Jones v. State

Decision Date06 May 2003
Docket NumberNo. 05-02-00064-CR.,No. 05-02-00063-CR.,05-02-00063-CR.,05-02-00064-CR.
Citation111 S.W.3d 600
PartiesWilliam Stewart JONES, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Nathan Kight, Robert Udashen, Sorrels & Udashen, Dallas, Darlina Barraza Crowder, Gregory T. Brewer, McKinney, for appellant.

John Roach, Criminal District Attorney, Jeffrey Garon, Assistant Criminal District Attorney, McKinney, for the State.

Before Justices WHITTINGTON, MOSELEY, and FRANCIS.

OPINION

Opinion by Justice MOSELEY.

A jury convicted William Stewart Jones on two counts of aggravated assault with a deadly weapon and assessed punishment, enhanced by a previous felony conviction, at forty years confinement for each count. Jones appeals. In twelve issues, he asserts the trial court erred by: not declaring a mistrial; not quashing the indictments; incorrectly charging the jury in both the guilt-innocence and the punishment stages of the trial; erroneously allowing evidence to be admitted; and failing to have him enter a plea to the enhancement paragraph. We affirm.

BACKGROUND

Shortly after midnight on January 29, 2000, Lisa Brown and her cousin, Timothy Hardin, were traveling west on U.S. Highway 380 in Collin County. Traveling east on Highway 380, Jones turned left immediately in front of Brown without signaling, causing his truck to collide almost head-on with her car. The impact of the collision killed Hardin, broke Brown's right leg, and shattered her ankle.

MISTRIAL

In his first issue, Jones asserts the trial court erred by denying his motion for mistrial when the State improperly introduced evidence that Jones had taken and failed an invalid breath test after his arrest. After voir dire, in a hearing outside the presence of the jury, the court considered Jones's motion in limine requesting that the court prohibit the State from making any reference to the breath test. The State admitted the results of the test were invalid, but it believed the fact that a breath test was given was admissible. The court reserved its ruling.

During direct examination, the following exchange occurred between the State and the arresting officer:

[State]. So he gave a breath specimen at that point?

[Officer]. Yes, he did.

[State]. And at that time, did everything seem okay, the testing procedure?

[Officer]. Yes, sir.

[State]. And later what did you find about the breath test results?

[Officer]. The technical supervisor said that in their opinion that the breath test was invalid.

At trial, Jones objected on the basis that the above testimony violated his motion in limine and requested a mistrial. After initially reserving a ruling, the court instructed the jury that "the breath test was invalid from the beginning. So, in effect, there was none." Prior to the start of testimony the following day, the trial court, in a hearing outside the presence of the jury, again considered the issue of the invalid breath test and denied Jones's request for a mistrial.

On appeal, Jones asserts the State improperly introduced the breath test after it agreed it would not do so. Jones specifically complains the State violated its agreement by eliciting the preceding testimony from the officer who arrested Jones. Jones reconciles the difference between his objection at trial and his complaint before us by explaining that his motion in limine was not "truly a motion in limine." As such, his true objection at trial really went to "the State's violation of its agreement not to introduce evidence concerning the breath test taken by [Jones]." Citing Nunfio v. State, 808 S.W.2d 482 (Tex.Crim. App.1991), overruled on other grounds by Barajas v. State, 93 S.W.3d 36 (Tex.Crim. App.2002), Jones implicitly argues he preserved this issue for our review because his true objection at trial is the same as the issue he complains of on appeal.

We find Jones's implicit argument unconvincing. Whether Jones's motion in limine was "truly a motion in limine" is not relevant to our analysis, so we offer no opinion on whether Jones's contention is correct. If a party asserts a different complaint on appeal than its objection made at trial, the party waives the issue. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim.App.1990). Jones reliance on Nunfio is misplaced because Nunfio does not eliminate or provide an exception to this general rule. Nunfio only provides a narrow exception to the general rule that a party, to preserve error, needs to re-urge an objection at trial when it received an adverse ruling on a motion in limine. 808 S.W.2d at 484. No party argues this error was not preserved because Jones failed to object; only that Jones waived this issue because his expressed objection at trial, a violation of his motion in limine, does not comport with his complaint, improper introduction of evidence, on appeal. See Rezac, 782 S.W.2d at 870.

Moreover, an objection at trial needs to be timely to preserve error for our review. Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App.1997). In order to be considered timely, the objection must be made at the first opportunity or as soon as the basis of the objection becomes apparent. Id. Unless the defendant can show a legitimate reason for not timely objecting, error is waived if an objection is made after the State has elicited the improper testimony. Id. Jones did not object until after the officer's last response stated above. However, the basis for Jones's objection became apparent after the State's first question; thus, by waiting, Jones failed to timely object. See id. Jones also has not shown any legitimate reason for his failure to timely object. See id. Consequently, Jones has waived this issue for two reasons: (1) his failure to timely object; and (2) because his objection at trial does not comport with his complaint on appeal. See id.; Rezac, 782 S.W.2d at 870; see also Tex.R.App. P. 33.1.

Assuming, however, the trial court erred and that error was not waived, we would nevertheless conclude the error was harmless. See Tex.R.App. P. 44.2(b); see also Schutz v. State, 63 S.W.3d 442, 443 (Tex.Crim.App.2001). A violation of the evidentiary rules that results in the erroneous admission of evidence is non-constitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. See Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App.1999) (holding any error in admission of hearsay testimony was harmless in light of other properly admitted evidence proving same fact). In addition to the breath test, there is ample evidence in the record that supports the State's contention that Jones was intoxicated. Furthermore, we are left with the fair assurance that the State's elicitation from the officer about the invalid breath test did not influence the jury, or influenced the jury only slightly. See Schutz, 63 S.W.3d at 443. Accordingly, we resolve Jones's first issue against him.

INVALID INDICTMENTS

Jones's second through fifth issues are interrelated, so we address them together. In two issues, Jones asserts the trial court erred by denying Jones's motion to quash the indictments. Specifically, he complains the indictments were defective because they did not provide Jones with effective notice of how he allegedly acted recklessly. In Jones's other two related issues, he asserts the trial court also erred because the jury charge included the verbatim language from the putatively defective indictments.

When the State alleges recklessness as an element of an offense, the indictment must identify with sufficient certainty the acts the accused committed recklessly so the accused has effective notice. State v. York, 31 S.W.3d 798, 801 (Tex.App.-Dallas 2000, pet. ref'd); see also Tex.Code Crim. Proc. Ann. art. 21.15 (Vernon 1989). When reviewing a trial court's ruling on a motion to quash, we will not reverse unless the court abuses its discretion. York, 31 S.W.3d at 800-01; see also Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim.App.1981) (op. on reh'g) (en banc). A trial court abuses its discretion by denying a motion to quash only if the language of the indictments is so vague or indefinite as to provide no effective notice on how the accused's acts were committed recklessly. York, 31 S.W.3d at 800-01; see also Thomas, 621 S.W.2d at 163.

In this case, the indictments alleged Jones recklessly operated his truck by driving it while intoxicated and by failing to yield the right of way when he turned into Brown's car. We conclude the indictments identified with sufficient certainty Jones's acts; thus, he had effective notice on how he allegedly acted recklessly. Compare Crume v. State, 658 S.W.2d 607, 609 (Tex.Crim.App.1983) (holding sufficient notice; defendant "caused his vehicle to collide with the victim by failing to guide his vehicle away from the victim"), with Cole v. State, 556 S.W.2d 343, 344 (Tex.Crim.App.1977) (holding insufficient notice; defendant "permitted or suffered a motor vehicle under his control to collide and be in a collision with another motor vehicle"). Accordingly, the trial court did not abuse its discretion by denying Jones's motion to quash; therefore, we resolve Jones's second and third issues against him. See York, 31 S.W.3d at 801; see also Thomas, 621 S.W.2d at 163. Furthermore, because the indictments were sufficiently certain, we conclude the trial court did not err by including the language of the indictments in the charge. As such, we resolve Jones's fourth and fifth issues against him. See Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994).

ADMISSION OF EVIDENCE

In three issues, Jones asserts the trial court erred by admitting inadmissible evidence. Specifically, he asserts in issues six and seven, respectively, that the trial court erred by allowing a witness to testify in the...

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