In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-18-00422-CR NO. 09-18-00423-CR __________________
DUSTIN RAY SANDERS, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 9th District Court Montgomery County, Texas Trial Cause Nos. 18-03-02909-CR and 18-05-06810-CR __________________________________________________________________
MEMORANDUM OPINION
Dustin Ray Sanders appeals from two judgments, tried before the same jury,
which found him guilty on two counts of assault, both involving assaults the jury
found were committed against Hannah (his girlfriend).1 In three appellate issues,
1 Hannah is a pseudonym, which we have used to refer to Sanders’ girlfriend to disguise her true identity. See Tex. Const. art. I, § 30(a)(1) (granting crime victims
1 Sanders argues he is entitled to a new trial because the trial court erred by admitting
evidence in the guilt-innocence and in the punishment phases of his trial. We
conclude Sanders’ issues lack merit, so we will affirm.
Background
We first discuss the background of Sanders’ case, presenting the evidence in
the light most favorable to the jury’s verdict.2 The evidence before the jury in the
trial shows that in December 2017, Sanders and Hannah met at a home owned by
Sanders’ aunt, Raquel. 3 Hannah, Sanders, Raquel, and Raquel’s boyfriend were in
the same room in the home when another couple entered the room. When the
additional visitors entered the room, Sanders left without saying why he decided to
leave. A short time later, Sanders called Hannah on her phone, asking whether she
“was going to stay.” Hannah told Sanders she had decided to stay because he left.
After that, Sanders returned to the room, displayed a pistol, and Hannah left with
him because, based on Sanders’ actions, she thought he didn’t want her to remain in
“the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). Sanders’ indictments allege he violated section 22.01(b)(2)(A) and section 22.02(a)(2) of the Texas Penal Code. See also Tex. Fam. Code Ann. § 71.0021(b) (defining dating relationship). 2 See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006). 3 A pseudonym. 2 the room. Eventually, Sanders drove away from Raquel’s house, and Hannah went
back inside.
Later that same night, Sanders sent Hannah a message on her phone.
According to Hannah, in the message, Sanders told her to go over to his home.
Hannah complied, explaining she loved Sanders and thought that, by going to see
him, she “could calm him down[.]” When Hannah arrived, Sanders approached her
car with a rifle. He told Hannah to move over to the passenger’s seat, and he took
the wheel. After entering Hannah’s car, Sanders placed the rifle next to his leg. After
that, the couple drove around several hours while they argued about problems they
were having with their relationship.
Sanders took Hannah back to his home around 6:30 or 7:30 that morning.
Sitting in the driveway in the car, the couple continued to argue. According to
Hannah, Sanders began punching her in the back of her head, grabbed her hair, and
“slamm[ed] [her] head into [her] knees” several times. Hannah testified that while
in the car, Sanders said: “They won’t think it’s funny when they find your body in
the woods.” Hannah testified that she understood Sanders to mean “he was going to
kill [her]” with his gun.
Sanders called his mother, Sherry Kirchner, from the car. Sherry promptly
went to Sanders’ home. After Sherry approached the car, she began questioning
3 Sanders about what had happened. According to Hannah, Sanders once again
grabbed her by the hair and slammed her head into her knees. Sherry testified she
never saw that happen. Sherry told Sanders to get out of the car, and the three of
them began walking toward Sanders’ home. As they were approaching the house,
Sherry, according to Hannah, told her “she was going to get [her] out of there as
soon as she could.” At that point, according to Hannah, Sanders turned around and
pointed the gun at her head. Hannah testified that Sanders said: “[H]e was going to
shoot [her].” Hannah testified that Sherry then stepped between them and told
Sanders: “[I]f you’re going to shoot anybody, you’re going to shoot me.”
Sherry and Hannah stayed at Sanders’ home for several hours after entering
the home. At one point, however, Sherry and Hannah left without taking Sanders
with them. The two women went to a gas station, where they played a video game.
Around noon, Sanders’ employer came to Sanders’ house and picked him up. A short
time later, Hannah drove her car from Sanders’ house to Raquel’s, where she met
her sister. Hannah’s sister then followed Hannah home.
When the prosecutor asked Hannah why she went to Raquel’s after leaving
Sanders’ home, Hanna testified: “Because [Sanders] has threatened my family, and
I did not want to put them in danger if he followed me to my house.” Following up
on that answer, the prosecutor asked Hannah: “When you say he’s threatened your
4 family, what are you referring to?” Hannah responded: “He has threatened to burn
my mom’s house down twice, and he has told me that he was going to go over there
and drop bodies[.]” At that point, Sanders’ attorney objected, claiming he “thought
it was clear that if we’re going into extraneous and all these kinds of allegations, that
we were going to approach.” The trial court overruled Sanders’ objection, thereby
allowing the jury to consider Hannah’s testimony about the threats Hannah described
Sanders directed at her parents.
Analysis
Guilt-Innocence Evidence
Extraneous Offense Testimony
We will first address Sanders’ second issue, in which he complains the trial
court erred when it allowed Hannah to testify that Sanders had threatened others in
her family. In appeals claiming the trial court erred by admitting or excluding
evidence, the reviewing court reviews a ruling the trial court made regarding the
evidence for abuse of discretion. 4 Under that standard, the reviewing court will not
disturb the trial court’s ruling if it was correct under any theory of law that applies
to the ruling made in the trial.5
4 Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (citing Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005)). 5 Id. (citing Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. 1982)). 5 In his appeal, Sanders argues that Hannah’s testimony about the threats he
made toward others in her family was inadmissible because it was not relevant to
whether he committed the assaults at issue in his appeal. He claims the evidence of
his extraneous bad acts—the threats Hannah testified that he made toward members
of her family—should have been excluded because the State introduced them to
show that, when committing the assaults, he acted in accord with his character for
threatening others. In response, the State suggests that Hannah’s testimony about the
threats was admissible because Sanders opened the door to the testimony by
suggesting, during opening statement, that the reason Hannah failed to report the
alleged assaults to the police sooner than she did was that Hannah had filed criminal
charges that resulted in Sanders’ indictment because she was motivated by a desire
for revenge due to the couple’s breakup.
The record reflects that during his opening statement, Sanders’ attorney said:
[Hannah] has many issues. And we’re going to talk about these. And you’re going to get to know her. And one of her issues is she’s just not truthful. And she is being vindictive about all of this.
Along with the above statement, Sanders’ attorney made several remarks suggesting
Hannah had filed a false report when she reported the assaults to the police. For
example, Sanders’ attorney, in his opening statement, suggested the evidence during
6 the trial would show that Hannah’s conduct after leaving with Sanders’ mother was
inconsistent with her subsequent claim that she had been the victim of a recent crime.
On appeal, Sanders argues that Hannah’s testimony about the threats was not
relevant to proving he committed the assaults and that it was more prejudicial than
probative to proving any facts of consequence in his trial. Under Rule 402 of the
Texas Rules of Evidence, relevant evidence is admissible unless a statute or rule
provides otherwise.6 Under Rule 404(a), a party may not use evidence of a person’s
character or character trait at trial “to prove that on a particular occasion the person
acted in accordance with the character trait.” 7
Generally, Rule 404(b) of the Rules of Evidence prohibits a party from
introducing evidence about another party’s bad acts or conduct when the extraneous
bad acts being proven are not the subject of the conduct at issue in the trial. 8 But the
prohibition that exists in Rule 404(b) to admitting evidence about a party’s character
is not absolute, as the Rule contains several exceptions. 9 And to be sure, even the
6 Tex. R. Evid. 402. 7 Id. 404(a)(1). 8 Id. 404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”). 9 Id. 404(b)(2) (allowing trial courts to admit evidence of extraneous crimes or bad acts when relevant to proving the defendant’s “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident” on a matter being tried). 7 exceptions in the Rule are not exhaustive. 10 In its brief, the State argues that one of
the exceptions to Rule 404(b) allows parties to introduce evidence of an otherwise
unrelated bad act that reveals a party’s character trait when the opposing party,
during the defendant’s trial, opens the door to such evidence and makes it relevant
to an issue in dispute. Here, the State argues that Sanders’ attorney opened the door
in opening statement by suggesting that Hannah’s delay reporting the assaults
showed that she was lying about them. Based on its suggestion that by raising the
issue of why Hannah delayed reporting the assault, the State argues that Sanders
opened the door to Hannah’s right to explain why she did not immediately report the
assaults.11
Under Texas law, while “[a] defensive opening statement is not itself
evidence, the statement does inform the jury and the State of the nature of the defense
to be raised and the State may rebut this anticipated defensive evidence in its case-
in-chief.”12 The trial court could have reasonably decided that questioning why
Hannah failed to report Sanders for assaulting her sooner than she did, Sanders
10 Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991) (op. on reh’g). 11 Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). 12 Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016); see also Powell v. State, 63 S.W.3d 435, 439 (Tex. Crim. App. 2001) (noting the State may rebut the theory of defense raised by the defendant in his trial by using evidence to show the defendant committed other relevant crimes, wrongs, or bad acts). 8 opened the door to allowing Hannah to explain the reasons that she delayed accusing
Sanders of assaulting her. In the trial, Hannah testified the delay occurred because
Sanders had threatened to harm members of her family earlier.13 We conclude the
trial court did not abuse its discretion by allowing Hannah to rebut Sanders’
suggestion in opening statement so the jury could consider whether to accept
Hannah’s explanation for the delay rather than the one suggested by Sanders’
attorney. 14
Next, we address Sanders’ argument claiming Hannah’s testimony about the
threats was more prejudicial than probative to any facts of consequence at issue in
his trial. Under Rule 403 of the Texas Rules of Evidence, trial courts may exclude
evidence, even when relevant, if the trial court finds the probative value of the
evidence is outweighed by the danger that admitting it is unfairly prejudicial to a
party involved in the trial.15 Generally speaking, evidence that has relevance is
viewed as being more probative than prejudicial.16 And when reviewing a trial
13 See Tex. R. Evid. 404(b)(2) (allowing a party to use character evidence when relevant to issues involving a person’s motive). 14 See Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (explaining why evidence of an extraneous bad act must have relevance beyond its character conformity value to be relevant and admissible for that purpose during the defendant’s trial). 15 Tex. R. Evid. 403. 16 Santellan, 939 S.W.2d at 169. 9 court’s decision admitting evidence, we must uphold the ruling the trial court made
unless the ruling to admit falls outside the zone of reasonable disagreement. 17 To
review evidentiary rulings, we consider whether the record shows the trial court
balanced the probative value of the evidence against its danger of unfair prejudice
when it admitted the evidence in the trial.18 We also weigh whether the ruling the
trial court made to admit the evidence was arbitrary or capricious. 19
Generally, to evaluate a defendant’s objection that the probative value of the
evidence was more prejudicial than probative, courts examine four factors:
• The probative value of the evidence; • The potential that evidence about the extraneous bad act or wrong has to impress the jury in some irrational and indelible way; • The time it took to develop the evidence of the extraneous bad act or wrong; and • The proponent’s need to develop the evidence of the extraneous bad act or wrong in the trial.20
We have already explained why the evidence about the threats Sanders made
were relevant, since Hannah’s testimony allowed the jury to consider Hannah’s
account explaining why she did not report Sanders to police sooner than she did.
Since the jury had the right to accept Hannah’s testimony as a reasonable explanation
17 Montgomery, 810 S.W.2d at 392. 18 Id. 19 Id. 20 See Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000). 10 for her delay, we conclude Hannah’s testimony about it was unlikely to impress the
jury in an irrational and indelible way. For instance, when Hannah explained why
she drove to Raquel’s home (instead of going to the police) after leaving Sanders’
home, she testified: “I did not want to put my family in danger by going to my house
where he could follow me.” It also took very little time for the State to develop the
testimony to allow Hannah to explain her delay. Moreover, given Sanders’ claim
that the delay showed that Hannah was lying about the assaults, Hannah had the right
to offer an explanation and the jury had the right to decide whether the explanation
she offered was reasonable. The State also needed the evidence, since Hannah was
the only eyewitness who testified that Sanders assaulted her during the guilt-
innocence phase of her trial, as Sanders raised questions in the trial about whether
she was being truthful.
We conclude the trial court did not abuse its discretion by overruling Sanders’
objections to Hannah’s testimony about the threats. For that reason, we overrule
Sanders’ first issue.
Punishment Evidence
Mental Health Records
Next, we address Sanders’ first issue, in which he argues the trial court abused
its discretion by refusing to admit records from three healthcare facilities into
11 evidence during the punishment phase of his trial.21 We review a trial court’s
decision admitting or excluding evidence in a trial’s punishment phase under an
abuse-of-discretion standard. 22 We will not disturb the ruling the trial court made
absent an abuse of discretion. 23
The records Sanders sought to introduce contain information suggesting the
records are from three healthcare facilities, the University of Texas Harris County
Psychiatric Center, Tri-County MHMR Services, and Southwest Medical Group.
Sanders tried to lay the predicate to have the records admitted into evidence through
Emily Daniel, Montgomery County’s Mental Health Court Services Case Manager.
Daniel testified she acquired the records from the facilities based on an authorization
Sanders signed so that he could have reviewed the records to prepare for his trial.
When Sanders offered the records into evidence at trial, however, the State objected
to them, arguing that Sanders had not laid a sufficient predicate to gain their
admission based on the requirements in Rule 803(6), which is the business records
exception to the hearsay rule.
21 Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008) (explaining that rulings admitting or excluding evidence are reviewed upon appeal for abuse of discretion). 22 See Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). 23 Beham, 559 S.W.3d at 478; McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007). 12 When the State argued its objection, the prosecutor noted that Daniel did not
work for the healthcare facilities that created the records and suggested she did not
know the policies and procedures followed at those facilities in creating and
maintaining their respective records. The trial court sustained the objection, so the
jury never considered the exact information that is in the records in the trial.
On appeal, Sanders suggests the trial court abused its discretion by excluding
the records from evidence for two reasons. First, he argues that Daniel’s testimony
established the records were business records of the facilities that sent her the
records. Second, Sanders argues that, by excluding the records, the trial court
violated his constitutional right to a fair punishment hearing because his attorney
could have used the information in the records to argue he should be given a shorter
sentence.
The business records rule, Rule 803(6) of the Texas Rules of Evidence,
allows trial courts to admit a business record into evidence if the party offering the
record proves five things:
(A) the record was made at or near the time by – or from information transmitted by – someone with knowledge; (B) the record was kept in the course of a regularly conducted business activity; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by an affidavit or unsworn declaration that complies with Rule 902(10); and 13 (E) the opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.24
Under Rule 803(6), a business record, even when created by another entity, may be
admissible if the record has become the primary record of an underlying transaction
relied on by the other entity as a substitute for having its own record. 25
Here, Sanders argues that Daniel was qualified to establish the records were
business records and as such admissible under the business records exception, Rule
803(6). Yet Daniel’s testimony shows that she never testified the Montgomery
County Mental Health Court considers healthcare provider records it secures for
defendants involved in litigation to be the Mental Health Court’s primary record.26
And while Sanders points out that Rule 803(6) does not require the custodian of a
business record to be the person who created the record or to be employed by the
business that created the record,27 the party offering the record must still establish
the witness knows the record was made at or near the time reflected in the record
24 Tex. R. Evid. 803(6). 25 Riddle v. Unifund CCR Partners, 298 S.W.3d 780, 782 (Tex. App.—El Paso 2009, no pet.). 26 Instead, Daniel testified on cross-examination that she did not know what the practices were of the facilities that created the records and that she did not know what practices they followed to maintain them. 27 Tex. R. Evid. 803(6)(D) (allowing the predicate to be laid through the testimony of the custodian of the records or by “another qualified witness”). 14 and made from information acquired by someone who has knowledge of what the
record contains.28 Daniel’s testimony does reflect she testified to these facts.29
Finally, Sanders contends the trial court violated his right to a fair punishment
hearing by excluding the records from the evidence in his trial. But when Sanders
was before the trial court, he never objected to the trial court’s ruling on the basis
that its ruling deprived him of his constitutional rights. Instead, he merely argued the
records were admissible as business records under Rule 803(6).
We conclude Sanders failed to properly preserve his complaint that he was
deprived of a constitutional right because he failed to object to the ruling on that
basis in his trial. 30 By failing to raise the argument in the trial court and then by
bringing it up for the first time in his appeal, Sanders waived his arguments that
claim the trial court denied his constitutionally protected right to receive a fair trial.31
28 Id. 803(6)(A). 29 Id. 30 Tex. R. App. P. 33.1 (preserving error for appellate review requires the complaining party to show that he presented his complaint to the trial court in a timely request, objection, or motion and that the trial court ruled on the request). 31 See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (explaining the record must show that the claim being made in the appeal is one that the appellant brought to the trial court’s attention during the trial); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding the appellant waived his due process claims to the evidence the State presented in the defendant’s trial by failing to make that claim during the trial). 15 Gang Identification Card
In Sanders’ third issue, he argues the trial court erred by admitting a gang
identification card, created by the Montgomery County Sheriff’s Office, into
evidence because admitting the gang card exhibit violated his right to confront the
witnesses the State used against him in his trial.32 The State marked the gang
identification card as Exhibit 26. The exhibit reflects the Montgomery County
Sherriff’s Office identified Sanders as a member of the gang Aryan Brotherhood of
Texas. The second page of the exhibit contains a checklist, comprised of eight items.
Most boxes by the items in the list are not marked, but the testimony in the trial
shows that the Sheriff’s Office used the checklist in the form as part of the procedure
it followed to identify whether someone who has been jailed belongs to a gang.
Sanders’ appellate arguments focus on one of the items in the eight-item
checklist, which has a box that was filled in with an “x.” The text next to that box
states: “Identification of the individual as a criminal street gang member by a reliable
informant or individual.” Sanders contends the line next to this box in the exhibit
was testimonial and that the trial court admitted the exhibit containing the box
32 U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]”). 16 marked with the “x” in violation of his right to confront the witnesses the State had
used against him in his trial.
In response, the State argues that Sanders failed to lodge a Confrontation
Clause objection that would have alerted the trial court to his complaint about the
information next to the box marked with the “x.” According to the State, the
objection Sanders raised in the trial to the exhibit concerned whether Ben Nichols,
the Montgomery County Sheriff’s Office employee the State used to authenticate
Exhibit 26, was the person who filled out the information that is in the form. Thus,
the State concludes: “Nothing about [Sanders’] objection would have alerted the trial
court to [Sanders’] complaint on appeal about the single line regarding the
informant’s corroboration within the nineteen-page exhibit.”
We agree. The argument Sanders presents in his appeal does not comport with
the objections that he made to Exhibit 26 in his trial.33 “In determining whether a
complaint on appeal comports with a complaint made at trial, we look to the context
of the objection and the shared understanding of the parties at the time.” 34 When a
party fails to object to an alleged constitutional error in the trial and complains about
33 See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). 34 Clark, 365 S.W.3d at 339. 17 the error for the first time in his appeal, the error is one that the reviewing court will
generally determine was not properly preserved for review.35
Here, Nichols’ testimony reflects the trial court believed Nichols when he
testified that he is the person who prepared Exhibit 26. When it became apparent in
the trial that Sanders’ attorney questioned whether Nichols prepared the exhibit, the
prosecutor asked Nichols who prepared it. Nichols also explained that he is the
person that gathers information on individuals placed in jail in discharging his duties
to the Sheriff’s Office, which include identifying and documenting “gang members
that come within the [jail.]” When the State offered Exhibit 26 into evidence,
Sanders objected, claiming that because Nichols was not the person who authored
the exhibit, asserting that as a result, admitting the exhibit would violate his rights
to confront the witnesses the State was using against him in his trial. But the
objection that Sanders made focused the court and parties on whether Nichols
gathered the information in the exhibit, and nothing about the discussion related to
the objection Sanders made in the trial court would have alerted anyone that Sanders
was complaining about one of the boxes within the form indicating that Nichols
35 Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990); Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010). 18 acquired some of the information he included in the form from a confidential source
in the jail.36
In our view, the objection Sanders lodged to the exhibit failed to alert the trial
court to the complaint he makes here, particularly since the entry he complains about
is found on a single line in a multiple-page document. Sanders never pointed out that
item to the trial court as the basis of his objection to the exhibit during his trial.
Instead, Sanders’ objection and the discussion that ensued about it reflects that
Sanders’ attorney, the prosecutor, and the trial court all shared an understanding that
Sanders was objecting because he believed (mistakenly) that Nichols was not the
person who gathered the information and assembled it into the form.37 In his appeal,
Sanders has not pursued that argument, likely given Nichols’ testimony and the trial
court’s implied finding that Nichols is the person who gathered the information and
then typed it into the exhibit.
We conclude Sanders failed to preserve the argument he relies on in issue
three for our review in the appeal. For that reason, issue three is overruled.38
36 Tex. R. App. P. 33.1. 37 See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (“To avoid forfeiting a complaint on appeal, the party must ‘let the trial judge know what he wants, why he thinks he is entitled to it, and [he must] do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.’”). 38 See Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). 19 Conclusion
We hold Sanders’ issues either lack merit or were not properly preserved for
our review. Accordingly, the trial court’s judgment is
AFFIRMED.
_________________________ HOLLIS HORTON Justice
Submitted on August 17, 2020 Opinion Delivered January 27, 2021 Do Not Publish
Before Golemon, C.J., Kreger and Horton, JJ.