John Mark Bass v. State

• Court: Court of Appeals of Texas
• Decided: December 13, 2017
• Docket: 09-17-00306-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-17-00306-CR ____________________

JOHN MARK BASS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 17-05-05540-CR

MEMORANDUM OPINION

In an open plea agreement, Appellant John Mark Bass pleaded guilty to the

third-degree felony offense of assault against a family member and pleaded “true”

to four enhancement paragraphs as alleged in the indictment. See Tex. Penal Code

Ann. 22.01(b) (West Supp. 2017).1 The trial court sentenced Bass to thirty years in

prison. In his sole appellate issue, Bass argues that the trial court erred by allowing

1 We cite to the current version of the statute as the subsequent amendments do not affect the disposition of this appeal. 1 an officer to testify during the punishment hearing regarding the speed at which Bass

was driving. We affirm.

After Bass pleaded guilty to the third-degree offense of assault causing bodily

injury and “true” to four enhancement paragraphs in the indictment, the trial court

held a sentencing hearing. At the sentencing hearing, A.B. testified that on August

30, 2016, while she was in a dating relationship with Bass, he slapped her twice

during an argument. A.B. called 9-1-1 and law enforcement responded to A.B.’s call.

According to A.B., she told the dispatcher what had happened and A.B. informed

the dispatcher that Bass was in her vehicle. A recording of the 9-1-1 call and

photographs depicting A.B.’s injuries were admitted into evidence. Montgomery

County Deputy Joshua Brown testified that he became involved in the case when he

saw Bass, whom he had previously apprehended in 2013 for stealing candy bars

from Wal-Mart, driving a vehicle that Deputy Brown “was looking for, in the

neighborhood [Bass] was supposed to be in,” and traveling towards Deputy Brown.

Deputy Brown testified that he turned his vehicle around and activated his patrol car

lights and sirens. According to Deputy Brown, Bass “sped up[,]” turned down

several streets, drove down a driveway and behind a house, and then the car was

abandoned in a wooded lot.

On direct examination, Deputy Brown testified to the following:

2 Q. . . . [A]bout how fast was [Bass] going?

A. The speed limit is 35. I know my video -- I’m pretty sure I was somewhere around 60 or something.

[Defense counsel]: Judge, I’m going to object to speculation.

THE COURT: Overruled.

Q. [Prosecution]: About how fast?

A. In my video I was somewhere -- 60 and 65. The vehicle was still pulling away from me.

Deputy Brown testified that Bass exited the vehicle, fled into a wooded lot, and was

finally detained with the assistance of approximately fifteen officers and the K-9

unit.

Deputy Jeffery Durrenberger with the Montgomery County Sheriff’s Office

testified regarding a prior incident. He testified he was dispatched in 2013 to

investigate an assault on a female, and he took photographs of the female who

allegedly had been assaulted by Bass. He testified that he could not remember the

female victim’s name, and that the photographs depicted bruising underneath her

arm and around her lower torso. He testified he subsequently sent a report to the

district attorney’s office for charges to be filed against Bass. Another detective

testified that he was a deputy in 2004, when he was dispatched to a disturbance

where he found Bass in the front yard admittedly under the influence of drugs and

3 reporting that he had been shot. According to the detective, he called EMS but EMS

found no gunshot wound on Bass. According to the detective, he made contact with

the complainant that had called dispatch and she reported that Bass had banged on

her door, stated someone was chasing him, broke her door down, entered her house,

and moved the refrigerator to the front door. The detective testified that the

complainant said she left the residence with her two children and that she did not

know Bass. The detective entered the complainant’s residence and observed that the

refrigerator had been moved and that there was damage in the bathroom and to the

back door.

During the sentencing hearing, Bass stipulated to the judgments of conviction

admitted into evidence showing his prior convictions for unlawfully carrying a

weapon, burglary of a habitation, credit card misuse, driving while intoxicated,

evading arrest, criminal trespass, possession of cocaine, burglary with intent to

commit theft, assault causing bodily injury, assault causing bodily injury – family

violence, criminal mischief, organized retail theft, theft, possession of

methamphetamine, and theft of metal.

In his sole appellate issue, Bass argues the trial court erred by “allowing an

officer who was dispatched to the scene to speculate as to the speed the Appellant

was driving over defense counsel’s objection as to speculation.” According to Bass,

4 “the witness acknowledged his lack of personal knowledge but was allowed to opine

and speculate as to Appellant’s speed at the time of police pursuit.”

We review a trial court’s decision to admit or exclude evidence under an abuse

of discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.

2011); Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial

court abuses its discretion when its decision lies outside of the “zone of reasonable

disagreement.” Martinez, 327 S.W.3d at 736. “A party may claim error in a ruling

to admit or exclude evidence only if the error affects a substantial right of the

party[.]” Tex. R. Evid. 103(a); see Tex. R. App. P. 44.2(b). Generally, an erroneous

evidentiary ruling constitutes non-constitutional error. See Coble v. State, 330

S.W.3d 253, 280 (Tex. Crim. App. 2010); Walters v. State, 247 S.W.3d 204, 219

(Tex. Crim. App. 2007). A substantial right is affected when the alleged error had a

substantial, injurious effect or influence on the outcome. King v. State, 953 S.W.2d

266, 271 (Tex. Crim. App. 1997).

A witness may not testify to a matter about which he lacks personal

knowledge. Tex. R. Evid. 602. Rule 602 of the Texas Rules of Evidence provides in

pertinent part, “[a] witness may testify to a matter only if evidence is introduced

sufficient to support a finding that the witness has personal knowledge of the

matter.” Id. Personal knowledge may be proved by the witness’s own testimony. See

5 id. When asked how fast Bass was driving, Deputy Brown testified that “I’m pretty

sure I was somewhere around 60 or something[,]” and that “[i]n my video I was

somewhere --60 and 65[,]” and “[t]he vehicle [driven by Bass] was still pulling away

from me.” According to the record, Deputy Brown’s testimony was based on Deputy

Brown’s personal observations and knowledge. See id. We conclude that the trial

court’s decision to admit Deputy Brown’s testimony was within the zone of

reasonable disagreement and not an abuse of discretion. See Tillman, 354 S.W.3d at

435. Furthermore, in light of the entire record, we conclude that Bass’s substantial

rights were not affected by the trial court’s consideration of Deputy Brown’s

testimony. See King, 953 S.W.2d at 271; see also Tex. R. App. P. 44.2(b). We

overrule Bass’s sole issue and affirm the trial court’s judgment.

AFFIRMED.

_________________________ LEANNE JOHNSON Justice

Submitted on November 27, 2017 Opinion Delivered December 13, 2017 Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.