Kimberly Waldrep, Individually and as Natural Parent and Next Friend of Haley Waldrep, a Minor v. Kiewit Texas Mining Company D/B/A Walnut Creek Mining Company

Opinion

Waldrep v. Kiewitt Mining Co.

IN THE

TENTH COURT OF APPEALS

No. 10-97-039-CV

KIMBERLY WALDREP, INDIVIDUALLY AND

AS NATURAL PARENT AND NEXT FRIEND OF

HALEY WALDREP, A MINOR,

                                                                                   Appellant

v.

KIEWIT TEXAS MINING COMPANY D/B/A

WALNUT CREEK MINING COMPANY,

                                                                                   Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 95-08-14,957-CV

                                                                                                    

MEMORANDUM OPINION

                                                                                                    

      Proceeding pro se on appeal, Kimberly Waldrep, individually and as next friend of Haley Waldrep, attempts to appeal a $2,500 judgment rendered in her favor in an automobile collision case. Because Waldrep did not attempt to perfect her appeal within the proper time period and no motion for an extension of time to perfect her appeal was filed, we conclude that we do not have jurisdiction over her appeal.

      According to the transcript that was received by this court on January 30, 1997, the final judgment was signed by the trial court on July 31, 1996, and a motion for new trial was timely filed on August 29, 1996. See Tex. R. Civ. P. 329b(a). Pursuant to Tex. R. App. P. 41(a)(1), Waldrep had ninety days after July 31, 1996, i.e. until October 29, 1996, to perfect her appeal from this judgment. Waldrep filed her perfection instrument, an affidavit of inability to pays the costs of appeal, on November 13, fifteen days too late. See id. Thus, Waldrep has failed to timely perfect her appeal.

      The time period for perfecting an appeal is jurisdictional. Davies v. Massey, 561 S.W.2d 799, 800 (Tex. 1978); El Paso Sharky's v. Amparan, 831 S.W.2d 3, 5 (Tex. App.—El Paso 1992, writ denied). Because Waldrep failed to perfect her appeal within the jurisdictional time period and failed to timely request an extension of time for perfection, we lack jurisdiction to entertain this appeal. Id.; McDonald v. Newmyer, 775 S.W.2d 652, 653 (Tex. App.—Houston [1st Dist.] 1989, writ denied).

      Therefore, we dismiss this cause for want of jurisdiction.

 

                                                                                           PER CURIAM

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed February 19, 1997

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thought the Christian girls were killing the men.  He asked the Sheriff’s Department for a badge because he believed he was the “supreme commander” of the world.

On the night of the offense, Ruffin thought he was being hunted by Muslims.  He had heard voices laughing at him and thought someone was stealing from him.  When Brown called out to him, he told her to go away, accused her of trespassing, and fired some shots.  At some point, he heard a helicopter and believed it was an Apache helicopter, with missiles, being flown by his sister.  He thought Muslims were in the bushes, so he fired in the direction of the voices.  He believed there were hundreds of Muslims.  In the morning, he was surprised to see police vehicles in front of his house.  After his arrest, Ruffin believed that the girls in the jail were “witches” walking around with black teeth and laughing.

As the Court of Criminal Appeals noted, “The testimony proffered by Dr. Carter in this case is clearly relevant to the issue of whether appellant intended to shoot at police officers during the standoff or whether, because of a mental disease and the delusions that he suffered as a result of that disease, he believed that he was shooting at Muslims or some other figment of his mind.”  Ruffin, 270 S.W.3d at 596.  Because Carter’s testimony was admissible to rebut the mens rea element of aggravated assault on a public servant, the inherent probative value of the evidence was great.

We are not persuaded that the probative value of this evidence is minimized by the lay testimony admitted at trial:

Although the trial judge permitted numerous lay witnesses, including appellant himself, to testify to “observational evidence” concerning appellant’s mental breakdown and delusions, that evidence was never put into a mental-disease context or its psychological significance explained.

 

Ruffin, 270 S.W.3d at 596-97 (emphasis added).  Carter’s testimony was needed to perform this very function.

While the testimony would certainly be prejudicial to the State’s case, it would not be unfairly so in proportion to its probative value.  See Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002) (“To violate Rule 403, it is not enough that the evidence is ‘prejudicial’ - it must be unfairly prejudicial.”).  Rather than suggesting a decision on an improper basis, Carter’s testimony would place the evidence of Ruffin’s mental state in the proper context and allow the jury to properly evaluate the probative force of the evidence.  The evidence goes to the heart of the main issue in the case: whether Ruffin committed the charged offense.  We cannot say that the jury would have been confused, distracted, or misled by this evidence.  See Ruffin, 270 S.W.3d at 595 (Expressing “confidence that our Texas judges and juries are sufficiently sophisticated to evaluate expert mental-disease testimony in the context of rebutting mens rea just as they are in evaluating an insanity or mental-retardation claim.”).

Finally, the record does not suggest that the testimony would cause “undue delay” or “needless presentation of cumulative evidence.”  Carter’s testimony is not cumulative of other testimony at trial.  The bill of exception consumed approximately nineteen pages of the record, and Carter’s testimony at the punishment phase of trial consumed about forty pages of the record.

In summary, the above factors favor admission of the evidence.  The trial court abused its discretion by excluding Ruffin’s proffered expert testimony under Rule 403. 

We now address whether Ruffin suffered harm as a result of the exclusion of his evidence.  The State argues that harm should be evaluated for non-constitutional error.  Citing Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007), Ruffin contends that harm should be evaluated for constitutional error:

The erroneous exclusion of evidence offered under the rules of evidence generally constitutes non-constitutional error and is reviewed under Rule 44.2(b).  The exception is when erroneously excluded evidence offered by the criminal defendant “forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense.”  Exclusion of evidence might rise to the level of a constitutional violation if: (1) a state evidentiary rule categorically and arbitrarily prohibits the defendant from offering otherwise relevant, reliable evidence vital to his defense; or (2) a trial court’s clearly erroneous ruling results in the exclusion of admissible evidence that forms the vital core of a defendant’s theory of defense and effectively prevents him from presenting that defense.  In such a case, Rule 44.2(a), the standard for constitutional errors, would apply.

 

Walters, 247 S.W.3d at 219 (emphasis added).

Texas does not recognize diminished capacity as an affirmative defense i.e., a lesser form of the defense of insanity.  Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim. App. 2005).  It is “simply a failure-of-proof defense in which the defendant claims that the State failed to prove that the defendant had the required state of mind at the time of the offense.”  Id.  The standard for non-constitutional error applies.  See Morales v. State, 32 S.W.3d 862, 866-67 (Tex. Crim. App. 2000) (remanding case to the First Court of Appeals to evaluate the exclusion of defendant’s expert testimony for non-constitutional error).

 When evaluating harm from non-constitutional error flowing from the exclusion of relevant evidence, we examine the record as a whole, and if we are fairly assured that the error did not influence the jury or had but a slight effect, we conclude that the error was harmless.  Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005).  Any error must be disregarded unless it affected Ruffin’s substantial rights.  See Tex. R. App. P. 44.2(b).

The State argues that Ruffin’s substantial rights were not affected because he was able to present similar testimony from other witnesses, the record contains a wealth of evidence to support the verdict,[1] and the jury must have considered Ruffin’s diminished mental state, having assessed ten years in prison for each count.[2]  

Whether Ruffin knew he was shooting at law enforcement officers was central to the case.  The lay testimony of Ruffin’s mental state amounts to “observational evidence” that was “never put into a mental-disease context or its psychological significance explained.”  Ruffin, 270 S.W.3d at 597.  The jury did not have the opportunity to hear Carter’s testimony, which was relevant to his failure-of-proof defense, and to evaluate its credibility in addition to other evidence presented at trial. 

In Morales v. State, No. 01-99-00457-CR, 2001 Tex. App. LEXIS 3219 (Tex. App.—Houston [1st Dist.] May 17, 2001, no pet.) (not designated for publication), Morales was charged with felony driving while intoxicated.  See Morales, 2001 Tex. App. LEXIS 3219, at *1.  Morales called an acquaintance who testified that he and Morales had four or five beers several hours before the offense; thus, he did not believe that Morales was intoxicated.  Id. at *7.  Morales sought to introduce expert testimony to show that he “would not have been mentally or physically impaired because of the alcohol burn-off rate.”  Id.  When conducting its harm analysis, the First Court noted that the sole issue at trial was whether Morales was driving while intoxicated.  See id. at *9.  Morales’s “primary defense was that he could not have been driving while intoxicated because such a long period of time had elapsed since his last drink.”  Id.  The expert’s testimony would have “substantially bolstered” that defense.  Id. at *9-10.  Although the First Court did not believe that Morales would have been acquitted “but for the trial court’s error,” it could not say with “fair assurance that the excluded testimony would have had no effect, or but slight effect, on the jury’s consideration of [Morales’s] defense.”  Id. at *10.  Morales was harmed because the “jury was not given an opportunity to hear testimony relevant to [his] defense and assess its credibility along with the other evidence in the case.”  Id. 

As in Morales, we do not have a fair assurance that the exclusion of Carter’s testimony did not influence the jury or had but a slight effect.  Because we conclude that Ruffin was harmed by this error, we reverse the judgment and remand this cause to the

trial court for further proceedings consistent with this opinion.

   

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

(Chief Justice Gray dissenting with note)*

Reversed and remanded

Opinion delivered and filed September 23, 2009

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[CRPM]

 

*           (Chief Justice Gray dissents.  A separate opinion will not issue.  The admissibility of the evidence is dependent on a balancing test administered by the trial court and even if erroneously excluded must be harmful.  Based on the precedent of this Court, I cannot conclude the trial court erred in his decision to exclude the evidence or that, if erroneous, the exclusion was harmful.)

           

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[1]               On original submission, we noted several facts supporting the verdict: (1) Ruffin had known Brown for years, knew that she was a law enforcement officer, and acknowledged her on the night of the offense; (2) some officers had activated the overhead lights on their patrol cars at the time of their arrival at the scene; (3) the headlights of some patrol cars illuminated the law enforcement markings on other vehicles, as well as officers in uniform; and (4) at some point during the night, Ruffin fired shots at both the officers and a police helicopter.  See Ruffin v. State, 234 S.W.3d 224, 227-28 (Tex. App.—Waco 2007, pet. granted).

 

[2]               Citing Peters v. State, 31 S.W.3d 704 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) and Wilkerson v. State, 766 S.W.2d 795 (Tex. App.—Tyler 1987, writ ref’d), Ruffin contends that exclusion of Carter’s testimony was harmful.  Because these cases involve testimony excluded at the punishment phase, they are not particularly helpful.