NO. 07-05-0364-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 24, 2006
______________________________
GEORGE S. MANNING, M.D., APPELLANT
V.
LUIS ORNELAS, APPELLEE
_________________________________
FROM THE 286TH DISTRICT COURT OF COCHRAN COUNTY;
NO. 03-08-3824; HONORABLE HAROLD PHELAN, JUDGE
_______________________________
Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
MEMORANDUM OPINION
George S. Manning, M.D., appellant, has filed a motion to dismiss this appeal
because he no longer wishes to pursue it based on the full and final satisfaction and
release of the trial court's judgment. No decision of this Court having been delivered to
date, we grant the motion. Accordingly, the appeal is dismissed. Tex. R. App. P.
42.1(a)(1). No motion for rehearing will be entertained and our mandate will issue
forthwith.
Mackey K. Hancock
Justice
t appellant's consent to
search the vehicle. Appellant gave consent. The trooper found marijuana,
methamphetamine and various items of drug paraphernalia in the vehicle. A small bag
containing methamphetamine was located in a flip phone found in the driver's side door
pocket. The largest amount of methamphetamine was located in a bag in Angel's purse.
Both appellant and his wife were arrested.
Appellant was charged by indictment with possession of a controlled substance,
methamphetamine, with intent to deliver, in an amount of four grams or more but less than
200 grams. (1) Contrary to his plea, the jury found him guilty as charged in the indictment.
Punishment was assessed against appellant at imprisonment for twenty-eight years and
a fine of $5,000. This appeal followed.
Issues
Via three points of error, appellant asserts the trial court erred by allowing evidence,
over his objections, (1) of appellant's extraneous conduct toward his wife, and (2) of
alleged extraneous conduct of appellant and his father regarding the "family business" of
dealing methamphetamine, in violation of Rules 404(b) and 403 of the Texas Rules of
Evidence and the court's order on a motion in limine; and (3) asserts he did not receive
effective assistance of counsel in that trial counsel failed to timely and effectively object to
evidence of his alleged extraneous conduct.
Analysis
Admission of Evidence Regarding Appellant's Violence Against Wife
In appellant's first point of error, he complains the admission of evidence that he
beat Angel, "hurt [her] seriously" and once "put his cigarettes out on [her]" was error
because it constituted evidence of extraneous offenses not admissible under Texas Rule
of Evidence 404(b). His relevance objections to Angel's testimony to these events
preserved his appellate contention of inadmissibility under Rule 404(b). (2) Montgomery v.
State, 810 S.W.2d 372, 387 (Tex.Crim.App. 1990) (op. on reh'g).
Under Rule 404(b), evidence of other crimes, wrongs, or acts is inadmissible to
prove a person's character for the purpose of showing action in conformity therewith. Tex.
R. Evid. 404(b); Montgomery, 810 S.W.2d at 387-88. But such evidence may be
admissible if it has relevance apart from its tendency to show conformity to character. Id.
Admissibility of evidence under Rule 404(b) thus depends on its relevance, that is, its
tendency to make a fact of consequence more or less probable, as well as on the purpose
for which it is offered. Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007) (citing
Johnston v. State, 145 S.W.3d 215, 220 (Tex.Crim.App. 2004)). One proper purpose
under Rule 404(b) for admission of relevant extraneous conduct evidence is to rebut a
defensive theory. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001); Ransom v.
State, 920 S.W.2d 288, 301 (Tex.Crim.App. 1994) (op. on reh'g). The trial court's decision
whether to admit evidence under Rule 404(b) will be upheld on appeal absent an abuse
of discretion. Montgomery, 810 S.W.2d at 391. Thus, we will not intercede as long as the
trial court's ruling was at least within the zone of reasonable disagreement. Id.
On review of the record, we reject appellant's challenge under Rule 404(b) to the
admission of his wife's testimony of his violent acts against her. The record shows that a
part of appellant's trial strategy was to place blame for the presence of the
methamphetamine on his wife. (3) In his counsel's opening statement, he told the jury the
evidence would show Angel sold drugs. He also told the jury evidence would show the flip
phone and the purse containing the drugs were hers, and the car was registered in her
name.
The State's second witness, after its chemist, was Trooper Burtnett. Appellant's
cross-examination of the trooper emphasized Angel's connections with the drugs. After
he asked the trooper to list the circumstances that connected the drugs with appellant,
counsel asked how he knew Angel "just didn't have the stuff on her in her purse in her car
and [appellant] didn't know about it?" The trooper responded, in part, that appellant's
"demeanor toward her was very controlling." (4) He later responded to counsel's question
whether it appeared to him that Angel was afraid, stating, "Not afraid, but very under
control."
Angel was the State's next witness. She denied prior knowledge of the presence
of methamphetamine in the car, saying she first knew of it when her husband "started
pulling something out of his pocket and trying to put it in his cell phone." She testified the
drugs found in her purse were in the car's console between the front seats when they were
stopped, and she hid the bag of drugs in her purse at her husband's instruction. She said
she complied out of fear of her husband.
Appellant's cross-examination of Angel challenged her version of the interaction
between the couple after they were stopped, and specifically challenged her assertion she
was afraid of her husband. The testimony appellant addresses in his first point of error
occurred on the State's redirect examination of Angel. In response to appellant's relevance
objection, the prosecutor argued the testimony was relevant to appellant's control over his
wife, showing why she feared him and "would do what he made her do." We agree.
In a possession case, the State must prove two elements: that the accused
exercised care, control, and management over the contraband; and that the accused knew
the matter possessed was contraband. Martin v. State, 753 S.W.2d 384, 387
(Tex.Crim.App. 1988). One of the ways the State sought to demonstrate appellant's care,
control, and management of the methamphetamine found in Angel's purse was to show
that she hid it there at his direction. That Angel put the drugs in her purse at appellant's
direction is an elemental fact demonstrating appellant's exercise of control over the drugs.
Montgomery, 810 S.W.2d at 387. As noted, Angel testified she had no prior knowledge
of the presence of methamphetamine in the car but followed her husband's instructions
and took possession of the illegal substance during the traffic stop. Evidence she was
motivated by fear of her husband serves to explain her willingness to take such action, and
thus serves to make more probable the fact that she did so. See id. Through cross-examination, appellant challenged her assertion she was afraid of him. The trial court did
not abuse its discretion under Rule 404(b) by concluding Angel's testimony on redirect
examination explaining why she feared her husband had relevance apart from any
tendency to prove he had a propensity for violence toward her. See Ransom, 920 S.W.2d
at 301 (extraneous offenses admissible to rebut defensive theories raised by State's
witness during cross-examination).
Appellant also complains of the State's violation of the motion in limine as part of
his assertion that the trial court erred in permitting evidence of his violence toward Angel. (5)
Appellant's motion in limine sought to limit the State's mention, allusion, or reference to any
extraneous offenses committed by appellant without first discussing such matters before
the court, outside the jury's presence. By his argument on appeal, appellant appears to
rely on a motion in limine to preserve error to the improper admission of testimony.
Generally, a motion in limine will not preserve error to the admission of inadmissible
evidence. Brazzell v. State, 481 S.W.2d 130, 131 (Tex.Crim.App. 1972). See also Geuder
v. State, 115 S.W.3d 11, 14 (Tex.Crim.App. 2003)( trial judge's grant or denial of a motion
in limine is a preliminary ruling only and normally preserves nothing for appellate review).
Remedies available for violation of a motion in limine are with the trial court. Brazzell, 481
S.W.2d at 131. Appellant's failure to properly object to certain evidence in this matter
cannot be cured by relying on the trial court's ruling on the motion in limine. See Brazzell,
481 S.W.2d at 131 (for error to be preserved on appeal with regard to the admission of
inadmissible evidence, objection thereto should be made at the time the evidence is
offered).
In support of his first point of error, appellant also briefly mentions that the
extraneous conduct evidence of which he complains was not included in the State's 404(b)
notice, and makes passing reference to Rule of Evidence 403. Neither contention was
raised at trial; thus neither is preserved for our review. (6) Tex. R. App. P. 33.1; Montgomery,
810 S.W.2d at 388 (relevance objection based on Rule 404(b) is not sufficient to preserve
error regarding Rule 403; further objection based on Rule 403 is required).
We overrule appellant's first point of error.
Evidence Admitted Regarding Appellant's "Family Business"
In appellant's second issue, he contends the trial court erred in permitting evidence
of alleged extraneous conduct of appellant and his father. Appellant specifically complains
of evidence admitted through Angel and appellant's mother, LaVonne Huneycutt, regarding
the "family business" of dealing methamphetamine. We find that appellant made no
objection to the testimony of LaVonne Huneycutt, and that he made no objection to Angel's
testimony on this point. (7) Accordingly, his contentions present nothing for our review. (8) Tex.
R. App. P. 33.1. We overrule appellant's second issue.
Ineffective Assistance of Counsel
In appellant's last point of error, he asserts that his trial counsel's failure to object
timely and effectively to evidence of his extraneous bad acts rendered his counsel's
assistance ineffective. The testimony to which he refers is that of Angel, asserting that
appellant choked her, pulled her hair out, broke her ankle, locked her in rooms, broke her
cheekbone, put pillows over her face, and hit her with "torches," as well as testimony
regarding the alleged extraneous conduct of appellant as a methamphetamine dealer and
engagement in the "family business" of dealing.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as
applied by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57
(Tex.Crim.App. 1986), sets forth the test that must be satisfied to prove an ineffective
assistance of counsel claim. Under the first part of the Strickland test, an appellant must
show that counsel's performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment. Strickland, 466 U.S. at 687; Young v. State, 991
S.W.2d 835, 837 (Tex.Crim.App. 1999). When reviewing a claim of ineffective assistance,
we "must indulge a strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action 'might be considered
sound trial strategy.'" Strickland, 466 U.S. at 689 (internal citation omitted). Under the
second part of the Strickland test, the appellant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different. Id. This part of the test carries "a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance" and the
appellant must overcome this presumption by a preponderance of the evidence. Id.
In applying the Strickland test, an appellate court should not try to second-guess trial
counsel's tactical decisions that do not fall below the threshold of the objective standard
of reasonableness. Id. An individual has a right to effective, not errorless, representation.
Bridge v. State, 726 S.W.2d 558, 571 (Tex.Crim.App. 1986). In determining whether
counsel's assistance is effective, the court must look at counsel's representation of the
defendant as a whole, and not merely at isolated errors. Ex parte Kunkle, 852 S.W.2d
499, 505 (Tex.Crim.App. 1993). An allegation of ineffective assistance must be firmly
founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).
Moreover, the representation of the defendant should be viewed from defense counsel's
perspective at trial, and not with 20-20 hindsight. Madden v. State, 911 S.W.2d 236, 241
(Tex.App.-Waco 1995, pet. ref'd).
Appellant contends that his counsel provided ineffective assistance at trial because
he failed to properly object, and thus preserve error, as to the evidence relating to his
violence towards Angel and his involvement in dealing methamphetamine. In our
disposition of appellant's first point of error, we have determined that the objections raised
did not preserve appellant's complaint that his wife's testimony of his acts of violence
toward her were inadmissible under Rule 404(b). Appellant points out his counsel
obviously desired to exclude such evidence because he objected, but failed to do so
properly. Counsel does not render ineffective assistance, however, by failing to preserve
an "error" which is not reversible error. Doyle v. State, 875 S.W.2d 21, 23 (Tex.App.-Tyler
1994, no pet.), citing Johnson v. State, 691 S.W.2d 619, 626 (Tex.Crim.App. 1984). (9) In
our disposition of appellant's first point of error, we also have concluded the trial court did
not err by overruling appellant's relevance objections to Angel's testimony to some of
appellant's acts of violence against her. The acts of violence as to which appellant did not
preserve error were of a similar nature, and were described by Angel during the same line
of questioning on redirect examination by the State. Had appellant raised a proper
objection to that testimony, been overruled, and contended on appeal that admission of
the testimony was error under Rule 404(b), we see no reason why our conclusion would
have been different. Appellant has not shown that the "error" his counsel failed to preserve
for appellate review was reversible error. He has thus failed to show his counsel was
ineffective for a failure to raise a Rule 404(b) objection to the testimony.
With respect to the testimony regarding the "family business" of dealing
methamphetamine, (10) we find that appellant has not overcome the presumption that
counsel's failure to object was not part of a sound trial strategy. As noted, appellant
adopted a strategy at trial of emphasizing his wife's connections to the sale of drugs. His
cross-examination of Trooper Burtnett and of Angel included inquiries, for example, about
her possession of large amounts of cash. He presented the testimony of a Huneycutt
family friend who said he had personal knowledge of Angel's sale of methamphetamine
and who on cross-examination by the State said he had once purchased the drug from
Angel. Counsel may well have wanted the jury to hear Angel describe her knowledge of
methamphetamine sales. In any event, given appellant's clear trial strategy, we will not
second-guess counsel's tactical decision not to object to the State's questions of her on
that subject.
Lastly, appellant has not shown a reasonable probability that, but for counsel's
unprofessional errors, if any, the result of the proceeding would have been different.
Appellant does not address the testimony of other witnesses, in particular, that of Ramiro
Sanchez. Detective Sanchez' testimony supports appellant's possession of the
methamphetamine and his intent to deliver it. Appellant also ignores the testimony of
Trooper Burtnett supporting appellant's possession of the methamphetamine. Thus, even
if the trial court had ruled that the extraneous conduct of which appellant complains was
inadmissible, appellant has not shown a reasonable probability that the result would have
been different. Appellant's third point of error is overruled. Having overruled each of appellant's three points of error, we affirm the trial court's
judgment.
James T. Campbell
Do not publish.
1. See Tex. Health & Safety Code Ann. § 481.112(d) (Vernon 2001). This is a first
degree felony punishable by imprisonment for life or for any term of not more than 99 years
or less than 5 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.32
(Vernon 2003).
2. However, appellant did not object in similar vein to other extraneous conduct to
which Angel testified. Appellant voiced "leading," "non-responsive," and "no time frame"
objections to testimony that appellant choked Angel, pulled her hair out, broke her ankle,
locked her in rooms, broke her cheekbone, put pillows over her face, and hit her with
"torches." Such objections did not put the trial court on notice that appellant was objecting
pursuant to Rule of Evidence 404(b). Appellant thus failed to preserve error with regard
to those instances of extraneous conduct, and we do not address those instances in our
consideration of appellant's first point of error.
3. The record indicates appellant and his wife were estranged by the time of trial, and
that the State opted not to pursue her prosecution because her counsel convinced the
prosecutor her motion to suppress the drugs found in her purse would be successful.
4. On direct examination, the State inquired of the trooper whether he observed the
interaction between appellant and his wife and whether either of them appeared to "have
influence or control" over the other. He opined, without objection, that appellant had
control over his wife.
5. In arguing that the trial court committed harmful error here, appellant relies on Tate
v. State, 762 S.W.2d 678 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd) for the proposition
that the trial court's admission of extraneous conduct relating to his treatment of Angel was
harmful error. Tate does not aid appellant's arguments. It involved the admission of
extraneous offenses in violation of the trial court's order on a motion to suppress. The
reversal did not rest on preservation of error by a motion in limine.
6. Appellant's notice objection at trial focused on his assertion the State failed to
disclose an alleged "plea deal" with Angel, not a lack of notice under Rule 404(b).
7. LaVonne Huneycutt was a defense witness. She testified she was not aware of
any dealing of drugs by her husband or her son. She also acknowledged she observed
some violence between appellant and Angel and that she had seen bruises on Angel.
8. Appellant again advances the argument that the trial court erred in permitting this
evidence in violation of its order on the motion in limine. As we have noted, an order on
a motion in limine does not preserve an issue on appeal over admissibility of evidence. In
addition, we note the motion in limine granted by the trial court here makes no reference
to the conduct of appellant's father.
9. Similarly, courts have required an appellant claiming counsel was ineffective for
failing to object to demonstrate the trial court would have committed error by refusing to
sustain the objection had it been made. See, e.g., Brown v. State, 6 S.W.3d 571, 575
(Tex.App.-Tyler 1999, pet. ref'd).
10. On redirect, the State asked Angel about appellant's parents, Charles and
LaVonne Huneycutt, and inquired into Angel's drug use, including where she obtained
methamphetamine. Angel responded that appellant's father provided it. When asked
what the "family business" was, Angel replied, "I'm assuming dealing." Angel further
testified that she believed this because unfamiliar people were always coming over and
appellant and his father would be gone for hours to "reup."