Runnels v. State

193 S.W.3d 105, 2006 Tex. App. LEXIS 1775, 2006 WL 560612

• Court: Court of Appeals of Texas
• Decided: March 9, 2006
• Docket: 01-04-00773-CR
• Status: Published

Opinions

OPINION

TIM TAFT, Justice.

Charged with murder, appellant, Richard Runnels Jr., was convicted by a jury of the lesser included offense of manslaughter, and the trial court assessed punishment at 16 years in prison. See Tex. Pen.Code Ann. § 19.04 (Vernon 2003). We determine whether appellant preserved for review his appellate complaint about the trial court’s allowing the State to conduct a demonstration before the jury using a mannequin dressed in the complainant’s clothing. We affirm.

Facts

On the night of September 15, 2001, appellant shot V. Rosas-Sanches, the complainant, in the abdomen and groin area with a sawed-off double-barrel shotgun. Appellant and the complainant had a history of verbal and physical disputes at the Sycamore Inn bar. On that night, the two men got into an argument in the restroom, and the complainant showed appellant the butt of a knife. Appellant ran to his ear, removed a double-barrel shotgun from the trunk, loaded the shotgun, pulled both triggers as the complainant walked toward him, and attempted to reload the shotgun. At the time of the shooting, nobody, including appellant, saw a knife in the complainant’s hand, and appellant had the opportunity to leave, either by walking or driving away. Moreover, several individuals attempted to stop appellant from using his gun.

Mannequin Demonstration

In his sole point of error, appellant asserts that the trial court erred by allowing the State to conduct a demonstration before the jury using a mannequin dressed in the complainant’s bloody clothes over the objection that such evidence was not relevant and that the danger of its unfair prejudice outweighed any probative value that it had.

A. Factual Setting

During the prosecutor’s direct examination of Sealy Police Department Sergeant Detective Andrew Weido, the prosecutor asked that the complainant’s jeans and shirt be marked as State’s Exhibits. Counsel for appellant asked to approach the bench, where the following transpired:

Defense: My objection is to put a dummy, I guess in some somebody’s clothes, and I guess trying to explain using that dummy, I think it’s, first of all, I don’t think it’s relevant. Number Two, I think any probative value, if any, is outweighed by the danger of unfair prejudice.

The Court: What is the prejudice?

Defense: The prejudice is, is that the jury is going to be sitting up there looking at a dummy in this, in this man’s clothes. I assume that is what they are saying, these are this guy’s clothes.

Prosecutor: We are going to talk about where he has been shot, and you can’t just have these kinds of clothes laying [sic] on the ground and explain where the bullet holes went in. It’s important to show—

The Court: Objection is overruled.

B.The Law

Evidence that tends to make the existence of a consequential fact more or less probable is considered relevant, and all relevant evidence is generally admissible. Tex.R. Evid. 401; see Rankin v. State, 974 S.W.2d 707, 719 (Tex.Crim.App.1998) (op. on reh’g); Goldberg v. State, 95 S.W.3d 345, 366 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd.). However, relevant evidence may be excluded when the danger of unfair prejudice substantially outweighs its probative value. Tex.R. Evid. 403; see Goldberg, 95 S.W.3d at 375. The party opposing admissibility bears the burden of showing that the unfair prejudice substantially outweighs the evidence’s probative value. Goldberg, 95 S.W.3d at 367. The decision of whether or not to admit evidence lies within the discretion of the trial court, and the presumption is that relevant evidence is more probative than prejudicial. Jackson v. State, 575 S.W.2d 567, 570 (Tex.Crim.App.1979); Howland v. State, 966 S.W.2d 98, 103 (Tex.App.-Houston [1st Dist.] 1998), aff'd on other grounds, 990 S.W.2d 274 (Tex.Crim.App.1999).

C. Standard of Review

When deciding whether a trial court erred in admitting evidence that was either irrelevant or prejudicial, we review the trial court’s decision for abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996); Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex.Crim.App.1990) (op. on reh’g); Goldberg, 95 S.W.3d at 366. A trial court abuses its discretion when it acts outside of the “zone of reasonable disagreement.” Green, 934 S.W.2d at 102; Goldberg, 95 S.W.3d at 366. We affirm the ruling so long as the trial court followed “the appropriate analysis and balancing factors, though the appellate court might disagree with the weight given to those individual factors.” Montgomery, 810 S.W.2d at 380.

D. Probative Value Versus Unfair Prejudice

Appellant offers no argument on appeal¹ as to why the use of the mannequin was not relevant. Instead, appellant presents the following argument:

In the case at bar the state’s use of a dummy, that is not proportional to the accused, dressed in the bloody clothes, is unduly prejudicial to the appellant’s case. Such prejudice outweighs any probative value. It begs the jury to imagine that that is the complainant standing there. It falsely represents the defendant who was at least 275 pounds according to the medical examiner and his autopsy report. The image burned in the jury’s mind is not that of a 275 pound complainant facing Mr. Runnels who weighs over a hundred pounds, less but one of a smaller complainant. Considering the fact that the appellant was arguing self-defense, this demonstration using the dummy was extremely prejudicial to the appellant’s case, [sic passim]

(Emphasis added.) Although appellant’s brief is confusing in its intermittent mistaken use of “accused” and “defendant” for “complainant,” the gist of appellant’s complaint on appeal is that appellant was prejudiced because the mannequin led the jurors to believe that the complainant was small, when, in fact, he weighed 275 pounds. Appellant claims that his self-defense theory was thereby undermined.

We notice, however, that appellant’s only objection at trial was that he was prejudiced because the jury would be looking at a dummy in the complainant’s clothes. Under these circumstances, the trial court was not alerted to appellant’s complaint on appeal that he was prejudiced because the mannequin was smaller than the 275-pound complainant to such an extent that it would undermine his self-defense theory. When the appellate complaint fails to comport with the trial objection, nothing is preserved for review. Foster v. State, 874 S.W.2d 286, 289 (Tex.App.-Fort Worth 1994, pet. ref'd); Beasley v. State, 810 S.W.2d 838, 841 (Tex.App.Fort Worth 1991, pet. ref'd).

The reason for requiring the same objection at trial is to give the trial court the opportunity to rule on that particular legal theory and to give the State the opportunity to remove the objection. Cook v. State, 858 S.W.2d 467, 474 (Tex.Crim.App.1993). Here, the trial court had no way of foreseeing that appellant would one day complain about the failure of the mannequin to be the same size as the complainant. To allow appellant to raise such a new argument on appeal would blindside the trial court, which we are not inclined to do. See id. But see Wilson v. State, 879 S.W.2d 309, 312 (Tex.App.-Amarillo 1994, no pet.) (despite acknowledging State was technically correct that error was not preserved because complaints at trial and on appeal did not comport, nevertheless addressing argument that appellant had expressly waived at trial because both complaints generally related to same area of rules of evidence), abrogated on other grounds by Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996). It would be particularly inappropriate to blindside the trial court in this case because the trial court properly listened to both appellant’s argument regarding prejudice and the State’s argument regarding probative value before making a ruling. Moreover, the State had no opportunity below to remove the claim of prejudice, presented for the first time on appeal, based on there being a difference in size between the mannequin and the complainant.

We hold that appellant’s objection at trial, that the jury would be prejudiced by viewing a mannequin dressed in the complainant’s clothes, does not comport with appellant’s complaint on appeal, that his self-defense theory was undermined by portraying the complainant with a mannequin much smaller than the complainant’s 275-pound frame. Therefore, appellant did not preserve his appellate complaint for review.

Accordingly, we overrule appellant’s sole point of error.

E. Response to the Concurring Opinion

We write further to explain our disagreement with three aspects of the concurring opinion.

First, in reaching its conclusion that appellant’s challenge was not waived, the concurring opinion sets out excerpts from the record of matters either that occurred after the trial court’s ruling or that were simply unrelated to the issue of the propriety of the mannequin exhibit’s admission. Had all of those arguments and information concerned the propriety of the mannequin exhibit’s admission — and had they further either been before the trial court when it ruled or been the subject of a renewed objection by appellant after their presentation² — we might then be faced with a different situation. But those things did not happen here. Absent fundamental error, which no ones argues that this is, we cannot reverse a trial court on grounds that were not presented to it at the time that it was asked to rule. See Tex.R.App. P. 38.1(a). To do so would truly be unfair to the court and would be tantamount to requiring the court to read the future.

Second, the concurring opinion posits that “[njeither Rule of Evidence 403 nor the case law explicating its requirements holds that a defendant must spell out in his objection exactly how a demonstration is too dissimilar from the actual circumstances to constitute an abuse of discretion” and that a defendant need not “spell out exactly how the admission of evidence is more prejudicial than probative on pain of waiving error.” We do not necessarily disagree with this proposition, as far as it states a general rule. Nonetheless, we disagree with it in this case. Here, whether he was required to do so or not in the abstract, appellant actually did spell out how the evidence was more prejudicial than probative — specifically, that the jury would be looking at a dummy in the complainant’s clothes. Once an appellant affirmatively limits his objection in the trial court to a narrow basis, he cannot expand on that basis for the first time on appeal. Cf. Shelling v. State, 52 S.W.3d 213, 217-18 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (holding that appellant waived complaint that trial court erred in overruling objection to voir dire questions concerning O.J. Simpson trial because that case was racially polarizing when trial objection had been only that defense counsel was “going to object to the reference to the O.J. verdict as it relates to homicide cases as it indirectly relates to this defendant, myself or cocounsel.”); cf. also Bell v. State, 938 S.W.2d 35, 47-48 (Tex.Crim.App.1996) (“But at both trials, appellant limited his objections to the issue of his illegal arrest only and the effect of that arrest on his confession. Appellant now raises the issue of a possibly illegal search and seizure, for the first time, in his brief on appeal. Appellant has not preserved this claim because he failed to raise it at either trial.”). Allowing an appellant to do so does blindside the trial court, which has a right to rely on an appellant’s affirmative statement that he is limiting his complaint to one basis among many potential bases applicable to a given objection.

Third, the concurring opinion states:

Nor could appellant’s counsel have objected with the specificity that the majority requires because the trial court, having heard briefly why the defense considered itself prejudiced and why the State wanted the clothing to be displayed on the mannequin, cut both defense counsel and the prosecution off before anything else could be said; and it similarly cut defense counsel off when he subsequently tried to introduce the mannequin into evidence during the State’s examination. Clearly, the court did not think that it needed more of an explanation before overruling the defense’s objection and allowing the demonstrative evidence.

The pertinent discussion shows, however, that if the trial court cut off anyone, that entity was the State, not also appellant.³ Moreover, nothing shows that appellant at that time had more to add to his objection or that, even assuming that he did (something that we cannot know without pure speculation), the trial court precluded his doing so. A trial court’s premature ruling alone does not relieve an appellant from stating his full objection. Rather, if a trial court rules prematurely (which, again, nothing here indicates that it did), the appellant has the duty to advise the court that he has further objections to make— and, if the court disallows further objections, to object to that ruling. See Tex. R.App. P. 33.1(a)(1), (2); cf. Carter v. State, 717 S.W.2d 60, 72, 76 (Tex.Crim.App.1986) (noting, “The court sustained the challenge for cause by the State. Appellant’s counsel did not ask for additional interrogation or object that the excusal was premature as now urged[,]” and further noting, “According to appellant[,] Bryant is ‘a classic example of the vacillating juror who finally concludes she is undecided and is then prematurely excluded for cause.’ ... The appellant did not ask for additional time to interrogate, though he now insists the exclusion was premature.”). Simply put, nothing here shows that the trial court “cut ... off” appellant, that appellant had more to add to his objection at the time at which he asked for a ruling, or that appellant could not have objected because he was prevented from doing so by the trial court.

Conclusion

We affirm the judgment of the trial court.

Justice KEYES, concurring.

1 . Appellant likewise made no argument at trial regarding relevance.

2 . The concurring opinion appears to imply that the court's later denial of appellant’s request to admit the mannequin into evidence during the State’s direct examination might somehow be considered sufficient to preserve appellant's appellate challenge. To the extent that the concurring opinion implies this, we reject that conclusion for two reasons. First, appellant’s above-mentioned request was only to admit the mannequin into evidence. That request simply cannot be construed as an objection that appellant was prejudiced because the mannequin was smaller than the 275-pound complainant to such an extent that it would undermine his self-defense theory. Second, the trial court did not prevent appellant from requesting that the mannequin be admitted into evidence. Instead, as the discussion quoted in the concurring opinion plainly shows, the court indicated that appellant could offer the mannequin into evidence if he wished through his own witnesses, but that he could not require the State to offer it in its direct examination. The court did not fully and finally "cut defense counsel off” from offering the mannequin at any time. And we note that, rather than offering the mannequin into evidence after the State had finished its examination, appellant chose instead to describe (and to allow the State to describe) the mannequin verbally for the record.

3 . During its direct examination of Sergeant Weido, the State offered in evidence the decedent’s jeans and sweatshirt displayed on a mannequin. Appellant objected that having the mannequin dressed in appellant’s clothes was more prejudicial than probative. Appellant then explained:

My objection is to put a dummy, I guess in some somebody's clothes, and I guess trying to explain using that dummy, I think it’s, first of all, I don’t think it's relevant. Number Two, I think any probative value, if any, is outweighed by the danger of unfair prejudice.

When the trial court asked how the dummy was prejudicial, appellant’s counsel replied, "[T]he jury is going to be sitting up there looking at a dummy in this, in this man's clothes.” Before the State could then finish its response that ”[w]e are going to talk about where he has been shot, and you can’t just have these kinds of clothes laying [sic] on the ground and explain where the bullet holes went in. It’s important to show — ,” the trial court overruled the objection.