Matthew R. Broderick v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-12-00437-CR

MATTHEW R. BRODERICK APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY

MEMORANDUM OPINION 1

In one issue, appellant Matthew R. Broderick appeals his conviction for

assault-family violence. 2 We affirm.

1 See Tex. R. App. P. 47.4. 2 See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2) (West 2011). Background Facts 3

Appellant and his wife, Natasha, are each from Canada, but they began

living in Texas with Natasha’s two children prior to October 2011. By

October 2011, appellant wanted a divorce. One early morning that month, after

drinking alcohol at a bar, he came home intoxicated. Natasha called 911

because she did not want appellant to drive again that night. Two officers from

the Flower Mound Police Department responded to the call.

Eventually, the officers asked Natasha if appellant had ever assaulted her.

She told the officers that appellant had assaulted her one week earlier, on

September 25, 2011. The officers took photos of bruises on both of Natasha’s

arms and her left leg.

In addition, Natasha completed a written statement in which she described

the events of September 25. The last question on the statement asked whether

any property was damaged during the September 25 assault, and Natasha

wrote, “Not this time.” The State subsequently charged appellant with committing

assault-family violence by pushing, grabbing, throwing, holding, striking, or

headbutting Natasha.

Appellant pled not guilty. Before trial, his retained counsel urged a motion

in limine, asking the trial court to instruct the State to approach the bench before

3 Because appellant does not challenge the sufficiency of the evidence supporting his conviction, we will only briefly summarize the facts related to his assault-family violence charge.

2 referring to, among other matters, Natasha’s written statement. The trial court

granted the motion.

During the trial, the State sought admission of the written statement as

State’s Exhibit No. 10 (Exhibit 10). Appellant initially objected, arguing that if the

trial court admitted the exhibit, the State would “be violating previous rulings of

the [c]ourt.” The trial court sustained the objection. Later, after the close of all

testimony, based on an “agreement between the parties,” the trial court admitted

Exhibit 10. Appellant’s counsel stated that he had no objection to Exhibit 10

being admitted as long as the “court’s prior rulings appl[ied]” to the evidence, but

the trial court did not expressly limit the use of Exhibit 10 or establish on the

record that any previous rulings applied to its admission. Toward the end of the

State’s closing argument, appellant’s counsel objected when the State referred to

Natasha’s answer to the last question in Exhibit 10, which was that appellant had

not damaged any property “this time.” The trial court overruled the objection.

After hearing all of the evidence and arguments from the parties, a jury

found appellant guilty. The trial court assessed his punishment at ninety days’

confinement, suspended the imposition of that sentence, and placed him on

community supervision for 364 days. Appellant brought this appeal.

The Propriety of the State’s Closing Argument

In his sole issue, appellant contends that the trial court erred by allowing

the State to argue “outside of the record and in violation of the court’s prior

3 rulings” during its closing argument. 4 Specifically, he appears to argue that the

trial court admitted Exhibit 10 subject to its earlier ruling on his motion in limine

pertaining to extraneous offenses and prior bad acts. Therefore, he contends

that the State injected new and harmful facts into evidence during its closing

argument when it referred to Natasha’s answer to the last question in Exhibit

10—that he had not damaged property “this time.”

To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence, (2) reasonable

deduction from the evidence, (3) answer to argument of opposing counsel, or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim.

App. 1992), cert. denied, 510 U.S. 829 (1993); Marchbanks v. State, 341 S.W.3d

559, 564–65 (Tex. App.—Fort Worth 2011, no pet.). The State’s complained-of

argument certainly qualifies as a summation of evidence because it was a

verbatim restatement of information contained in Exhibit 10, which the trial court

admitted through the agreement of the parties. Therefore, we will analyze

whether Exhibit 10 was admitted in its entirety or was confined to a limited

purpose.

4 The State contends that appellant did not preserve error, focusing on the content of his objections to the admission of Exhibit 10 before closing argument. But appellant does not challenge the admission of Exhibit 10; instead, he challenges only the State’s closing argument related to that exhibit. We conclude that appellant preserved his complaint for our review by making an objection during the State’s closing argument on which the trial court made a contemporaneous, explicit ruling. See Tex. R. App. P. 33.1(a); Smith v. State, 316 S.W.3d 688, 698 (Tex. App.—Fort Worth 2010, pet. ref’d).

4 Rule of evidence 105(a) provides that “[w]hen evidence which is

admissible as to one party or for one purpose but not admissible as to another

party or for another purpose is admitted, the court, upon request, shall restrict the

evidence to its proper scope and instruct the jury accordingly.” Tex. R. Evid.

105(a). The party opposing evidence or seeking a limitation on its use has the

burden of requesting a limiting instruction at the introduction of the evidence.

Hammock v. State, 46 S.W.3d 889, 892, 894–95 (Tex. Crim. App. 2001).

Further, if a limiting instruction is to be effective, it must be given when the

evidence is admitted. See id.; Delgado v. State, 235 S.W.3d 244, 251 (Tex.

Crim. App. 2007). Once evidence is received without a limiting instruction, it

becomes part of the general evidence and may be used for all purposes. See

Gunter v. State, 327 S.W.3d 797, 801 (Tex. App.—Fort Worth 2010, no pet.);

Martin v. State, 176 S.W.3d 887, 899 (Tex. App.—Fort Worth 2005, no pet.).

To illustrate, in Henriquez v. State, Henriquez appealed his conviction for

continuous sexual abuse of a child or children under fourteen years old. No. 02-

10-00077-CR, 2011 WL 2119679, at *1 (Tex. App.—Fort Worth May 26, 2011,

pet. ref’d) (mem. op., not designated for publication). Henriquez argued that the

trial court had erred by refusing to give an instruction limiting the jury’s use of

certain testimony to impeachment purposes only. Id. at *5. Although

Henriquez’s counsel had objected to the testimony at issue, counsel had not

requested a limiting instruction when the trial court had overruled his objection

and had admitted the testimony into evidence. Id. Therefore, we held that the

5 evidence had been admitted for all purposes. Id. As such, the trial court was not

obligated to include a limiting instruction in the jury charge. Id.

Similarly, here, appellant’s counsel did not request a limiting instruction

when Exhibit 10 was admitted, nor did counsel ask the trial court to redact any

part of the exhibit. 5 Instead, counsel stated, “[W]ith the [c]ourt’s . . . prior rulings

applying to State’s Exhibit 10, we have no objection.” However, even if we could

assume that the trial court tacitly agreed to apply its “prior rulings” to the

admission of Exhibit 10, the trial court’s grant of appellant’s motion in limine did

not nullify his obligation to request a limiting instruction when evidence that may

have violated the motion was introduced. See Fuller v. State, 253 S.W.3d 220,

232 (Tex. Crim. App. 2008) (“A motion in limine . . . is a preliminary matter and

normally preserves nothing for appellate review. For error to be preserved with

regard to the subject of a motion in limine, an objection must be made at the time

the subject is raised during trial.”) (footnote omitted), cert. denied, 555 U.S. 1105

(2009); Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988) (holding that

although a defendant had filed a motion in limine, he had the burden “of

requesting a correct limiting instruction”), cert. denied, 491 U.S. 910 (1989).

Because no limiting instruction or redaction was requested, Exhibit 10 was

5 We note that appellant’s counsel initiated a thorough discussion of redaction to avoid violating either party’s motion in limine when he introduced Natasha’s medical records. If appellant desired to make certain that insinuations as to extraneous offenses would not come before the jury, he could have been just as specific with his concerns about Exhibit 10.

6 admitted for all purposes despite counsel’s reference to the motion in limine.

See Gunter, 327 S.W.3d at 801–02; Martin, 176 S.W.3d at 899; see also Klein v.

State, 273 S.W.3d 297, 318 (Tex. Crim. App. 2008) (“With this evidence coming

in without objection or limitation, it became part of the general evidence in the

case, and the jury could have used it for any purpose.”).

Jones v. State demonstrates that summation of the evidence is a valid

purpose for which evidence admitted in its entirety can be used. No. 09-96-

00400-CR, 1998 WL 428876, at *4 (Tex. App.—Beaumont, July 29, 1998, no

pet.) (not designated for publication). Jones argued that the trial court had erred

by allowing improper jury argument about the contents of a purse that were

allegedly not admitted into evidence. Id. The court of appeals, however,

disagreed because a witness had testified about the contents of the purse

without objection during trial. Id. Because no limiting instruction was requested

at that point, the court reasoned that the purse could be “used as proof to the full

extent of its rational persuasive power.” Id. Therefore, comments about the

contents of the purse during jury argument were proper as summations of

evidence. Id.

Similarly, here, appellant argues that the trial court erred by allowing the

State to argue outside the record. During closing argument, the State discussed

Exhibit 10 by stating, “And then finally, there’s an interesting little note here:

[‘]Was there damage to any property, wall, phone, furniture, etc.? Not this

time.[’]” This statement was a proper summation of the evidence because

7 appellant, like the appellant in Jones, failed to request a limiting instruction at the

proper time or to otherwise seek to exclude or redact the part of Exhibit 10 that

the State discussed in its closing argument. See id.; see also Vega v. State, No.

04-07-00890-CR, 2009 WL 1617670, at *3 (Tex. App.—San Antonio June 10,

2009, no pet.) (mem. op., not designated for publication) (“When the State cross-

examined Vega, it asked him about his prior felony conviction for burglary.

Vega’s counsel did not request a limiting instruction . . . . Accordingly, the

conviction was before the jury for all purposes, and the State’s reference to the

conviction was not improper argument.”); Minor v. State, No. 14-99-01139-CR,

2000 WL 1638468, at *2 (Tex. App.—Houston [14th Dist.] Nov. 2, 2000, pet.

ref’d) (not designated for publication) (“[B]ecause the evidence could be

considered by the jury for all purposes, . . . any argument that the jury do so was

not objectionable.”).

For these reasons, we hold that the trial court did not err by overruling

appellant’s objection to the State’s closing argument about Exhibit 10. We

overrule appellant’s only issue.

8 Conclusion

Having overruled appellant’s sole issue, we affirm the trial court’s

judgment.

TERRIE LIVINGSTON CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: July 11, 2013