In re A.F.

895 S.W.2d 481
CourtCourt of Appeals of Texas
DecidedMarch 15, 1995
DocketNo. 03-93-00653-CV
StatusPublished
Cited by34 cases

This text of 895 S.W.2d 481 (In re A.F.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re A.F., 895 S.W.2d 481 (Tex. Ct. App. 1995).

Opinion

BEA ANN SMITH, Justice.

A Bell County jury found that appellant A.F., a juvenile, had engaged in delinquent conduct by attempting to commit capital murder. See Tex.Fam.Code Ann. §§ 53.045(a)(6), 54.03(a), (c) (West Supp. 1995). The trial court sentenced appellant to twenty-five years’ commitment in the Texas Youth Commission with a transfer to the Texas Department of Criminal Justice — Institutional Division, and made an affirmative finding that a firearm was used in the com[483]*483mission of the delinquent conduct. See id. §§ 54.04(d)(3), (g). Appellant advances ninety-three points of error, the majority of which allege that the trial court abused its discretion by (1) admitting in evidence portions of a social history report at the disposition hearing; (2) allowing the state to reopen its case-in-chief after resting; and (3) admitting in evidence a witness statement without a proper limiting instruction. Appellant’s remaining point of error challenges the sufficiency of the evidence supporting the trial court’s finding that a firearm was used during the commission of the delinquent conduct. We will reform the juvenile court’s disposition order and affirm the judgment of delinquent conduct.

FACTUAL BACKGROUND AND DISCUSSION

In the early afternoon of April 25, 1993, appellant and D.M.1 entered a convenience store in Killeen, Texas. The youths eventually went to the cashier’s counter and purchased a soft drink. The proprietor, Yong Wan Pak, dropped a dime while making change for the purchase. As Pak reached down to pick up the coin, D.M. shot him in the face with a .25 caliber pistol. As Pak fell to the ground, his shoulder pushed the cash register drawer shut. The youths fled the scene empty-handed, and were apprehended later that day.

All but one of appellant’s points of error ask us to conclude that the trial court abused its discretion in some aspect of A.F.’s adjudication or disposition hearings. A trial court abuses its discretion only when it acts in an unreasonable and arbitrary manner, or when it acts without reference to any guiding principles. Beaumont Bank, N.A v. Bullet, 806 S.W.2d 223, 226 (Tex.1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). This Court may not reverse for abuse of discretion merely because we disagree with a decision of the trial court. Bullet, 806 S.W.2d at 226; Downer, 701 S.W.2d at 242.

Appellant claims in his first and second points of error that the trial court abused its discretion by admitting in evidence a witness statement without a contemporaneous limiting instruction and without an adequate limiting instruction in the jury charge. The statement in question was made by Henry Quinones on the day of the offense; his statement and testimony largely concerned his interaction with appellant and D.M. that day. When Quinones’s testimony at the hearing varied from his prior statement, the State attempted to impeach his testimony with portions of his statement. Quinones then indicated that he did not voluntarily make the statement and that the statement was not in his words.2

Later in the adjudication hearing, the State called Officer Dennis Baldwin of the Killeen Police Department to impeach Qui-nones’s assertion that the statement was involuntary and inaccurate. When the State sought to introduce the statement itself, appellant objected and requested a limiting instruction. The court declared a recess and, after hearing arguments from counsel, concluded that the statement would be admitted to show the voluntariness of the statement. When the jury returned, the court admitted in evidence a redacted version of the statement and overruled appellant’s objection to its admission, but did not give a limiting instruction. Appellant did not obtain a ruling on his previous request for a limiting instruction and did not request such an instruction once the statement was admitted. The court subsequently denied appellant’s request to include in the jury charge a limiting instruction regarding the statement itself.

[484]*484Appellant claims that Texas Rule of Civil Evidence 105(a) required the trial court to provide a limiting instruction.3 However, appellant failed to comply with that rule’s requirement that the request for a limiting instruction be made when the evidence is admitted. See Tex.R.Civ.Evid. 105(a); McNiel v. State, 757 S.W.2d 129, 186 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd) (stating that Texas Rule of Criminal Evidence 105(a)4 provides for limiting instruction only at time evidence is admitted). An objection to or request for an instruction in the jury charge is not sufficient to preserve error if no limiting instruction is requested when the evidence is admitted. Id. Thus, the trial court had no obligation under Rule J.05(a) to provide a limiting instruction for Quinones’s statement. Appellant’s first and second points of error are overruled.

Appellant alleges in his fourth and fifth points of error that the trial court abused its discretion by allowing the State to reopen its case-in-chief after resting. Texas Rule of Civil Procedure 270 provides in pertinent part that “at any time the court may permit additional evidence to be offered where it clearly appears to be necessary to the due administration of justice.” Tex. R.Civ.P. 270. This decision is within the sound discretion of the trial court. Word of Faith World Outreach v. Oechsner, 669 S.W.2d 364, 366-67 (Tex.App.-Dallas 1984, no writ). In determining whether to grant a motion to reopen, the trial court considers whether (1) the moving party showed due diligence in obtaining the evidence; (2) the proffered evidence is decisive; (3) reception of such evidence will cause undue delay; and (4) granting the motion will cause an injustice. Id.

After hearing argument on the issue, the trial court concluded that the proffered evidence “may be decisive [and] that no undue delay in the trial will result upon granting the Motion to Reopen and that the Motion to Reopen will not work an injustice on this juvenile respondent.” Although the court made no finding of due diligence, that fáetor “is merely one of several factors to be considered” by the trial court in ruling on a motion to reopen. Id. Appellant argues that none of the Word of Faith factors was present. However, this Court may not substitute its judgment for a decision made within the trial court’s sound discretion. Butter, 806 S.W.2d at 226. In light of the trial court’s explicit findings, and mindful that the court’s discretion in this matter “should be liberally exercised in the interest of permitting both sides to fully develop the case in the interest of justice,” we cannot say that the trial court abused its discretion in allowing the State to reopen. See Word of Faith, 669 S.W.2d at 367. Points of error four and five are overruled.

Appellant’s points of error six through ninety-three concern the probation officer’s “social history” report admitted in evidence at the disposition hearing.

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