Render v. State

• Decision Date: 23 November 2011
• Docket Number: 11–09–00268–CR.,Nos. 11–09–00263–CR,s. 11–09–00263–CR
• Citation: 347 S.W.3d 905
• Parties: Jamar James RENDER, Appellant,v.STATE of Texas, Appellee.
• Court: Texas Court of Appeals

347 S.W.3d 905

Jamar James RENDER, Appellant,

v.STATE of Texas, Appellee.

Nos. 11–09–00263–CR

11–09–00268–CR.

Court of Appeals of Texas, Eastland.

Aug. 18, 2011.Discretionary Review Refused Nov. 23, 2011.

Connie J. Kelley, Austin, for Appellant.Micheal Murray, Dist. Atty., Tommy M. Adams, Asst. Dist. Atty., Brownwood, for Appellee.Panel consists of: WRIGHT, C.J., McCALL, J., and KALENAK, J.

OPINION

TERRY McCALL, Justice.

In Cause No. 11–09–00263–CR (Trial Court Cause No. CR19974), the jury convicted Jamar James Render of aggravated assault. The jury assessed punishment, enhanced by a prior felony conviction, at confinement for fifteen years. In Cause No. 11–09–00268–CR (Trial Court Cause No. CR19973), the jury convicted appellant of manslaughter. The jury assessed punishment, enhanced by a prior felony conviction, at confinement for thirty years. The trial court sentenced appellant accordingly and ordered that the sentences run concurrently. We affirm.

The Charged Offenses

In Cause No. 11–09–00263–CR, the indictment alleged that, on or about February 28, 2008, appellant committed the offense of aggravated assault by “intentionally, knowingly, or recklessly caus[ing] serious bodily injury to Brent McCormick Tomlinson by hitting him in the head with his hand, a metal object or unknown object, or by causing him to fall and hit his head, or by kicking him.” The jury convicted appellant of the charged offense. In Cause No. 11–09–00268–CR, the indictment alleged that, on or about February 28, 2008, appellant committed the offense of murder by “intentionally or knowingly caus [ing] the death of an individual, namely, James Lee Holland, by hitting him in the head with his hand, a metal object or unknown object, or by causing him to fall and hit his head, or by kicking him.” The jury convicted appellant of the lesser included offense of manslaughter.

Issues on Appeal

Appellant does not challenge the sufficiency of the evidence to support his convictions. Appellant presents nine points of error for review. In his first three points, appellant contends that the trial court erred by admitting testimony that violated the Confrontation Clause and that was inadmissible hearsay. In his fourth point, appellant contends that the trial court erred by denying his motion to quash the indictments. In his fifth and sixth points, appellant asserts that the trial court erred by admitting evidence of an extraneous assault. In his seventh and eighth points, appellant contends that the trial court erred by denying his requested jury instructions on self-defense. In his ninth point, appellant argues that the trial court erred by informing the jury during punishment deliberations that appellant's sentences would be served concurrently.

The Evidence at Trial

We have reviewed the evidence, and we will summarize it here. The record shows that, during the night of February 27, 2008, appellant was involved in an altercation with Holland and Tomlinson. At that time, appellant lived in apartment 1002 at the Southside Village Apartments.

Kristi Ramirez and Pablo Celedon lived in apartment 1006 at the Southside Village Apartments. Their apartment was two doors down from appellant's apartment. Ernestina Celedon was Pablo's mother. Kristi knew appellant and his girlfriend, Rebecca York. Kristi testified that, on February 27, 2008, Ernestina came to her apartment. Ernestina told her that people were fighting outside. Kristi said that she could hear a loud argument going on outside. Kristi and Ernestina left the apartment to go to the store. As she left the apartment, Kristi could still hear people arguing. She testified that the argument was between appellant and Holland. Although Kristi did not know Holland at that time, she later learned his identity. Kristi said that she saw a hat in the middle of the parking lot and a man lying facedown on the ground in the handicap parking spot in front of appellant's apartment. The record shows that the man was Tomlinson. Ernestina testified that Tomlinson was shaking like he was dying and that there was a lot of blood on the ground around him. Kristi said that appellant was standing in his doorway. Kristi heard appellant tell Holland that Tomlinson was going to be okay but that he had never been hit that hard before. Kristi said that Holland walked away and appeared to be drunk. Kristi called the police.

On February 27, 2008, at 7:57 p.m., Brownwood Police Officer Troy Grusendorf was dispatched to the apartment complex. When he arrived at the complex, he saw Holland walking across the parking lot and talking on a cell phone. Officer Grusendorf testified that Tomlinson was lying facedown on the pavement. Officer Grusendorf saw vomit and blood on the ground by Tomlinson and could smell the odor of alcohol coming from the concrete. When Officer Grusendorf arrived, appellant was standing over Tomlinson and shaking his shoulder to see whether he was okay. Officer Grusendorf testified that Michael Pierson was at the scene. Appellant and Pierson told Officer Grusendorf that Tomlinson was intoxicated.

Brownwood Police Officer Sky Self also responded to the scene. Officer Self saw Holland walking in the shadows. Upon Officer Self's request, Holland came to him. Officer Self said that Holland was acting extremely nervous and had alcohol on his breath. Holland told Officer Self that there had been an altercation. Officer Self drove Holland to the scene where he said the altercation had occurred. Officer Self said that Tomlinson was lying facedown on the pavement with blood everywhere around him. Officer Self said that Tomlinson was coughing and moaning and that appellant was standing over him.

Brownwood Police Sergeant James Arthur Shannon also arrived at the scene. When he arrived, Tomlinson was lying facedown in the parking lot, and appellant and Pierson were near him. Sergeant Shannon said that it looked like Holland had been in a fight and had been drinking. Sergeant Shannon said that Holland had an abrasion or red mark under his left eye.

Officer Grusendorf believed that Tomlinson had been assaulted because he had a severe laceration on the top of his head. Appellant told Officer Grusendorf that nothing happened in front of his apartment. Appellant told Officer Self that he did not know Tomlinson and Holland. Appellant said that Tomlinson and Holland fought each other and that he tried to break up the fight. He also told Officer Self that he was trying to help Tomlinson get up. Sergeant Shannon spoke with appellant and Pierson and asked to see their hands for possible injuries. Appellant and Pierson did not have any injuries to their hands. Sergeant Shannon said that neither appellant nor Pierson looked like they had been in a fight. Sergeant Shannon said that appellant was calm and cooperative. Appellant told Sergeant Shannon that he heard an argument and then went outside his apartment and saw a man on the ground. The officers did not find any weapon that might have been used in an assault. They did not see any beer bottles, broken bottles, broken glass, beer cans, or spilled liquid in the area where they found Tomlinson.

Roberta Herrera, Mary Ramirez, and Fidencio Ramirez were inside appellant's apartment when the officers arrived at the scene. York was appellant's girlfriend and lived with him. York was not at the apartment when the incident occurred. Sergeant Shannon said that Herrera, Mary, and Fidencio did not have any injuries to their hands. They told him that they did not know anything about a fight. Sergeant Shannon said that a child was asleep upstairs in the apartment.

Appellant and Pierson went inside appellant's apartment. Officer Grusendorf talked with Holland. Officer Grusendorf smelled an odor of alcohol on Holland. Officer Grusendorf said that Holland's demeanor was pretty calm and that Holland appeared to be “punch drunk.” Holland was not worried about himself but was instead worried about Tomlinson. Officer Grusendorf believed that Holland might have been struck in his face because he had a mark on it.

Officer Grusendorf thought that Holland and Tomlinson might have fought each other. Officer Grusendorf asked Holland what happened. Holland told him that Tomlinson was his boss. Holland said that he and Tomlinson came to apartment 1002 to visit a man who owed Tomlinson money. Holland said that appellant punched him (Holland) in the face and that he fell back as a result of being hit. Holland said that he then saw appellant punch Tomlinson in the head. Holland also told Officer Grusendorf that “[w]e got jumped by this one.” Officer Grusendorf testified that, the more Holland talked, the more disoriented he became.

After Officer Grusendorf spoke with Holland, Officer Self and Sergeant Shannon brought appellant and Pierson out of appellant's apartment. Officer Grusendorf asked Holland whether appellant or Pierson, or both of them, assaulted him. Holland identified appellant as the person who assaulted Tomlinson and him. Holland also said that appellant acted alone and that Pierson was not involved in the assaults. Based in part on the lack of any marks on appellant's hands, Sergeant Shannon did not believe that there was enough evidence to arrest appellant at that time.

The police discovered that Holland had two outstanding traffic warrants. Officer Self arrested Holland on the warrants and took him to jail. Officer Self testified that Holland was curious about whether he would be able to get out of jail that night. At the jail, some marihuana fell to the ground from Holland's possession, and Holland was charged with possession of marihuana.

Paramedics were dispatched to the scene. Paramedic Alvin Stewart attended to Tomlinson. Stewart's initial contact with Tomlinson was at 8:10 p.m. Stewart said that there was a puddle of vomit on the ground near Tomlinson. Tomlinson responded to Stewart with gibberish. Stewart testified that Tomlinson was in and out of consciousness and that...