James Albert Duke v. State ( 2005 )

Opinion issued February 3, 2005

In The

Court of Appeals

For The

First District of Texas

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NO. 01-03-01218-CR

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JAMES ALBERT DUKE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 411th District Court

Trinity County, Texas

Trial Court Cause No. 8671

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MEMORANDUM OPINION

          Appellant, James Albert Duke, pleaded guilty to aggravated assault with a deadly weapon and true to two felony convictions for driving while intoxicated. A jury assessed punishment at 85 years’ confinement. Duke contends that the trial court erred in excluding evidence of the complainant’s criminal background and in denying his challenges for cause. We affirm.

Background

          Duke lived in a trailer camp at Ed’s Marina. On August 8, 2002, Casey Sizemore visited the trailer camp. Sizemore threatened and gestured at Duke. Afraid of Sizemore, Duke retrieved a large fishing knife from his trailer and stabbed Sizemore. Sizemore died as a result of the stab wound.

          The State indicted Duke for murder and aggravated assault. At trial, the State abandoned the murder charge and proceeded on the aggravated assault charge.

Victim Character Evidence

          Duke contends that the trial court erred in excluding evidence of Sizemore’s criminal background. We review a trial court’s ruling on the admissibility of evidence under an abuse of discretion standard, in light of the evidence before the trial court at the time it made the ruling. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We must uphold the ruling if it was within the zone of reasonable disagreement. See id.

          Duke contends that he was afraid of Sizemore, and that the jury, in order to understand the context of his fear, was entitled to hear about Sizemore’s criminal background. Duke asserts that the State opened the door to Sizemore’s prior drug offenses when Julie Loitz, the marina owner, testified that she had no “issue or problem” with Sizemore “coming back and visiting” the marina. During direct examination by the State, Loitz testified as follows:

Q.So it was not unusual to see Mr. Duke drinking?

A.No, sir.

Q.If Mr. Duke had somehow contacted you or your husband, would you all – and said there was a problem, would you all have taken some action to do what you needed to do to fix it?

A.Yes, sir.

Q.Do you have some confidence that you can call the sheriff’s office and get help?

A.Yes, sir.

Q.And you had no issue or problem with [Sizemore] coming back and visiting your marina?

          A.      No sir, not at all.

          Duke contends that Loitz’s testimony gave the jury a false impression that Sizemore was a non-threatening, law abiding citizen. Duke offered Sizemore’s prior drug offenses in a bill of exception through a series of “have you heard” questions. Loitz replied that she had not heard about the offenses. Duke contends on appeal that such evidence was admissible to correct the “false impression” left from Loitz’s testimony.

          Earlier in the trial, however, Duke testified during direct examination about Sizemore’s criminal history:

That wasn’t the first time he threatened me. . . . Before that night he had told me that he didn’t have any problem, you know, killing somebody. . . . Then he told me, he said, “I was in the pen for drug dealing, and I don’t have any problem with any of this.”

The State did not object. No harm results when a trial court excludes evidence, if the court admits other evidence of substantially the same nature. Womble v. State, 618 S.W.2d 59, 62 (Tex. Crim. App. 1981) (holding that exclusion of defendant’s statement was harmless because same testimony later admitted without objection). Here, the excluded questions sought answers that were cumulative of Duke’s testimony; therefore, the trial court did not abuse its discretion in excluding them. See id.

Challenges for Cause

          Duke contends that the trial court erred in “allowing members onto the jury who could not consider the entire range of punishment.” We construe Duke’s contention as a complaint that the trial court improperly denied his challenges for cause. The State responds that Duke did not preserve error. To preserve error for review of a trial court’s denial of a challenge for cause, an appellant must (1) assert a clear and specific challenge for cause, (2) use a peremptory strike on the complained-of veniremember, (3) exhaust his peremptory strikes, (4) request additional peremptory strikes, (5) identify an objectionable juror, and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had a strike to use. Allen v. State, 108 S.W.3d 281, 282 (Tex. Crim. App. 2003).

          On appeal, Duke contends the trial court erred in allowing prospective jurors 15, 23, 24, 34, and 44 to serve on the jury. The record shows that Duke did not challenge for cause jurors 15 and 24; thus, Duke did not preserve error with respect to those jurors. See Escamilla v. State, 143 S.W.3d 814, 821-22 (Tex. Crim. App. 2004) (holding no preservation of error because defendant told trial court he did not have challenge for cause). Duke challenged for cause jurors 23, 34, and 44. The record does not reflect that Duke either used a peremptory challenge on those jurors or requested additional peremptory challenges. See Nelson v. State, 848 S.W.2d 126, 134 (Tex. Crim. App. 1992) (holding no preservation of error because trial court did not deny request for additional peremptory challenge and defendant did not identify objectionable juror). Nor does the record reflect that Duke identified an objectionable juror and claimed that he would have struck that juror with a peremptory challenge. See id. Duke therefore did not preserve error with respect to jurors 23, 34, and 44. See id.

Conclusion

          We hold that the trial court did not abuse its discretion in excluding evidence of Sizemore’s criminal background and in denying Duke’s challenges for cause. We therefore affirm the judgment of the trial court.

                                                             Jane Bland

                                                             Justice

Panel consists of Chief Justice Radack and Justices Higley and Bland.

Do not publish. Tex. R. App. P. 47.2(b).