  I don't think he was angry.

[Prosecutor]:  Okay.

[Austin]:  I think he was frustrated.

It is obvious from this record that the prosecutor was attempting to get Austin to speculate specifically about appellant's state of mind at the time his child was injured.   Though Austin attempted to deflect the prosecutor's questions, the prosecutor persisted.   The trial court was in a position to stop the questions, but instead overruled appellant's objection of “speculation” or “calls for speculation.”   Thus Austin was obliged to speculate that appellant was probably not angry, but was likely frustrated.   Appellant argues in his brief that rule 602 was violated, and we agree.   There was no evidence before the trial court that Austin had personal knowledge of appellant's state of mind, and any testimony by Austin concerning same was pure speculation.   See Tex.R. Evid. 602.   The trial court's decision to allow the testimony was outside the zone of reasonable disagreement, but our analysis does not end there.

Error in the admission of testimony of this nature is non-constitutional error subject to review under Texas Rule of Appellate Procedure 44.2(b).  See Russell v. State, 155 S.W.3d 176, 181 (Tex.Crim.App.2005) (violations of evidentiary rules are non-constitutional error).   Pursuant to rule 44.2(b), any non-constitutional error that does not affect appellant's substantial rights must be disregarded.   See Tex.R.App. P. 44.2(b).  Overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.   See Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998).

In this case, after Austin's testimony, counsel put appellant on the witness stand apparently for the purpose of ameliorating the punishment.   Regarding the child's injury, appellant testified he was “going through some things with my child's mother at the time, and I just—I was frustrated at the time․”  Appellant testified he handled the child too roughly and accidentally hurt the child.   However, “other such evidence” was received without objection in the earlier “plea” portion of the bifurcated adjudication proceeding.   At the beginning of the adjudication hearing, appellant admitted he entered a guilty plea to the indictment in this case which alleged he committed the crime of injury to a child intentionally and knowingly.   There is no allegation in the indictment concerning negligent, accidental, or reckless conduct.   Austin's only testimony relevant to this issue was that appellant was frustrated perhaps, though she was hardly sure of that.

Appellant's testimony dovetailed with Austin's.   He testified he was frustrated and that the injury to the child was accidental.   So the sum total of the testimony of both was that appellant was frustrated and the injury accidental.   Because this issue had already been precluded by appellant's plea of guilty to the indictment and judicial confession, this Court finds no violation of appellant's substantial rights flowing from Austin's testimony.   See Tex.R.App. P. 44.2(b).  Appellant's sole point of error is overruled.

The judgment of the trial court is affirmed.

FOOTNOTES

FN1. The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment..  FN1. The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment.

CHARLES F. CAMPBELL JUSTICE, ASSIGNED