Adams, Nathan v. State ( 2006 )

Affirmed and Memorandum Opinion filed February 9, 2006

Affirmed and Memorandum Opinion filed February 9, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00536-CR

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NATHAN ADAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 02CR2156

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M E M O R A N D U M   O P I N I O N

Appellant, Nathan Adams, appeals his conviction for manslaughter as a lesser-included offense of murder.  In two issues, appellant claims that the trial court abused its discretion by (1) improperly allowing two defense witnesses to be impeached by prior criminal convictions, and (2) excluding the testimony of two witnesses concerning prior acts of aggression by the deceased.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I. Background

Appellant and the deceased, Linda Napoli, began dating in 1993 and bought a house together in Texas City, Texas.  Their relationship soon became tumultuous.  Appellant testified that Napoli became jealous and aggressive when she drank and accused him of wanting to be with other women.  According to appellant, on one such occasion she slapped him, and on another, she threatened him with an icepick she kept in her purse. Other witnesses for appellant also testified as to Napoli=s aggressive behavior.  The relationship continued to deteriorate until appellant moved out in 2001. 

Appellant testified that after the couple separated, Napoli began following him and calling around to find out where he was going and who he was seeing.  Appellant stated that Napoli threatened to Afuck [him] up@ after hearing that he took another woman for a drink.  Appellant further testified that Napoli drove by appellant=s house late one night in February of 2002 and saw a car that she did not recognize. Napoli knocked on appellant=s door and began screaming at him as soon as he let her in.  She searched the house and the garage for another woman, and when she did not find anyone, she picked up a can opener and tried to hit appellant.  Appellant blocked her with his hand and told her that he would call the police if she did not leave.  She did not leave, and he called the police.  The police told Napoli to leave and gave her a criminal trespass warning.

On September 2, 2002, appellant went to a local bar.  Napoli arrived at the same bar a little later and the two exchanged words.  According to appellant, Napoli was Araising hell with [him]@ because he had not stopped by the house.  Appellant tried to explain to her that he did not have any reason to come by, and he did not know that she expected him to do so.  Appellant left the bar.  Later that evening, appellant went to a different bar.  Napoli arrived shortly thereafter, ordered a beer, and told the bartender that appellant would pay for her beer.  Appellant paid for her beer and left at around 9:00 p.m.

According to appellant, the following events occurred after he went home that evening.  Napoli knocked on appellant=s door.  As soon as appellant opened the door and let her in the house, she screamed at him and stated that she hoped he was killed on his motorcycle.  Napoli tried to scratch appellant=s face and eyes. Appellant tried to block her, pushing her over the corner of the coffee table onto the couch.  Napoli immediately began digging for something in her purse.  Appellant knew that Napoli carried an icepick and a razor in her purse.  He had never seen her so mad and did not know what she was going to do, so he retrieved his gun.  He did not intend to use the gun but thought that Napoli would leave once she saw it. After he got the gun, he came into the room where Napoli was seated and told her to leave.  Napoli threw her hands up and hit his wrist, causing the gun to fire.

Appellant called 911, reported an accidental shooting, and waited for the police officer to arrive at the scene.  Napoli was found seated on the couch with a cigarette in her mouth.^[1]  There were no signs of a struggle at the scene, but Napoli=s right arm was sitting on her purse, from which an ice-pick was later recovered.  A medical examiner determined that the cause of Napoli=s death was a gunshot wound to the head.  He further determined that the gun was between two inches and two feet away when it was fired.  Appellant was convicted of manslaughter and punishment was assessed at eighteen years= confinement.

I. Improper Impeachment

Appellant first contends that the trial court erred by improperly allowing two witnesses to be impeached by prior criminal convictions.  However, appellant has failed to preserve error with respect to each witness.

With respect to the first witness, Shirlyn Bobbit, appellant objected at trial to the relevance of a prior conviction introduced for impeachment purposes.^[2]  The trial court specifically overruled the objection as to relevance.  On appeal, appellant claims that the conviction was inadmissible under Rule 609 of the Texas Rules of Evidence.  See Tex. R. Evid. 609(c) (providing in relevant part that evidence of a prior conviction is not admissible if probation has been satisfactorily completed and the person has not been convicted of a subsequent felony or crime involving moral turpitude).  No error is preserved when the objection at trial differs from the complaint made on appeal.  Coffey v State, 796 S.W.2d 175, 179B80 (Tex. Crim. App. 1990); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986).  Because appellant did not object at trial that the conviction was inadmissible under Rule 609, nothing was preserved for review.

The second witness was Peggy Egbert, an acquaintance of appellant employed at a local bar. Appellant contends that the trial court erred in allowing her to be impeached with a prior conviction of a third party.  At trial, the witness described the bar as hosting charitable and other public interest events frequented by local judges and police officers.  The State asked on cross-examination whether the witness was working when her employer=s assets were seized and charges were filed Afor gambling - gambling equipment, gambling paraphernalia.@  The witness responded to the effect that she was employed there but was not present at the time.  The State then asked the witness whether she was in the courthouse when her employer was convicted.  The witness responded, Ano.@ After this exchange, counsel for appellant objected on the ground that the questioning was improper character impeachment.  The State argued that the evidence was admissible to correct the witness=s misleading portrayal of the bar as frequented by law enforcement officials. The trial court overruled appellant=s objection, but no further questions were asked about gambling or the charges filed.

To preserve error for appellate review, a defendant must make a specific and timely objection at trial. Johnson v. State, 878 S.W.2d 164, 167 (Tex. Crim. App. 1994); Thomas, 723 S.W.2d at 700.  When the grounds for objection are apparent from the question, an objection is considered timely if it is made before the witness answers and the testimony is received into evidence.  Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). If an appellant Afails to object until after an objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely and error is waived.@ Id.  Here, the prior convictions which formed the basis for appellant=s objection were the subject matter of the State=s questions.  Appellant=s ground for objection was therefore apparent from those questions. However, appellant waited to object until after the witness had answered both questions. Therefore, appellant=s failure to make a timely objection at trial waived any error for review.  See id.  Appellant=s first issue is overruled.

II. Prior Violent Acts of the Deceased

In his second issue, appellant contends that the trial court erred by excluding evidence of two prior acts of violence by the deceased, Linda Napoli.  We review the trial court=s decision to exclude evidence under an abuse-of-discretion standard.  Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)).  A trial court abuses its discretion if its decision to exclude evidence falls outside the zone of reasonable disagreement.  Id.

Outside the presence of the jury, the trial court heard the proffered testimony of two witnesses regarding two acts of violence by Napoli that occurred over twenty years before trial. The first witness testified that in the late 1970s, Napoli pointed a gun through the witness=s car window.  He further testified that Napoli pulled the trigger, but the gun did not fire because his passenger placed her finger between the firing pin and the hammer.  The second witness testified that twenty-five to thirty years before trial, she was sitting at a table with Napoli when Napoli pulled a razor out of her purse and attempted to cut the witness.

The State objected that the evidence was remote and any relevance was substantially outweighed by its prejudicial effect.  See Tex. R. Evid. 403.  The court sustained the State=s objections.  Appellant argues that the issue of self-defense was raised, and the prior acts were admissible under 404(b) and 403 of the Rules of Evidence.  Rule 404(b) provides in relevant part that evidence of other crimes, wrongs or acts of a person is admissible only to the extent it has relevance apart from character conformity.  See Tex. R. Evid. 404(b).  However, even assuming the evidence was admissible under Rule 404(b), we conclude that the trial court was within its discretion to exclude the evidence pursuant to Rule 403.  See Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999) (holding that evidence admissible under Rule 404(b) may nonetheless be excluded under Rule 403).

Under Rule 403, the trial court may exercise its discretion to exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or needless presentation of cumulative evidence.  Tex. R. Evid. 403; Mozon, 991 S.W.2d at 846B47. The relevant criteria in weighing the evidence under Rule 403 include the following: (1) how compellingly the evidence serves to make a fact of consequence more or less probable; (2) the potential the evidence has to impress the jury in an irrational but indelible way; (3) the time appellant would need to develop the evidence, during which the jury would be distracted from consideration of the indicted offense; and (4) appellant=s need for the evidence; i.e., whether appellant has other evidence available to establish the fact and whether the fact is related to an issue in dispute.  Mozon, 991 S.W.2d at 847. 

Here, the proffered evidence served to make it more probable that Napoli was the first aggressor.  The fact that she previously attacked someone with a weapon from her purse while seated makes it more likely that she used the same method of attack against appellant.  In addition, the evidence that she previously acted recklessly with a firearm is relevant to demonstrate why she might have attempted to struggle with appellant instead of immediately leaving as soon as she saw the gun.  The evidence was developed on the record within a few pages of testimony.  However, the probative value of the two prior incidents was reduced by the fact that both incidents occurred over twenty years before trial.  Thus, the remoteness of the evidence rendered it less compelling and more likely to impress the jury in an irrational but indelible way.

Moreover, appellant offered other evidence to prove that Napoli was the first aggressor. Appellant testified that she carried an icepick or razor in her purse.  Other witnesses testified that Napoli was known to carry weapons in her purse, and an ice-pick was found in her purse.  Appellant also introduced opinion and reputation evidence as to Napoli=s violent and aggressive character.  In addition, the trial court admitted other, more recent, prior violent acts of Napoli into evidence, including an incident in which she attacked appellant with a can opener within a year before her death.  See Reynolds v. State, No. 01-01-00407-CR, 2002 WL 31478843 (Tex. App.CHouston [1st Dist.] Nov. 7, 2002, pet. ref=d) (not designated for publication) (holding the trial court acted within its discretion by excluding evidence of an extraneous offense that occurred twenty-one years before the alleged murder at issue when other evidence of more recent extraneous conduct was admitted).

In light of the remoteness of the prior acts, the danger of unfair prejudice, and the cumulativeness of the evidence, we cannot conclude that the trial court=s ruling was outside the zone of reasonable disagreement.  Because the trial court acted within its discretion in excluding evidence as to Napoli=s prior acts of violence, we overrule appellant=s second issue.

Accordingly, the judgment of the trial court is affirmed. 

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed February 9, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The police officer who first arrived at the scene testified that when he found Napoli, she still had a cigarette in her mouth. However, appellant argued at trial that the cigarette must have subsequently been found on the floor.

^[2]  Appellant  stated the grounds for his objection as follows: AMy response really would be relevance.  What does that have to do with the testimony that she=s given today?@