Ivory Lee Hughes v. State ( 2014 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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IVORY LEE HUGHES, No. 08-12-00225-CR
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Appellant, Appeal from
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v. Criminal District Court No. 1
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THE STATE OF TEXAS, of Dallas County, Texas
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Appellee. (TC # F-1161294-H)
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OPINION
Ivory Lee Hughes appeals his conviction of aggravated assault with a deadly weapon. A
jury found Appellant guilty and made a special finding that the appeal was a family violence
offense. The trial court assessed Appellant’s punishment at imprisonment for twenty years and a
fine of $10,000.1 For the reasons that follow, we affirm.
FACTUAL SUMMARY
On September 18, 2011, the complainant, Erica High, and her sister, Latosha Fry, were at
High’s apartment watching television with their children. Erica had been in a romantic
relationship with Appellant, who was the father of her children. Because she had decided to end
the relationship, she and Fry packed Appellant’s belongings into bags and placed them in the
1
The Texas Supreme Court transferred this case from the Fifth Court of Appeals to the Eighth Court of Appeals
pursuant to a docket equalization order. We will decide the case in accordance with the precedent of the Fifth Court
of Appeals. See TEX.R.APP.P. 41.3.
living room. When Appellant came to the apartment, High let him inside to collect his
possessions. Appellant initially walked into the bedroom and closet, but High told him that she
had already packed his belongings. At Appellant’s request, High and Fry helped him carry the
bags to the car. At first, Appellant seemed calm but he became increasingly hostile and angry.
When they returned to the apartment, he began yelling at High and walking towards her. Based
on Appellant’s facial expression and demeanor, High believed something was about to happen.
She pulled out her phone to call the police. Appellant suddenly pulled a gun out of his
waistband, held it against High’s head, and threatened to kill her if she called the police. High
realized Appellant had retrieved the gun out of their bedroom when he walked in there earlier
and she knew the gun was loaded. Fearing for her life, High gave the phone to Fry and
Appellant took it from her. The jury found Appellant guilty of aggravated assault with a deadly
weapon as charged in the indictment.
EXTRANEOUS OFFENSE
In Point of Error One, Appellant contends that the trial court abused its discretion by
overruling his objection to extraneous offense testimony which violated a motion in limine. The
State responds that Appellant failed to preserve the issue by making a timely and specific
objection. We agree.
Preservation of Error
To preserve error, a party must make a timely and specific objection. TEX.R.APP.P.
33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). Additionally, the
arguments on appeal must comport with the objections made at trial. See Reyna v. State, 168
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S.W.3d 173, 177 (Tex.Crim.App. 2005); Wilson, 71 S.W.3d at 349. A ruling on a motion in
limine does not preserve error. Roberts v. State, 220 S.W.3d 521, 533 (Tex.Crim.App. 2007).
To preserve error related to the admission of evidence, the complaining party must object and
secure an adverse ruling in a hearing held outside of the jury’s presence or when the evidence is
offered at trial. See TEX.R.APP.P. 33.1; TEX.R.EVID. 103(a)(1).
The clerk’s record does not contain a pre-trial motion from Appellant related to
extraneous offenses, but the State gave written notice of its intent to introduce several extraneous
offenses during the State’s case-in-chief or during punishment. After trial began and
immediately before the State called its first witness, Latosha Fry, Appellant made an oral motion
in limine regarding whether Appellant is on felony probation, whether he is permitted to have a
firearm while on probation, whether he is employed, whether he was selling drugs, and the
source of his money. The trial court granted the motion and the prosecutor assured the court she
would not go into these areas without first approaching the bench. Fry testified that when High
pulled out her phone, she believed High was going to call the police. She explained that High
was afraid of Appellant because they had fought on other occasions. The following exchange
subsequently occurred between the prosecutor and Fry when she was describing the scene while
Appellant held the gun to High’s head:
[Prosecutor]: Okay. And how do you know she was going to try to call the
police?
[Witness]: Because she was scared, and I figured -- she had called the police on
him before.
[Defense counsel]: Your Honor, object on -- on Motion in Limine and pretrial
objections.
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[The Court]: Overruled.
After Fry’s testimony had concluded and High had entered the courtroom, Appellant asked that a
motion in limine be granted with respect to previous assaults, threats, and calls to the police. In
making this request, Appellant noted that the first witness testified that High had called the
police about Appellant in the past.
The motion in limine did not preserve error related to any of Fry’s testimony. Appellant
failed to object when Fry first testified that High had called the police about Appellant on prior
occasions. When Fry repeated that statement later during her testimony, Appellant made only a
general objection which referred to his motion in limine and pretrial objections. We have not
found any pretrial objections in the appellate record related to extraneous offenses or Fry’s
testimony. Even assuming for the sake of argument that the motion in limine could preserve
error, Appellant did not move to in limine extraneous offenses or bad acts. Accordingly, we
conclude that Appellant failed to preserve this issue for our review. Point of Error One is
overruled.
BILL OF COSTS
In Point of Error Two, Appellant complains that there is insufficient evidence to support
the trial court’s judgment requiring him to pay court costs in the amount of $264. Each clerk of
a court is required to keep a fee record. TEX.CODE CRIM.PROC.ANN. art. 103.009(a)(West 2006);
see Owen v. State, 352 S.W.3d 542, 547 (Tex.App.--Amarillo 2011, no pet.). A statement of an
item of cost in a fee record is prima facie evidence of the correctness of the statement.
TEX.CODE CRIM.PROC.ANN. art. 103.009(c). A cost is not payable by the person charged with
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the cost until a written bill is produced or is ready to be produced, containing the items of cost,
signed by the officer who charged the cost or the officer who is entitled to receive payment for
the cost. TEX.CODE CRIM.PROC.ANN. art. 103.001.
The original clerk’s record does not include a bill of costs. In this situation, the Fifth
Court of Appeals typically orders the trial court clerk to prepare and file an itemized bill of costs.
See e.g., Franklin v. State, 402 S.W.3d 894, 895 (Tex.App.--Dallas 2013, no pet.). We have
determined it is appropriate to apply the precedent of the Fifth Court of Appeals in accordance
with transfer protocol. See TEX.R.APP.P. 41.3. Consequently, we issued an order requiring the
Dallas County District Clerk to file a supplemental record containing an itemized bill of costs.
The supplemental clerk’s record has been filed and the bill of costs contained therein supports
the assessment of costs in the judgment. We overrule Point of Error Two and affirm the
judgment of the trial court.
December 17, 2014
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Rivera, J., not participating)
(Do Not Publish)
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