APPELLANT v. STATE FROM OF COUNTY

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Court of Appeals of Texas, Waco.

Christie Osborne APPELLANT v. The State of Texas STATE FROM County Criminal Court No. 6 OF Tarrant COUNTY Appellant Christie Osborne appeals her conviction for assault causing bodily injury,2 contending in three points that the evidence is insufficient to disprove her self-defense claim, that the evidence is insufficient to support the trial court's restitution order, and that numerous alleged violations of evidence rules, which appellant did not raise at trial, cumulatively prejudiced her defense.  We affirm.

NO. 02–11–00010–CR

Decided: November 28, 2011

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

MEMORANDUM OPINION1

This case is similar to Denman v. State, 193 S.W.3d 129 (Tex.App.—Houston [1st Dist.] 2006, pet. ref'd).   There, a jury found Denman guilty of aggravated assault, and Denman argued

In her third issue, appellant argues that reversible error was caused by the State's asking “a series of leading questions and questions which called for speculation.”   But appellant acknowledges that she did not object to these questions or to the testimony that resulted from them.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion.  Tex.R.App. P. 33.1(a)(1);  Layton v. State, 280 S.W.3d 235, 238–39 (Tex.Crim.App.2009);  see also Tex.R. Evid. 103(a)(1) (stating that error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and a timely objection or motion to strike appears of record, stating the specific ground of the objection).   Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule.   Tex.R.App. P. 33.1(a)(2);  Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App.2004).   A reviewing court should not address the merits of an issue that has not been preserved for appeal.  Ford v. State, 305 S.W.3d 530, 532 (Tex.Crim.App.2009).  “Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, ․ all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).”  Mendez, 138 S.W.3d at 342.

Appellant has not presented authority establishing that the introduction of speculative testimony or evidence that results from leading questions affects a systemic requirement or violates a waivable-only right.   The court of criminal appeals has consistently held that evidentiary complaints are forfeited for lack of a timely objection, even when those complaints concern the defendant's constitutional rights.   See Saldano v. State, 70 S.W.3d 873, 889–90 (Tex.Crim.App.2002);  see also Lucio v. State, No. AP–76,020, 2011 WL 4347044, at *28 (Tex.Crim.App. Sept. 14, 2011) (holding that by failing to object on constitutional grounds, a defendant forfeited her claim that the admission of evidence violated her Sixth Amendment right to confront witnesses);  Lopez v. State, 482 S.W.2d 179, 182 (Tex.Crim.App.1972) ( “[T]here must be a timely objection to preserve error of illegally obtained evidence.”).   And various courts have applied this rule to complaints about leading questions and the speculative nature of testimony.   See Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App.), cert. denied, 516 U.S. 832 (1995);  Stevens v. State, 671 S.W.2d 517, 521 (Tex.Crim.App.1984);  Wise v. State, 223 S.W.3d 548, 558 (Tex.App.—Amarillo 2007, pet. ref'd).

Appellant argues that her evidentiary contentions are cumulative and fundamental and may be reviewed under the authority of Texas Rule of Evidence 103(d).  See Tex.R. Evid. 103(d) (“In a criminal case, nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court.”).   But rule 103(d) has been applied frugally and only when the admission of evidence renders the defendant's trial fundamentally unfair.  Smith v. State, 961 S.W.2d 501, 505–06 (Tex.App.—San Antonio 1997, no pet.).   Appellant does not cite authority that classifies complaints about the speculative nature of evidence or the leading quality of questions as fundamental under rule 103(d), and we have found none.   Cf. Garner v. State, 939 S.W.2d 802, 807 (Tex.App.—Fort Worth 1997, pet. ref'd) (holding that error was not preserved concerning a stream of leading questions and rejecting the defendant's argument that the trial court's failure to declare a mistrial sua sponte because of leading questions was fundamental error);  Demmings v. State, No. 05–94–00663–CR, 1996 WL 403999, at *2 (Tex.App.—Dallas July 18, 1996, no pet.) (not designated for publication) (holding that a prosecutor's asking questions that called for speculation did not comprise fundamental error);  see also Moore v. State, 935 S.W.2d 124, 130 (Tex.Crim.App.1996) (holding that the admission of hearsay is not fundamental error that may be raised for the first time on appeal), cert. denied, 520 U.S. 1219 (1997).

Because appellant forfeited her complaint under rule of appellate procedure 33.1(a) and because we conclude that the evidentiary complaints made by appellant are not fundamental under rule of evidence 103(d), we overrule her third issue.

Conclusion

Having overruled appellant's issues, we affirm the trial court's judgment.

PANEL:  LIVINGSTON, C.J.;   DAUPHINOT and GABRIEL, JJ.

Tex.R. App. P. 47.2(b)

DELIVERED:  November 23, 2011

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.

FN2. See Tex. Penal Code Ann. § 22.01(a)(1) (West 2011)..  FN2. See Tex. Penal Code Ann. § 22.01(a)(1) (West 2011).

FN3. The facts recited in this section comprise the collective testimony of the State's witnesses.   Appellant provided countervailing facts through her testimony, and we will discuss those facts below in our discussion of appellant's first issue..  FN3. The facts recited in this section comprise the collective testimony of the State's witnesses.   Appellant provided countervailing facts through her testimony, and we will discuss those facts below in our discussion of appellant's first issue.

FN4. Sansom testified that appellant and Aaron each threw punches.   Aaron testified that she did not punch appellant in the face..  FN4. Sansom testified that appellant and Aaron each threw punches.   Aaron testified that she did not punch appellant in the face.

FN5. In the title of her first issue, appellant purports to raise legal and factual insufficiency.   As explained below, the State bears the burden to disprove self-defense beyond a reasonable doubt.   The legal sufficiency standard “is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”  Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010);  see Smith v. State, No. 01–09–00634–CR, 2011 WL 1233367, at *4 (Tex.App.—Houston [1st Dist.] Mar. 31, 2011, pet. ref'd) (applying legal sufficiency principles to a defendant's post-Brooks challenge to a jury's rejection of the defendant's self-defense claim)..  FN5. In the title of her first issue, appellant purports to raise legal and factual insufficiency.   As explained below, the State bears the burden to disprove self-defense beyond a reasonable doubt.   The legal sufficiency standard “is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”  Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010);  see Smith v. State, No. 01–09–00634–CR, 2011 WL 1233367, at *4 (Tex.App.—Houston [1st Dist.] Mar. 31, 2011, pet. ref'd) (applying legal sufficiency principles to a defendant's post-Brooks challenge to a jury's rejection of the defendant's self-defense claim).

FN6. According to appellant, Sansom wanted to maintain contact with her daughters, but Aaron was not comfortable with his relationship with them, and Sansom had therefore planned to end his relationship with Aaron on the weekend that the fight occurred..  FN6. According to appellant, Sansom wanted to maintain contact with her daughters, but Aaron was not comfortable with his relationship with them, and Sansom had therefore planned to end his relationship with Aaron on the weekend that the fight occurred.

FN7. Appellant admitted grabbing Aaron's hair and punching Aaron in the face several times, and appellant conceded that Aaron fell on the floor and dislocated her shoulder..  FN7. Appellant admitted grabbing Aaron's hair and punching Aaron in the face several times, and appellant conceded that Aaron fell on the floor and dislocated her shoulder.

FN8. To the extent that appellant challenges the trial court's restitution order based on a contention that the evidence is insufficient to disprove that she acted in self-defense rather than as the aggressor, we refer to the analysis on appellant's first issue..  FN8. To the extent that appellant challenges the trial court's restitution order based on a contention that the evidence is insufficient to disprove that she acted in self-defense rather than as the aggressor, we refer to the analysis on appellant's first issue.

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