Michael Ray Kennedy v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00353-CR
MICHAEL RAY KENNEDY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 67,789-E, Honorable Douglas Woodburn, Presiding
July 16, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
A jury convicted appellant Michael Ray Kennedy of aggravated assault with a
deadly weapon.1 In so doing, it found appellant pointed a gun at Alice Monnet, a person
with whom he briefly cohabitated. The jury assessed appellant’s punishment at twenty-
1
See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). This offense is a second
degree felony. TEX. PENAL CODE ANN. § 12.33 (West 2011).
nine years in prison and the trial court imposed sentence accordingly. Punishment was
enhanced by two prior felony convictions.2 We will affirm the judgment of the trial court.
Background
Because appellant does not challenge the sufficiency of the evidence, we will
state only those facts necessary for the disposition of the appeal. At the hearing on the
State’s motion in limine the trial court considered the admissibility of prior convictions to
impeach two of the State’s witnesses.3 The prosecutor expressed a belief that Monnet
had seven convictions admissible for impeachment. The court stated if Monnet testified,
her convictions were admissible. Another State’s witness, Sally Vasquez, was said by
the prosecutor to have one prior felony conviction. He added that Vasquez, “has been
previously arrested in the past several times for Misdemeanor Class B theft by check;
however, none of those were theft convictions. All of those were actually reduced down
to Class C, Issuance of a Bad Check. . . .” Accordingly, the court ordered in limine that
the issuance-of-bad-checks convictions could not be mentioned at trial unless their
admissibility was first established outside the presence of the jury.
The State called Vasquez and Monnet during its case-in-chief on guilt-innocence.
Evidence on direct and cross-examination established Vasquez was previously
convicted for felony theft. The judgment of conviction, admitted as a defense exhibit,
indicated the theft occurred over a three-year period between 2008 and 2011. The
2
See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014) (specifying under
stated conditions enhanced imprisonment range of life or twenty-five to ninety-nine
years).
3
See TEX. R. EVID. 609.
2
value of the property Vasquez stole was $100,000 or more but less than $200,000.
During trial, appellant’s counsel did not ask the court to reconsider its order in limine
concerning Vasquez’s alleged convictions for “Class C, issuance of a bad check,” nor
did appellant make an offer of proof supporting these convictions.
Monnet was brought to trial as a State’s witness wearing jail clothes. She agreed
on direct examination that she was “serving [her] time” after pleading guilty to burglary,
robbery, and unauthorized use of a motor vehicle. Monnet also agreed to previously
pleading guilty to burglary of a building in 2012 and theft, credit card abuse, and
fraudulent use of identification information in 2009. Later during direct examination she
admitted using drugs on the day of the alleged assault and expressed a belief that she
and appellant were “high” at that time. On cross-examination, Monnet admitted using
methamphetamine on the day of the assault. She further admitted prior convictions for
“unauthorized use of a motor vehicle,” “burglary of a habitation,” “robbery,” “burglary of a
building,” “forgery by passing,” and “fraudulent possession of identifying information.”
Corresponding judgments were admitted into evidence without objection.
Later during Monnet’s cross-examination, the following occurred:
[Defense Counsel]: Did you also get convicted of carrying a prohibited
weapon in–
[The Prosecutor]: Objection, Your Honor. May we approach?
The Court: Sure.
(At bench, on the record)
[Defense Counsel]: Judge, this girl has two–this young lady has two
more–
3
The Court: Well, we talked about this before this ever started and you said
those are the only ones that you had.
[Defense Counsel]: Right. And I found out she has two more; possession
of prohibited weapon and substance—prohibited weapon convictions in
misdemeanor court and County Court at Law.
The Court: Okay. I’m not going to allow it. You’ve already said what you
said. I’ll instruct the Jury to disregard.
(Open court)
The Court: Ladies and Gentlemen, you’re instructed to disregard that last
question.
Analysis
In his sole issue on appeal, appellant complains the trial court abused its
discretion by excluding evidence of Vasquez’s alleged convictions for issuing a bad
check and Monnet’s alleged two additional convictions.
Appellant chose not to pursue impeachment of Vasquez with her alleged bad-
check convictions. Although raised at the motion in limine hearing, the matter was not
broached at trial. A motion in limine, whether granted or denied, preserves nothing for
appellate review. Griggs v. State, 213 S.W.3d 923, 926 n.1 (Tex. Crim. App. 2007)
(citing Manns v. State, 122 S.W.3d 171, 190 (Tex.Crim.App. 2003) and G. Dix & R.
Dawson, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 42.152 (2d ed. 2001)).
Concerning Monnet’s two alleged additional convictions, counsel’s statement to
the court related some information regarding the impeachment evidence he sought to
introduce, but it was insufficient to meet the offer of proof requirement of Rule of
4
Evidence 103(a)(2). Nothing is preserved for our review. 4 TEX. R. EVID. 103(a)(2) (to
preserve error on exclusion of evidence party must make substance of the evidence
known to the court unless apparent from context); Mays v. State, 285 S.W.3d 884, 889-
890 (Tex. Crim. App. 2009) (applying Rule 103(a)(2)); TEX. R. APP. P. 33.1(a).
Moreover, even assuming arguendo it was error to exclude the complained-of
evidence concerning the convictions of Vasquez and Monnet, any error was harmless.
TEX. R. APP. P. 44.2(b). These two witnesses were thoroughly cross-examined and
their character for truthfulness challenged. We are satisfied the additional convictions
would have carried little or no additional impeachment weight. TEX. R. EVID. 609(a).
Appellant’s issue is overruled, and the judgment of the trial court is affirmed.
James T. Campbell
Justice
Do not publish.
4
For proof of the alleged convictions of Vasquez and Monnet, appellant refers us
to documents attached to his amended motion for new trial. His motion for new trial
does not satisfy the offer of proof requirement of Rule 103(a)(2). See TEX. R. EVID.
103(c) (court must allow party to make an offer of proof as soon as practicable and
before charge is read to jury).
5