Affirmed as Moditied; Opinion Filed Novemhcr 14, 2012.
In The tnurt nf Appiata .Fift1i )hürirt nf Irxa at a1Ia No. 05-i 1-00410-CR No. 05-11-00411-CR No. 05-1 1-00412-CR
THOMAS FRIZZEEL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause Nos. F09-41465-X, F10-41270-X, and F10-63575-X
OPINION Before Justices Moseley, Fillmore, and Myers Opinion By Justice Myers
Appellant pleaded guilty to aggravated assault involving family violence by causing serious
bodily injuiy using a deadly weapon,’ assault involving family violence by impeding breathing, 2 and
aggravated assault with a deadly weapon. 3 He was sentenced to three concurrent terms of five years
in prison. In two points of error, he contends (I) the trial court abused its discretion by allowing the
Cause number 05-1 1-00410-CR; trial court cause number F09-41 465-X.
2 Cause number 05-1 1-00411-CR; trial court cause number Fl 0-41 270-X.
Cause number 05-I 1-00412-CR: trial coui cause number F10-63575-X. complainant to testify regarding matters that v crc. according to appellant, outside of her personal
knowledge (2) the court’s judgment in cause 05— I 1 —0041 I —CR should he modified to reflect the
correct statute under which appellant was convicted As moditied. we affirm the trial court’s
judgments.
DISCUSSION
Complainant ‘s Testimony
In his first point, appellant contends the trial court abused its discretion by allowing the
complainant to testify regarding matters that were, according to appellant, outside of the
complainant’s personal knowledge.
During the punishment hearing, the complainant testified that she had been in a relationship
with appellant since 2000, when she was fifteen years old. They were married in February of 2004,
and a suit for their divorce was filed in December of 2009. At the time of trial in March of 2011,
they were separated and their divorce case was still pending.
In October of 2009. the complainant and appellant got into an argument regarding a telephone
call the complainant made to a woman she believed her husband “was having a relationship with.”
Appellant became upset and strangled the complainant until she lost consciousness. When the
complainant regained consciousness, appellant strangled her again until she lost consciousness. The
choking left the complainant with red marks on her neck and broken blood vessels around her eyes.
The complainant was eventually able to leave the house and contact the police. She then
went back to the house to get her two children, and they went to a shelter. After staying in the shelter
for approximately one to two weeks, appellant moved out of their house, and the complainant and
the children went back to the house.
In March of2OlO, appellant accused the complainant of cheating on him, and he choked her. lhe complainant did not lose consciousness on this occasion, but her neck was sore the following
day. Latcr that month, when the complainant went to appellant’s residence to pick up her children.
appellant accused her ol cheating on him and followed her in his vehicle when she drove away.
Appellant pursued the complainant and repeatedly “rammed” her car. While trying to escape, the
complainant collided with another vehicle and “totaled her car. The complainant testified that she
was trying to get away from appellant because she was afraid he would kill her if she stopped.
The complainant also testified that appellant had started an escort service after he lost hisjob.
and that he asked the complainant to participate. Appellant recruited up to five or six women for the
escort service, which was in business for about one year. The complainant worked for the escort
service both before and after she separated from appellant, until she finally stopped working for him
in April of 2010. By the time of trial, the complainant was no longer involved in the escort service
because she “didn’t want to live that kind of life anymore.” The coniplainant said she still feared
appellant and would not feel safe it he were placed on probation because she believed he had “a lot
of resentment towards me, and I think that he would try to hurt me.”
On cross-examination, the complainant agreed that her relationship with appellant had been
“rocky” as far back as 2000, when she was still in high school. The complainant also admitted that
she had started some of the fights she had with appellant, but she insisted she was “okay” when she
and appellant were not together.
On redirect examination, the complainant testified that she and appellant continued to talk
to one another between the two incidents, which took place in October of 2009 and March of 2010,
principally because of their two children but also because the complainant worked for appellant at
the escort service “[ojff and on.” She also testified that appellant was jealous of her relationships
with other men and had installed some sort of ‘spyware” on her computer “so that he could read all
—3— of my emails.” I)el’ense counsel twice ohectcd that the prosecutor was leading the witness, hut
otherwise rlid not object to this testimony. On re—cross—examination, defense counsel challenged the
complainant’s testimony that appellant was jealous and had been reading her c—mails. On further
redirect, the prosecutor asked the complainant “about the thct that the l)cfendant was jealous even
though he was essentially your pimp. Can you explain that to the Judge? ihe complainant replied
that appellant
had separated this business and me having a personal relationship or moving on to a significant relationship, and I think he separated that. And it was so different to him that he became jealous if he thought that I was starting a—
Defense counsel then objected, “[Tlhis is pure speculation on her part. Unless she has actual
personal knowledge ot’ that.” The trial court overruled the objection.
An appellate court reviews a trial court’s ruling on the admission of evidence for an abuse
of discretion. Wa/lees v. Slate. 247 S.W.3d 204. 217 (Te. Crim. App. 2007). Only if the court’s
decision lies “outside the zone of reasonable disagreement will we conclude an abuse of discretion
occulTed. 1(1.
Appellant argues the trial court abused its discretion by allowing the complainant to testify
(I) that appellant was jealous of her relationships with other men, and (2) that appellant installed
some sort of spyware on her computer, because the record shows, according to appellant, that the
witness did not have the requisite personal knowledge to testify about either matter. Appellant cites
rule 602 of the Texas Rules of Evidence. which prohibits a witness fi’om testifying about matters
without sufficient evidence to support a finding that the witness has personal knowledge of the
matter. TEx. R. EvID. 602. The State responds that the error was not preserved, the court did not
abuse its discretion, and that the error, if any, was harmless.
In order to argue on appeal that a trial judge erred by admitting evidence, the error must be
-4- preserved through a proper objection. Martinez v. State, 98 S.W,3d 189, 193 (Tex, Crim. App.
2003); Ethington v, State, 819 S,W,2d 857, 858 (Tex. Crim, App.199l). A properobjection is one
that is specific and timely. Martinez, 98 S.W.3d at 193: Ethington, 819 S.W.2d at 858.
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Affirmed as Moditied; Opinion Filed Novemhcr 14, 2012.
In The tnurt nf Appiata .Fift1i )hürirt nf Irxa at a1Ia No. 05-i 1-00410-CR No. 05-11-00411-CR No. 05-1 1-00412-CR
THOMAS FRIZZEEL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause Nos. F09-41465-X, F10-41270-X, and F10-63575-X
OPINION Before Justices Moseley, Fillmore, and Myers Opinion By Justice Myers
Appellant pleaded guilty to aggravated assault involving family violence by causing serious
bodily injuiy using a deadly weapon,’ assault involving family violence by impeding breathing, 2 and
aggravated assault with a deadly weapon. 3 He was sentenced to three concurrent terms of five years
in prison. In two points of error, he contends (I) the trial court abused its discretion by allowing the
Cause number 05-1 1-00410-CR; trial court cause number F09-41 465-X.
2 Cause number 05-1 1-00411-CR; trial court cause number Fl 0-41 270-X.
Cause number 05-I 1-00412-CR: trial coui cause number F10-63575-X. complainant to testify regarding matters that v crc. according to appellant, outside of her personal
knowledge (2) the court’s judgment in cause 05— I 1 —0041 I —CR should he modified to reflect the
correct statute under which appellant was convicted As moditied. we affirm the trial court’s
judgments.
DISCUSSION
Complainant ‘s Testimony
In his first point, appellant contends the trial court abused its discretion by allowing the
complainant to testify regarding matters that were, according to appellant, outside of the
complainant’s personal knowledge.
During the punishment hearing, the complainant testified that she had been in a relationship
with appellant since 2000, when she was fifteen years old. They were married in February of 2004,
and a suit for their divorce was filed in December of 2009. At the time of trial in March of 2011,
they were separated and their divorce case was still pending.
In October of 2009. the complainant and appellant got into an argument regarding a telephone
call the complainant made to a woman she believed her husband “was having a relationship with.”
Appellant became upset and strangled the complainant until she lost consciousness. When the
complainant regained consciousness, appellant strangled her again until she lost consciousness. The
choking left the complainant with red marks on her neck and broken blood vessels around her eyes.
The complainant was eventually able to leave the house and contact the police. She then
went back to the house to get her two children, and they went to a shelter. After staying in the shelter
for approximately one to two weeks, appellant moved out of their house, and the complainant and
the children went back to the house.
In March of2OlO, appellant accused the complainant of cheating on him, and he choked her. lhe complainant did not lose consciousness on this occasion, but her neck was sore the following
day. Latcr that month, when the complainant went to appellant’s residence to pick up her children.
appellant accused her ol cheating on him and followed her in his vehicle when she drove away.
Appellant pursued the complainant and repeatedly “rammed” her car. While trying to escape, the
complainant collided with another vehicle and “totaled her car. The complainant testified that she
was trying to get away from appellant because she was afraid he would kill her if she stopped.
The complainant also testified that appellant had started an escort service after he lost hisjob.
and that he asked the complainant to participate. Appellant recruited up to five or six women for the
escort service, which was in business for about one year. The complainant worked for the escort
service both before and after she separated from appellant, until she finally stopped working for him
in April of 2010. By the time of trial, the complainant was no longer involved in the escort service
because she “didn’t want to live that kind of life anymore.” The coniplainant said she still feared
appellant and would not feel safe it he were placed on probation because she believed he had “a lot
of resentment towards me, and I think that he would try to hurt me.”
On cross-examination, the complainant agreed that her relationship with appellant had been
“rocky” as far back as 2000, when she was still in high school. The complainant also admitted that
she had started some of the fights she had with appellant, but she insisted she was “okay” when she
and appellant were not together.
On redirect examination, the complainant testified that she and appellant continued to talk
to one another between the two incidents, which took place in October of 2009 and March of 2010,
principally because of their two children but also because the complainant worked for appellant at
the escort service “[ojff and on.” She also testified that appellant was jealous of her relationships
with other men and had installed some sort of ‘spyware” on her computer “so that he could read all
—3— of my emails.” I)el’ense counsel twice ohectcd that the prosecutor was leading the witness, hut
otherwise rlid not object to this testimony. On re—cross—examination, defense counsel challenged the
complainant’s testimony that appellant was jealous and had been reading her c—mails. On further
redirect, the prosecutor asked the complainant “about the thct that the l)cfendant was jealous even
though he was essentially your pimp. Can you explain that to the Judge? ihe complainant replied
that appellant
had separated this business and me having a personal relationship or moving on to a significant relationship, and I think he separated that. And it was so different to him that he became jealous if he thought that I was starting a—
Defense counsel then objected, “[Tlhis is pure speculation on her part. Unless she has actual
personal knowledge ot’ that.” The trial court overruled the objection.
An appellate court reviews a trial court’s ruling on the admission of evidence for an abuse
of discretion. Wa/lees v. Slate. 247 S.W.3d 204. 217 (Te. Crim. App. 2007). Only if the court’s
decision lies “outside the zone of reasonable disagreement will we conclude an abuse of discretion
occulTed. 1(1.
Appellant argues the trial court abused its discretion by allowing the complainant to testify
(I) that appellant was jealous of her relationships with other men, and (2) that appellant installed
some sort of spyware on her computer, because the record shows, according to appellant, that the
witness did not have the requisite personal knowledge to testify about either matter. Appellant cites
rule 602 of the Texas Rules of Evidence. which prohibits a witness fi’om testifying about matters
without sufficient evidence to support a finding that the witness has personal knowledge of the
matter. TEx. R. EvID. 602. The State responds that the error was not preserved, the court did not
abuse its discretion, and that the error, if any, was harmless.
In order to argue on appeal that a trial judge erred by admitting evidence, the error must be
-4- preserved through a proper objection. Martinez v. State, 98 S.W,3d 189, 193 (Tex, Crim. App.
2003); Ethington v, State, 819 S,W,2d 857, 858 (Tex. Crim, App.199l). A properobjection is one
that is specific and timely. Martinez, 98 S.W.3d at 193: Ethington, 819 S.W.2d at 858. To be
timely, the objection should, if possible, be made before the evidence is actually admitted.
Ethington, 819 S.W,2d at 858. “If this was not possible, the defense must have objected as soon as
the objectionable nature of the evidence became apparent.” Id. A defendant also is required to
object each time the evidence is offered unless (1) defense counsel obtains a running objection; or
(2) defense counsel lodges the objection and obtains a ruling to the objectionable evidence in a
hearing requested by defense counsel outside of the jury’s presence. Id. at 858-59.
In this case, however, appellant did not object regarding speculation or rule 602 when the
complainant first testified on redirect about the two matters in question. Appellant’s trial counsel
also cross-examined the complainant regarding both matters without lodging an objection. Appellant
does not offer any justification for the late objection, which never mentioned rule 602, and he neither
obtained a running objection nor requested a hearing. As a result, the error, if any, was not preserved
for appellate review.
Furthermore, even if appellant preserved error and the trial court erred by admitting the
evidence, any resulting error was harmless. Improper admission of evidence is non-constitutional
error that we disregard unless the error affected an appellant’s substantial rights. TEx. R. APP. P.
44.2(b); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). Under rule 44.2, an
appellate court may not reverse for nonconstitutional error if the court, after examining the record
as a whole, has fair assurance that the error did not have a substantial and injurious effect or
influence in determining a defendant’s conviction or punishment. SeeAnderson v. State, 182 S.W.3d
914, 919 (Tex. Crim. App. 2006); Aguirre—Mata v. State, 125 S.W.3d 473, 474 (Tex. Crim. App.
—5— 2003). When conducting a rule 44.2(b) harm analysis, overwhelming evidence ofa defendant’s guilt
is one factor to be considered. Moth/a i’. State, 78 S.W.3d 352, 357 (Tex. Corn. App. 2002).
In the instant case, the effect of the complained—oftestimonywas not substantial or injurious.
Appellant pleaded guilty to the charged offenses, admitting he committed two aggravated assaults
and one assault against the complainant, his estranged wife. The complainant testified that appellant
choked her into unconsciousness twice, choked her again on another occasion, and rammed her car
repeatedly, causing her vehicle to collide with another car. The testimony regarding appellant’s
jealousy and spying on the complainant’s computer would not have had a substantial and injurious
effect or influence on appellant’s punishment, given the record in this case. As a result, the error,
if any, was harmless. We resolve appellant’s first point of error against him.
Refi)rmatio,z of.Judgment in Cause 05-11-00411-CR
In his second point, appellant claims that the judgment in cause number 05—I 1—00411—CR,
which was the conviction for assault involving family violence by impeding breathing, should be
reformed to reflect the correct statute of the offense under which appellant was convicted. The
judgment incorrectly states that appellant was convicted in cause 05-1 1-00411-CR of an offense
under section 22.02 of the Texas Penal Code, which is the aggravated assault statute, The record,
however, shows appellant was convicted under § 22.0 1(b)(2)(B), which pertains to assault involving
family violence by impeding breathing or circulation. The State agrees the judgment should be
reformed to reflect the colTect statute. See TEx. PENAL CODE ANN. § 22.0 l(b)(2)(B). This Court has the authority to modify or reform a judgment to make the record speak the
truth when the matter has been called to its attention. TEx. R. API>. P. 43.2(b); French v. State, 830
S.W.2d 607, 609 (Tex. Crim. App. 1992); Asbeir v. State, 813 S.W.2d 526, 531 (Tex.
App.—Dallas 1991, pet. ref’d). Accordingly, we reform thejudgrnent in cause 05-11-00411-CR to
—6— reilect that the statute for the ottense is 2() I (b)( 2 )( B).
i\s niodi lied, wealhrm the trial courts judgments,
LANA MYERS J (iS liCE Do Not Pubhsh Tix. R .A ii. P. 47 I 10410F,U05 (!.,tuirt nf iprt1i ift1! )iitrirt vf ixti at Ja11n
JUDGMENT THOMAS FRIZZELL, Appellant Appeal from the Criminal District Court No. 6 of Dallas County, Texas. (Tr.Ct.No. F09- No. 051 l-004l0-CR V. 41465-X). Opinion delivered by Justice Myers. Justices THE STATE OF TEXAS. Appellee Moselev and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRi1ED.
Judgment entered November 14, 2012.
LANA MYERS JUSTICE Qniirt nf 1pit15 FifiI! Thtrirt Lii 1XZt!i it JZt11t5
JUDGMENT THOMAS ERIZZELL, Appellant Appeal from the Criminal District Court No. 6 of Dallas County, Texas. (Tr.Ct.No. FlO No. 05l U0041 I-CR V. 41 270-X). Opinion delivered by Justice Myers, Justices THE STATE OF TEXAS, Appellee Moseley and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is REFORMED as follows:
The portion of the judgment entitled “Statute for Offense” is modi fLed to show the stItutL tot thL otlense a SLctlon 2 01 (h)(2)( B) ot thL I x s PLn l C ode
As modified, the judgment is AFFIRMED.
Judgment entered November 14. 2012.
LANA YERS JUSTICE 0 (nurt tif Appithi FiftI! DiIrirt uf trxas Lit
JUDGMENT THOMAS FRIZZELL, Appellant Appeal from the Criminal District Court No. 6 of Dallas County, Texas, (Tr.Ct.No. FlO No. 05-I 1-00412-CR V. 63575-X). Opinion delivered by Justice Myers, Justices THE STATE OF TEXAS, Appellee Moseley and Filimore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
LANA YERS JUSTICE