Thomas Milton Buchanan, Jr., A/K/A Milton Buchanan v. State

• Court: Court of Appeals of Texas
• Decided: October 13, 2017
• Docket: 08-16-00071-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

THOMAS MILTON BUCHANAN, JR., a/k/a MILTON BUCHANAN, § No. 08-16-00071-CR

Appellant, § Appeal from the

v. § 450th District Court

THE STATE OF TEXAS, § of Travis County, Texas

Appellee. § (TC# D-1-DC-14-300685)

§ OPINION

Appellant Thomas Milton Buchanan, Jr. appeals his conviction of unlawful possession of

a firearm by a felon.1 See TEX.PENAL CODE ANN. § 46.04(a)(1) (West 2011). In a single issue,

Buchanan complains about the admission of evidence during the guilt phase of his trial. Finding

that Buchanan failed to preserve error, we affirm the trial court’s judgment of conviction.

BACKGROUND

Because Buchanan does not challenge the sufficiency of the evidence, we discuss only

those facts relevant to the resolution of the evidentiary issue advanced on appeal. Buchanan was

living with his seventy-one-year-old mother, Susie Maloney, a retired engineer and nuclear

1 Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal from our sister court in Austin; we decide this case in accordance with the precedent of that court. See TEX.GOV’T CODE ANN. § 73.001 (West 2013) (authorizing transfer of cases); TEX.R.APP.P. 41.3 (precedent in transferred cases). physicist who worked as a part-time math and science tutor. On the evening of April 4, 2014,

Maloney returned home from tutoring and found Buchanan watching television in their den with

a friend, and he was smoking a cigarette. Not wanting any smoking in her home, Maloney asked

him to put out his cigarette. Although Buchanan complied, he responded belligerently, and she

noticed his speech was slurred.

Detecting that Buchanan might be drunk, Maloney decided to forego her plan to eat a

bedtime snack, and instead grabbed the handheld portable house phone, her purse and cell phone,

and went into her bedroom locking the door behind her. Buchanan began hollering at her through

her bedroom door, eventually used a tool to unlock the door, and entered while talking incoherently

and nonsensically, making threats against her. Maloney asked Buchanan to leave but he continued

to advance towards her. Fearing for her life, Maloney called 911 and during the beginning of the

call she reported that he did not have a weapon. While Maloney continued talking with the

operator, Buchanan left her bedroom but soon returned holding a 12-gauge shotgun. He then

grabbed her, dragged her out of her bedroom, and threw her onto the floor of the hallway. He

ground her head into the floor with his knee causing bruising on both sides of her head and

temporarily dislocating her jaw. She was in a state of panic and shock. Buchanan then pointed

the gun at Maloney as he held her to the ground. Once he removed his knee from her head, she

struggled to stand and Buchanan shoved her against the furniture. He pointed the gun at her again

and threatened to kill her. She asked Buchanan if she could return to her bedroom to listen to the

radio, and he allowed her to go. She went to the bathroom adjoining her bedroom and locked the

door. Once inside, she crawled out the bathroom window and escaped to her neighbor’s house to

contact the police. Later, Maloney described Buchanan’s friend as a homeless person who

passively remained in the den throughout the incident. The 911 call Maloney made from her home 2 remained connected and recorded the incident.

Buchanan was charged by indictment with unlawful possession of a firearm by a felon and,

in a separate indictment, aggravated assault with a deadly weapon. TEX.PENAL CODE ANN. §§

46.04(a) (West 2011); 22.02 (West 2011).2 Both indictments included an enhancement paragraph

for a previous conviction of driving while intoxicated. The aggravated assault indictment also

included an enhancement paragraph for a previous conviction of assault family violence.

On September 22, 2014, by agreed judgment, the court found Buchanan mentally

incompetent to stand trial and he was committed to a Mental Health Facility for the purpose of

restoring competency. Over six months later, the parties waived any objections to a competency

report filed by Rusk State Hospital, and the court found Buchanan competent to stand trial. During

his trial, forensic psychologist Terri Arnold testified to statements Buchanan made about the

incident involving his mother, and these statements were noted in treatment records kept at the

state hospital. Dr. Arnold read from these records quoting Buchanan as stating to her that his

mother had disrespected him and she took away his pellet gun, thus, he threatened her with a

shotgun. Following a jury trial, Buchanan was convicted of aggravated assault and unlawful

possession of a firearm by a felon as alleged in the indictments filed against him. On the unlawful

possession of a firearm, he was sentenced to serve a sentence of twenty years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice, with this sentence running

concurrent with a fifty-year sentence on the aggravated assault charge

2 This appeal involves the unlawful possession of a firearm by a felon conviction, No. 08-16-00071-CR (cause number D-1-DC-14-300685), and it is a companion case to No. 08-16-00072-CR (cause number D-1-DC-14- 201975), involving the aggravated assault with a deadly weapon conviction. Buchanan was tried and convicted on both charges but he filed separate appeals. 3 DISCUSSION

In his single issue on appeal, Buchanan claims that the trial court erred when it allowed the

psychologist to testify to statements he made during his treatment at the state hospital. Buchanan

based his argument on two grounds: first, he asserts “[t]he introduction of this evidence constitutes

a violation of Due Process guaranteed by the Fifth and Fourteen[th] Amendments of the U.S.

Constitution[;]” and second, he asserts “[t]hese statements were also ‘confidential’ as defined in

Rule 509(b) of the Texas Rules of Evidence.” In response, the State asserts that Buchanan forfeited

his right to raise this issue on appeal by failing to timely object during his trial.3 Finding no

objection made during the trial, we agree.

A general prerequisite to presenting a complaint on appeal is that the record must show

that a party presented to the trial court a timely request, objection, or motion stating the specific

grounds for the ruling desired, and pursued an adverse ruling. See TEX.R.APP.P. 33.1(a); Priester

v. State, 478 S.W.3d 826, 840 (Tex.App.--El Paso 2015, no pet.). An objection “let[s] the trial

judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for

the judge to understand him at a time when the trial court is in a proper position to do something

about it.” Ford v. State, 305 S.W.3d 530, 533 (Tex.Crim.App. 2009) (quoting Lankston v. State,

827 S.W.2d 907, 909 (Tex.Crim.App. 1992)). “The purpose of requiring a specific objection in

the trial court is twofold: (1) to inform the trial judge of the basis of the objection and give him

the opportunity to rule on it; (2) to give opposing counsel the opportunity to respond to the

complaint.” Resendez v. State, 306 S.W.3d 308, 312 (Tex.Crim.App. 2009).

Buchanan points to his motion in limine, which the trial court granted, to assert that his

3 Additionally, the State argues that, if preserved, the trial court did not commit error and that error, if any, was harmless. 4 complaint on appeal was preserved.4 We cannot agree. It is well established that a trial court’s

granting of a motion in limine is a preliminary ruling only, and “normally preserves nothing for

appellate review.” Geuder v. State, 115 S.W.3d 11, 14-15 (Tex.Crim.App. 2003); Coutta v. State,

385 S.W.3d 641, 664 (Tex.App.--El Paso 2012, no pet.) (“A motion in limine is a preliminary

matter which does not preserve any complaints for appellate review and, to preserve such

complaint, a party must object at the time the complained-of evidence is offered at trial.”).

Turning to the “confidential” argument Buchanan presents on appeal, the hearsay

exception under Rule 803(4) applies to any statement that: “(A) is made for—and is reasonably

pertinent to—medical diagnosis or treatment; and (B) describes medical history; past or present

symptoms or sensations; their inception; or their general cause.” TEX.R.EVID. 803(4). To establish

this exception, the proponent of the evidence must establish the veracity and pertinence

components of the rule. The proponent must show that (1) the out-of-court declarant was aware

that the statements were made for purposes of medical diagnosis or treatment, and that proper

diagnosis or treatment depended upon the veracity of the statements, and (2) the statements are

pertinent to diagnosis or treatment: that is, it was reasonable for the care provider to rely on the

statements in diagnosing or treating the declarant. Taylor v. State, 268 S.W.3d 571, 590-91

(Tex.Crim.App. 2008). Buchanan’s failure to state, or even allude to, either component of the

exception under Rule 803(4) deprived the trial court and the State of the opportunity to address or

correct the purported error. See Smith v. State, 499 S.W.3d 1, 7–8 (Tex.Crim.App. 2016) (“There

are two main purposes behind requiring a timely and specific objection. First, the judge needs to

be sufficiently informed of the basis of the objection and at a time when he has the chance to rule

4 The motion in limine states, in relevant part, that the State be prohibited from introducing “[a]ny statements, admissions, or confessions made by [Buchanan] after custodial arrest requiring a hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964) and Art. 38.22 § 6 Texas Code of Criminal Procedure. Tex. R. Evid. 104(c).” 5 on the issue at hand. Second, opposing counsel must have the chance to remove the objection or

provide other testimony.”).

Regarding Buchanan’s due process argument, a defendant’s statement may be deemed

involuntary on three legal grounds in Texas: (1) article 38.22, section 6 of the Code of Criminal

Procedure concerning general voluntariness; (2) Miranda v. Arizona,5 as reflected in article 38.22,

sections 2 and 3 of the same code; or (3) the Due Process Clause of the United States Constitution.

See Oursbourn v. State, 259 S.W.3d 159, 169 (Tex.Crim.App. 2008) (citing TEX.CODE

CRIM.PROC.ANN. art. 38.22, §§ 2, 3, 6). Buchanan’s failure to state or allude to any of these

grounds deprived the trial court and the State of the opportunity to address or correct any purported

error. See Smith, 499 S.W.3d at 7–8; Resendez, 306 S.W.3d at 314 (objection based on one

involuntary ground does not necessarily preserve the other in Texas); cf. Jenkins v. State, 912

S.W.2d 793, 813 (Tex.Crim.App. 1993) (en banc) (finding defendant’s article 38.22, section 6

objections sufficient to preserve article 38.22, section 6 error).

Buchanan did not object during the psychologist’s testimony; nor did he, in any other way,

present any argument on the issues of confidentiality or due process to the trial court. Buchanan

therefore did not preserve any of the arguments he now raises on appeal. Hailey v. State, 87

S.W.3d 118, 122 (Tex.Crim.App. 2002) (improper for appellate court to reverse a trial court’s

decision based on a legal theory not timely presented by the complaining party). We overrule his

single issue on appeal.

III. CONCLUSION

The trial court’s judgment is affirmed.

5 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). 6 GINA M. PALAFOX, Justice

October 13, 2017

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)